I
I want to begin by comparing two views of human rights, views which some may think to be diametrically opposed even though others may think the views to be directed towards distinct dimensions of those rights. First, there is the view I shall attribute to South, a view perhaps best made manifest in the Universal Declaration of Human Rights of 1948 which claims in its articles 22–27 that ‘everyone, as a member of society … has the right to work, to free choice of employment … to protection against unemployment … to just and favorable remuneration … to rest and leisure … and periodic holidays with pay … to food, clothing, housing, and medical care … to education … to enjoy the arts and to share in scientific advancement and its benefits’.Footnote 1 Initial reactions to these claims might range from doubts about specific items on that list, such as the claim that there is a human right to periodic holidays with pay, to a more general doubt as to the grounds on which the list has been drawn up, or perhaps just conjured up. Both kinds of doubt might draw attention to the key distinction, which South seems dangerously close to overlooking, between the thought that it would be desirable, even highly desirable, that all enjoy, say, periodic holidays with pay and the thought that there is indeed a human right to that: for there is no reason to think that all kinds of desirability, not even the most important kinds of desirability, are to be captured in talk of human rights.
The other view of human rights to be considered here – East's – seems to take more seriously from the outset the idea that whatever else human rights may be they must at least be rights, and while not claiming that legal rights are the only rights there can be this view holds them to be the clearest examples of rights. Oversimplifying considerably, East's suggestion might be that a person's right to something is a specially protected claim to that thing;Footnote 2 in the legal case that special protection takes the form of legal specification of the correlative duties or obligations of specifiable others as regards their actions or omissions in relation to that person and that thing, as well as the specification of the consequences for those others if they do not comply with those imposed duties or obligations, if they do not respect the legal right in question. Moreover, in any reasonably developed legal system of rights there will be institutions in existence to resolve cases of conflicts of rights and to determine and enforce compensation in those cases of this kind in which an individual's right has not been respected, in which that right has been deemed to be overridden by some other person's conflicting right. In these ways the distinction between matters of desirability and the area of (legal) rights is drawn.
East's account invites the thought that any talk of non-legal rights will require that something take the place of the legal institutions and practices just now sketched, will require that something be in place to mark the distinction between goods and rights. Until that is achieved – if it can be achieved – the best way to understand talk of, say, human rights might seem to be that of identifying them with legally recognized rights within a system of institutions and practices like that outlined.
II
The difference between the views of South and East is no mere product of a philosopher's imagination. Recently I attended a conference on human rights, disablement and education organized by the Michoacán Institute for Educational Sciences. Two things were notable. One was the ‘eastern’ character of public officials' participations: questions about the rights of disabled children were invariably answered by reference exclusively to the prevailing legislation. The other was the ‘southern’ character of the public's participations (the public being overwhelmingly students of the Institute and special education teachers): despite the enormous variety of kinds of disablement under consideration, every participating member of the public seemed to feel free to invoke human rights corresponding to his or her special concern, all other participants seeming happy to go along with all those invocations. All other participants but one, that is: an expression of concern about this free and easy use of the language of human rights provoked – as it often does – the suspicion that the notion of human rights was not being taken seriously by that one participant, or even that he was proposing that the very notion of human rights should be abandoned.
In his recent book On Human Rights James Griffin offers an acute diagnosis of what is going on with that pull to the South:
There are strong inflationary pressures on the term [‘human rights’] that have brought about its debasement…, and they are still at work. The belief is widespread that human rights mark what is most important in morality; so whatever any group in society regards as most important, it will be strongly tempted to declare to be a human right. The group will be out to annexe the force of the term for its own keenest concerns. It is now also a common, and not unjustified, belief that getting something widely accepted as a human right is a good first step to getting it made a legal right; so there is a great temptation to assert that anything to which one wants to have a legal guarantee is a human right. And getting something accepted as a human right transforms one's case. One is transformed from beggar (‘you ought to help me’) to chooser (‘it is mine by right’). If one can claim by right, one is not dependent upon the grace or kindness or charity of others.Footnote 3
Griffin concludes that these features of the discourse of human rights ‘are responsible both for great good and great bad’, the bad being ‘the ballooning of the discourse itself’ which I have made the characteristic of southern views.
Ballooning of (discourse about) non-legal rights can take curious forms even at the hands of cautious legal theorists. Jorge Carpizo tells us that when ‘a legal order fails to satisfy the needs, aspirations and ideals of a community, when it is converted into oppression, then the right to revolution is born, but not as a legal faculty, but as a right of life, of reality’.Footnote 4 But why claim that what is ‘born’ in such circumstances is any kind of right? Is the thought that those favoured by the antecedently existing social structures and practices have the duty or obligation to at least not oppose the revolutionary threat to their privileges within those structures and practices? Or, stranger still, is the thought that some imaginable institution would deem that the property rights, say, of those privileged count for less than the ‘right of life, of reality’ encountered by the midwife Carpizo? Even in the event of the revolutionary forces being seriously concerned with the justification of their movement, that justification need not be cast in terms of rights: many kinds of injustice, for example, are not helpfully seen as matters of their transgression, and we fortunately still have a vast, detailed vocabulary for describing and evaluating acts, omissions and circumstances.Footnote 5
The snares are not of course all on one side: easterners also run the risk of being caught in some of them, even if nowadays they run fewer risks than their southern counterparts. The easterner's main risk is that of jettisoning its load along with the irreparably burst balloon, of being so keen to avoid Griffin's ‘great bad’ that he inadvertently sheds the ‘great good’ too. And perhaps the most likely way of the easterner's heightening that risk is through his adoption of some implausibly strong thesis about the ‘separability’ of law and morals, of some such thesis going well beyond the claim, for example, that there exists at least one conceivable ‘rule of recognition’ determining which of a community's norms are legal ones – and so determining a conceivable legal system – that does not specify being true as a moral principle as among the truth conditions for any proposition of law.Footnote 6 Not content with just that a more ‘positivistic’ East might claim there to be no convergence between the norms that constitute the community's law and those that constitute its morality; or that moral considerations are altogether absent from accepted judicial reflection and practice; or even that all moral criticism of existing or proposed laws, legal institutions or legal practices is curiously beside the point. But even as notable a positivist as H.L.A. Hart explicitly embraced at least one of the possibilities such an East would thereby be denying:
A concept of legal rights limited to those cases where the law … respects the choice of individuals would be too narrow. For there is a form of moral criticism of law which … is inspired by regard for the needs of individuals for certain fundamental freedoms and protections or benefits. Criticism of the law for its failure to provide for such individual needs is distinct from, and sometimes at war with, the criticism with which Bentham was perhaps too exclusively concerned, that the law often fails to maximize aggregate utility.Footnote 7
Even worse of course would be the attempt to sidestep the errors of those separability theses by ‘identifying’ morals with the law of the land in such a way as to ‘justify’ the recent assertion of a member of Mexico's Federal Electoral Institute to the effect that the considerable pay increase he and his fellow members had just given themselves was moral because it was legal. That is just another, even sillier, way of trying to render the law immune to moral criticism.
III
Freed of unappetizing excrescence, South's primary concern can now perhaps be understood to be that of emphasizing the possible relevance, within the context of thought and talk of human rights, of moral evaluation of existing or potential laws specifying rights; East's main concern can still be seen as that of demanding within the same context that the distinction between desirabilities and rights be respected in terms broadly similar, say, to those deployed within legal thought and practice. And now there emerges an obvious enough way of not only reconciling but even of combining those concerns in the following proposal: that there is a human right to enjoy ϕ when there is a sufficiently strong moral case showing that the human interest in having ϕ merits special legal recognition and protection, such recognition and protection being practically feasible. Perhaps within moral practice itself something can bridge the distinction emphasized by East and in terms acceptable to him; but whether that is literally so or not, the combined proposal suggests that that gap might anyway be ‘filled’ by consideration of the potential legal practice invited by some sufficiently strong moral argument.
Familiar doubts as to how practically effective moral thought is are curiously ambiguous on this point. On the one hand, those doubts might stimulate thought of the potential importance of legislative embodiment of certain kinds of moral considerations; South and East might coincide at this point, albeit coming from different directions. On the other hand, the familiar doubts might take on an unfamiliar form by inviting the thought that moral reflections are of little practical moment even in terms of promotion of legislation grounded upon them. But even the more sceptical easterners keen to embrace that thought would surely need to consider whether it matters that the pertinent legislative acts be prompted by moral considerations.
IV
Griffin criticizes what can look like a similar proposal which he extracts from Joseph Raz's work on rights: that a human right arises when there are universal human interests sufficient to justify imposing the correlative duties on others.Footnote 8 Griffin holds that this proposal fails to supply a sufficient condition for the existence of such a right, a failing which continues even when the requirement is added that the duties thereby justified be of the particular kind characterized, in terms of a well-known notion of Raz's, as supplying ‘exclusionary reasons’ (elucidated by Griffin as ‘the kind of reason that excludes a certain range of other reasons from being taken into consideration’Footnote 9). To show that acceptance of this proposal would, among other difficulties, return us to an unacceptable ‘ballooning’ of human rights, Griffin invokes one of his favourite kinds of examples:
One partner in an unsuccessful marriage … might treat the other coldly and callously, and the suffering caused the second partner over the years might mount up into something much worse than a short period of physical torture. The first partner, however, simply by being cruel, does not thereby violate the second's human rights.Footnote 10
If such cruelty were sufficient for violation of human rights they would ‘expand to fill most of the domain of well-being’;Footnote 11 more to the present point, however, the supplemented proposal drawn from Raz's work has, to avoid that same failing, to specify the point, on the spectrum running from one spouse's minor unpleasantness to the other to the spouse's most damagingly callous behaviour, at which we ‘reach interests that produce an exclusionary duty’.Footnote 12 A similar example is used by Griffin to criticize attempts to base at least some human rights on some ‘especially fundamental needs’,Footnote 13 on certain of the things human beings need if they are not to be harmed. Harm specifically to human beings, Griffin objects, ‘extends far beyond any plausible ground for human rights’:
One can harm someone by being continually nasty to them; in fact, one can often do more harm that way, which is no violation of their rights, than one can by denying them some minor liberty, which would be.Footnote 14
So if unacceptable ‘ballooning’ is to be avoided, any account of at least some human rights in terms of needs will have to explain just what kinds of harms produced by neglect of needs violate human rights or under just what kinds of circumstances needs generate such rights.
The proposal made here aimed at reconciling the legitimate concerns of South and East is this: there is a human right to enjoy ϕ when there is a sufficiently strong moral case for special legal recognition and protection of the human interest in having ϕ, such recognition and protection being practically feasible whether they be innovatory or continuing. For the moment it does not matter whether this talk of ‘human interest’ be construed in terms specific enough for the proposal made to be a candidate for a specific rôle within a pluralistic account of human rights or whether it be construed as an umbrella term covering other, more specific notions – like those of the components of human agency, of (other) basic needs, perhaps even of certain human vulnerabilities or dependencies – which are to be individually employed within the component proposals of some pluralistic account of the matter. What does matter now is this: respect for East's concern about, say, ballooning requires that the proposal be understood within the context of familiar, obvious enough thoughts about considerations which can make it at least prima facie undesirable that some moral matter receive legal recognition, embodiment or enforcement. Such considerations range, say, from probable unduly frequent difficulties of legal epistemology which would arise for any attempted enforcement of that kind, to the inevitable and undesirable consequences of attempts more or less arbitrarily to strengthen or legally favour one horn of some given dilemma, to sacrifice more or less arbitrarily the evaluative considerations which are in fact practically incompatible with legal enforcement of the considerations favouring that horn. And this matters now since there would be an overwhelming case against any quite general proposal to enforce legally our moral rejection of human nastiness in general or of its perhaps more specific forms within what might be called ‘Carlyle marriages’Footnote 15 in particular; what would be lost, for example, by any such general attempt to police the personal and the private is clear enough. On the proposal put forward here that is more than enough to show that human nastiness in general or even such beastliness within marriage is not, at least in general, an issue of human rights.
V
James Griffin might perhaps complain at this point that the proposal so understood still leaves the notion of human rights ‘nearly criterionless’,Footnote 16 does little or nothing to emend the debasement of the language of human rights; he might even perhaps go on to relate that presumed failing to another, that of the lack of any ‘substantive’ theory of human rights, of any substantive theory determining the legitimate use of the ‘theoretical term’Footnote 17 ‘human rights’.
Griffin's own guiding idea hereFootnote 18 can seem clear enough: ‘that we see human rights as protections of our normative agency’, this last idea being broken down into ‘clearer components’ as follows:
To be an agent, in the fullest sense of which we are capable, one must (first) choose one's own path through life – that is, not be dominated or controlled by someone or something else (call it ‘autonomy’). And (second) one's choice must be real: one must have at least a certain minimum education and information. And having chosen, one must then be able to act; that is, one must have at least the minimum provision of resources and capabilities that it takes (call all of this ‘minimum provision’). And none of this is any good if someone then blocks one; so (third) others must also not forcibly stop one from pursuing what one sees as a worthwhile life (call this ‘liberty’).
On the basis of that idea of ‘normative agency’ – also called that of ‘individual personhood’ – Griffin sets out to show how ‘we can generate most of the conventional list of human rights’: to life, to security of person, to a voice in political decision, to free expression, to assembly, to a free press, to worship, to basic education and minimum provision needed for existence as a person, and not to be tortured. That generation, however, leaves many human rights ‘still too indeterminate’.Footnote 19 In most cases correction of that will require that what Griffin calls ‘practicalities’ be taken into account: universal empirical truths about human nature and human societies, especially those about the limits of human understanding and motivation. In this and other ways the specification of human rights can become more determinate and less abstract:Footnote 20 so we can move from the most abstract expression of those rights found when we just articulate ‘the values we attach to agency’ (autonomy, minimum provision, and liberty), to less abstract expressions which emerge when ‘practicalities’ are taken into account, and finally to the expressions which are the result of the application of these higher-level considerations with increasing attention to far from universal circumstances.Footnote 21
When, in Mexico in 2003, I heard the lectures which evolved into Griffin's book, I was immediately struck by a difficulty facing his then presentation of his theory: that posed by cases of what might be called ‘diminished agency’ and which in the limit Griffin now characterizes as those of ‘persons trapped in non-functioning bodies’.Footnote 22 I was thinking in particular of the case of Diane Pretty and of other patients in the advanced stages of motor neurone disease, but Griffin also mentions now the case of polio patients.Footnote 23 The difficulty posed by such cases seems clear enough. Griffin himself stresses that within his account the ‘word “agency” is used more or less broadly within the spectrum from deliberation to choice to action to outcome’,Footnote 24 and says that if ‘one of these parts is missing, we do not have the values that … are the ground of human rights’. Indeed, even though the kinds of cases under consideration perhaps suggest too that Griffin's account of the components of his idea of normative agency is less clear than might initially seem, it looks at first sight as if in such cases only the first part of the second component of that idea – the component of ‘a certain minimum education and information’ – is present. I say ‘at first sight’ since there is perhaps a case for the third, ‘liberty’ component's also being present in such cases, albeit in a peculiarly redundant form: how could others ‘block’ what is anyway not going to happen? Supposing this last suggestion to be developed in some convincing way, quite what are we to say of persons trapped in non-functioning bodies? That they only have 50% of the usual human rights? That they have all such rights but that those rights only carry 50% of their usual weight in their case? Or even that they have no human rights at all since they simply fail to satisfy the conjunctive condition of normative agency corresponding to Griffin's account of the idea's components?
That last possibility is perhaps suggested by some of Griffin's remarks about the ‘threshold’ character of the notion of agency as understood by him:
What we attach value to, what we regard as giving dignity to human life, is our capacity to choose and to pursue our conception of a worthwhile life. Mental defectives present difficult borderline problems here… But the vast majority of adult mankind are capable of reaching (a factual claim) this valuable state (an evaluative claim). Anyone who crosses the borderline, anyone who rises any degree above the threshold, is equally inside the class of agents, because everyone in the class thereby possesses the status to which we attach high value.Footnote 25
Fortunately, I think, Griffin does not however embrace that possible denial of human rights in such cases. While accepting that human rights are not on his account of the matter universal in the class of human beings, are ‘restricted to the sub-class of human normative agents’,Footnote 26 he also says this:
It is clear to me that, however one explains personhood and the possession of rights, … an alert person trapped inside a non-functioning body must be classed as a person and as a bearer of rights. This is uncontroversial. It can also be accommodated within the personhood account. Because of the value of personhood, we have a duty, correlative to human rights, to restore that person's capacity to act. We think so, for instance, in the case of the crippled; we build special access for them to schools, museums, concert halls, and so on. And we can similarly help persons trapped in non-functioning bodies; we can, for instance, become their surrogate arms and legs; we can become the executors of their rational conceptions of a worthwhile life – perhaps even including a merciful death.Footnote 27
Fortunately, I say, because on the substantial first-order moral issues raised by cases of ‘entrapment’ I am in almost complete agreement with Griffin; but the philosophical issue is another, that of whether Griffin's theory of human rights licenses his saying the ‘uncontroversial’ things he and I both wish to say about those cases. There would be no philosophical problem raised for Griffin's account by such cases, that is, were he in an eastern albeit perhaps controversial spirit to restrict himself in such cases to saying only that whilst it is indeed highly desirable that we try to help the entrapped to ‘restore their capacity to act’ – or at least something like that – still, that is not a matter of our having a duty to do so, a duty ‘correlative to human rights’, nor a matter of their having some specially protected claim on us to offer such help or of their being entitled to that help. But Griffin is apparently unwilling to rest with saying just that.
Still, while tentatively concluding that ‘human rights should not be extended to infants, to patients in an irreversible coma or with advanced dementia, or to the severely mentally defective’,Footnote 28 Griffin stresses that ‘this conclusion is compatible with our none the less having the weightiest obligations to members of all these classes’, and remarks once again that we have ‘constantly to remind ourselves of the destructive modern tendency to turn all important moral matters into matters of rights, especially of human rights’. Supposing, however, that nothing of substance can be settled by some merely stipulated terminological contrast between ‘duties’ and ‘obligations’, Griffin's observations here seem to heighten the puzzlement as to quite why he is happy in entrapment cases to talk of ‘a duty, correlative to human rights’, not limiting himself to talk just of ‘the weightiest obligations’ to patients involved in such cases: happy talk which seems simply to beg the question as to how his theory can account for the presumed rights.
VI
Griffin seeks to justify what he wishes to say about entrapment cases, as contrasted with what he wishes to say about, for example, infantile cases, by reference to ‘the value of personhood’;Footnote 29 it is not altogether clear to me how that reference is meant to work.
One point which Griffin perhaps thinks relevant here is touched upon when he says that at times
the only moral life open to us involves respecting values, not promoting them. By ‘respecting’ the value of human life, for example, I mean primarily, but not solely, not oneself taking innocent life; by ‘promoting’ life, I mean bringing about its preservation as much as possible by any means open to one.Footnote 30
Now, perhaps Griffin thinks that ‘the value of personhood’, of ‘normative agency’, is so great that it obliges promotion and not just respect; but it is not clear why he thinks that if he does, nor what the consequences would be of so thinking for the specific matter of others' rights.
More illuminating are Griffin's remarks in the context of his cautious scepticism about the idea of there being a ‘sharp divide’Footnote 31 between positive and negative elements in most human rights. Of the conflict of such rights involved in cases of detention without trial in the context of terrorist threats, in which the liberty of in fact innocent detainees is in conflict with the rights to life and to personal security of the civilian population in general,Footnote 32 Griffin says the following:
There would be no conflict if the right to life were entirely negative: a right not to have one's life taken without due process, with the only correlative duty one of constraint. But the right to life is, I should say, not so restricted; it includes rights to rescue and to protection, in certain circumstances. I think that rescue and protection should be seen as parts of the original right to life, not as additional rights. The same is true of the right to security of person: a government that stood aside and witnessed constant violent assaults on its citizens would fail in its duty, a duty correlative to the right to security.Footnote 33
And later, when considering the ‘subject of hot dispute’Footnote 34 of a right to death to be accounted for as ‘an instance of the general anti-paternalist rights to autonomy and liberty’,Footnote 35 Griffin says this:
Is what we value in liberty merely non-denial of the pursuit or, somewhat more fully, ability to pursue? […] I think the more plausible account of what we value in liberty is the more generous one. We value not merely the capacities of agency, but their exercise… [T]he right to liberty requires supplying prosthetic aids to the crippled and guide dogs to the blind… [The right] requires some sort of restoration, if they are lost, of the capacities necessary for agency. Entrapped cases present special problems here, but still come under all the same principles. Prosthetic aids are of no help to them. At present, the only equivalent help is for someone else to act as the patient's arms and legs, even if the patient's intention in moving the limbs would be to commit suicide.Footnote 36
But, suggestive as all of that is, it seems to me curiously beside the point at issue here.
The last passage quoted is explicitly located within consideration of the question ‘What is a right to death a right to?’,Footnote 37 and in both the last passages just quoted the existence of the pertinent right – to life and to death, respectively – is presumed to have been established; in each case Griffin's concern here is with the content of the right in question, especially in terms of quite which correlative duties it imposes on others, even more especially in terms of quite which correlative duties to assist bearers of rights to exercise their rights are thereby imposed, and finally in terms of quite which correlative duties to help patients in entrapment cases to exercise their rights are imposed. But this misconstrues the challenge raised for Griffin's account by entrapment cases, a challenge which precisely calls into question that account's ability to explain how patients in entrapment cases can have human rights. Griffin himself earlier says this:
There are two sorts of agency that chiefly concern us. There is the sort of agency that makes us bearers of human rights – namely, our capacities for autonomy and liberty – and there is the sort of agency that human rights are meant to protect – that is, not only the possession of these capacities but also their exercise.Footnote 38
The problem posed by entrapment cases, however, is not, or is not primarily, about the matter of quite what counts as the requisite ‘protection’ of the second sort of agency in such cases; it is rather the fact that patients in such cases do not seem to exemplify the first sort of agency and so, on Griffin's account of the notion, do not seem to be bearers of human rights. He himself says that ‘what matters to the possession of human rights is that one has the present capacity for normative agency’;Footnote 39 the entrapped seem far from satisfying the full conditions for having that present capacity, even if their degree of approximation to it can perhaps now be seen, in the light of these formulations of Griffin's, as 50%.
VII
Early on Griffin says that ‘by the word “human” in the phrase “human rights” we should mean, roughly, a functioning human agent’;Footnote 40 it is unsurprising, then, that less ‘functioning’ humans can come to constitute difficulties for his theory. Indeed, it even seems that such humans need be nothing out of the ordinary:
Children become agents only with time, and one requires a good run of adult years to form mature aims and to have time to realize some of the most major ones. And many people in old age naturally lose some of the powers of agency, and often the major achievements in their lives are already behind them. This hardly means that there is no longer a moral case for caring for the elderly, but agency may play a smaller part in it.Footnote 41
Opinions might well differ as to which of the consequences of Griffin's account of these matters is least palatable; less controversial, perhaps, might be the suggestion that the best way to avoid the unpalatable is through supplementation of what Griffin calls his ‘trinist’ account cast in terms exclusively of the (supposedly three) components of functioning normative agency by other kinds of considerations so as to achieve a (yet) ‘more pluralist account’.Footnote 42 Candidates for such supplementary considerations, as mentioned earlier, include at least those referring to certain (other) basic human needs, to certain human interests, or even perhaps to certain human vulnerabilities or dependencies.
The interest of such a ‘more pluralist account’ – of some more disjunctive account, so to say – is especially clear in the light of entrapment cases. Being entrapped by no means entails, for example, the absence of needs or interests or vulnerabilities. Quite the reverse can be the case: entrapment can generate a quite overwhelming interest, for instance, in dying – perhaps in part because of the overwhelming vulnerability of the one entrapped – along with a desperate need for assistance in bringing it about. Talk of corresponding human rights in cases of this kind, Griffin seems to agree, represents no threat of unacceptable ballooning of the discourse, no presumption of unduly weak, supposedly sufficient, conditions for having those rights; but the restrictions on the talk allowed in such cases by his ‘trinist’ theory seem to go against that agreement, thereby representing unacceptable ‘deflation’ of the discourse upon human rights through exaggerated strengthening of the conditions supposedly necessary for their possession.
If, moreover, we turn our attention, in the context of the proposal put forward here, to the matter of the circumstances in which the case against legal intrusion into the personal and the private ceases to be overwhelming, the importance of counting with a more pluralistic account than Griffin's reemerges – and does so in a way quite compatible with our East's concerns. Consider, for example, when human nastiness takes a form in which we may be uncertain as to whether any degree of the metaphorical is involved in describing it in terms of ‘torture’.Footnote 43 Griffin thinks his theory particularly apt for explanation as to why that matters for the issue of human rights, in much the same way as he thinks it apt for specification of the point on the spectrum of marital cruelty at which that issue arises: ‘when the cruelty starts to undermine the other's ability to function as an agent, which at some point it certainly will’.Footnote 44 But while any possible destruction of another's capabilities for agency would be one critical consideration here, it is not the only possible one: things done in disregard of the basic, vital needs of one who anyway lacks such agency, or by wilfully taking advantage of that person's special vulnerabilities, can surely violate his human rights, and would do so even when there is no question of ‘restoring’ or ‘rescuing’ the person's capacity for agency given that he has never had any such thing, has been entrapped since birth.Footnote 45
Pure fiction may illustrate the point here more comfortably. I think I remember a short story by Roald Dahl in which, after what one imagines might well have been an almost lifelong Carlyle marriage, the husband now remains only in the form of his brain preserved in some liquid which keeps it working, its only external attachment being to the husband's one remaining, still functioning eye, floating on the surface of the liquid; the near widow enjoys herself by passing the time puffing cigarette smoke into the floating eye. I hope the analogy with unspeakable cruelties to those entrapped in real life cases is not obscured by Dahl's humour: the analogy which remains even when – as was Diane Pretty's case – those cruelties are dished out by members of the British judiciary. I hope too that this example of the kind of way in which special vulnerabilities and dependencies arising precisely from the absence of agency can nonetheless determine certain human rights is also clear enough: the kind of way, that is, marked out by a decisive moral case establishing that certain cruelties to human beings are deserving of special legal penalization, notwithstanding the fact that those cruelties can do nothing to undermine their victims' active powers since those powers are anyway lacking (and might anyway never even have come close to any plausible threshold for use of the notion of normative agency). Human beings can be more, or less, than agents; their bodies more, or less, than instruments of agency; their minds more, or less, than harbours for their practical deliberations. Human beings, the bearers of human rights, that is: not mere ‘human animals’.
VIII
The different ways compared here of trying to at least control southern ballooning have different characters, Griffin's being through a substantial constraint upon the ‘content’ admitted within his grounding theory, mine through a more ‘formal’ constraint upon ascriptions of such rights. Griffin's constraint upon admitted content amounts to a limitation upon the features of human beings allowed to play a grounding rôle within his theory: the very limitation which carries with it, apparently to a degree in excess of Griffin's own wishes, a reduction of those admitted by his theory into the class of bearers of human rights. I have tried to suggest here that Griffin's attempts to avoid that mismatch through adoption of a ‘generous’ stance as regards the contents of the human rights recognized by his theory fails.
Perhaps Griffin wants to reduce independently, so to say, both the quantity of human rights recognized and the number of the bearers of such rights admitted to be in existence, thinking both to be prone to southern ballooning, even though at times the impression arises that he is concerned with the latter issue only because of his concern with the former. But be that as it may, the form assumed by his concern for the number of bearers of human rights admitted to be in existence reflects a theory of those rights shaped to fit paradigmatically the fittest of human beings, the most capable, the fully functional. Threats can of course arise within the lives of even such beings – even they can find themselves in specific situations of vulnerability – and it might be that discourse about human rights first became common currency within the context of threats of intrusion of the more powerful into the lives of such beings; it is anyway of course essential to distinguish human threats to human liberty, autonomy and other valued things from other, more ‘natural’ threats, dangers, risks or obstacles to ‘normal’ human functioning. But still, the focus of the kind of theory of human rights exemplified in Griffin's work leaves out, or assigns at best secondary consideration to, the matter of the clearly less fit, the notably less capable, the far from fully functional: the neediest,Footnote 46 the most dependent, those most in need of protection, those least capable of looking after their own interests. Diane Pretty was here taken as representative of these human beings; but the desperate, and desperately important, differences existing between them mean that even if Griffin's struggles with her kind of case had proven successful by the light of his own wishes – even if he had managed to avoid the mismatch that kind of case apparently represented for him – that would still not show how his theory could possibly accept as bearers of human rights very many of the other human beings concerned.
Suppose that we see reasonable discourse about human rights and their bearers as grounded, at least in part, in moral argumentation; but suppose also, however, that we manage to see how what was perhaps the original historical focus of that discourse – the intrusion of the more powerful into the lives of the ‘normal’ – might reasonably come to have been broadened, as the social moralities themselves evolved, so as to cover as well new conceptions of social and governmental (or state) responsibilities and corresponding potential failures and neglects. Then, surely, we can also come to see how some sufficiently strong moral case in favour of legal recognition and enforcement of at least some human rights of at least some of the less fit might come to be appreciated. In this way, as but one example, there need be nothing mysterious about how due weight can come to be given to the, in part characteristically different, needs of someone in Diane Pretty's circumstances and so to the importance of her receiving the requisite assistance in satisfying them.
IX
Rightly or wrongly, I am relatively unmoved by the lack in what has been said here of anything which might in any interesting sense count as a ‘theoretical’ underpinning of use of the expression ‘human right’ understood as a ‘theoretical term’; the label ‘term of art’ would at least presume, and promise, much less. But such equanimity can hardly be in place if consideration now turns to the silence thus far concerning how the untheoretical approach here adopted is to be deployed in more practical contexts. An account of human rights need not take the form of a theory yielding a relatively straightforward way of telling which those rights are; still, since nothing has been said here as to when there is ‘a sufficiently strong moral case’ for special legal protection of some given human interest, little or nothing has been said as to how to resolve any potential conflict between southern ballooning and eastern deflation over and above the argument of section 4 concerning the limitations of ‘legalization’. Or again, the silence here as to just which features of human beings other than any capacity for normative agency they might have are relevant to the issue of whether they are bearers of human rights threatens to leave this last notion ‘nearly criterionless’. Has the untheoretical approach sketched here nothing to say as to whether – and if so, why – infants, patients in irreversible comas, patients with advanced dementia, the severely mentally defective and the unborn have human rights?
It can be tempting to try to counter this last complaint by drawing upon further presumed truths about rights in general so as to obtain further constraints to be satisfied by bearers of human rights in particular. Appeal might be made, for example, to David Wiggins' thesis that
there is an abstract claim-right or entitlement to x under conditions C just where x is something the denial or removal of which under conditions C gives (and can be seen as giving) the person denied or deprived part or all of a reason, and a reason that is avowable and publicly sustainable within [his society's social morality] S, to reconsider his adherence to the norms of reciprocity and cooperation sustained by S. Footnote 47
Or, perhaps more accessibly, appeal might be made to Bernard Williams' apparently related view that rights as ‘a distinctive kind of ethical reason’ are best to be ‘explained in terms of assuring expectations’.Footnote 48 For, without presuming the approval of either of the philosophers whose views are appealed to, the hope might be that invocation of those views lends itself to the formulation of a plausible case against including at least some of the cases mentioned amongst the bearers of human rights (and without thereby ruling out as such the kind of entrapment case exemplified by Diane Pretty): for surely the notions of an expectation and of a socially reasoned response to failure to assure or respect it can have no use as regards infants, the lifelong severely mentally defective or the unborn?
One pursuing that strategic line of thought might be well-advised to follow Griffin and to emphasize that, even though those mentioned are deemed not to be bearers of rights and so not to be bearers of human rights, this does not mean that they fall outside the scope of all moral consideration; indeed, even the possibility of our having ‘the weightiest obligations’ to at least some of them might be embraced. But even so, the strategy of denying all rights so as to deny any human rights seems to me to border on overkill – that is at least meant metaphorically – and anyway to achieve such plausibility as it has by the simple expedient of ignoring the possibility of the kind of evolution of social morality mentioned at the end of the last section. Even if it is illuminating to understand discourse and other cooperative social practices relating to rights – as contrasted with goods or desirabilities – as if those practices arose from some contractual negotiation and agreement as regards the requisite forms of cooperation, it does not follow that the class of bearers of rights is restricted to those able to participate in such contractual negotiation and agreement or able to participate in the requisite forms of cooperation. Those able to participate and cooperate might surely come to recognize the perhaps characteristic interests, needs and vulnerabilities of those unable to do so (where the characteristic and the inability will usually have a common explanation). Those able to participate and cooperate might surely thereby come also to recognize the strength of some moral case for legal recognition and enforcement of certain corresponding rights of at least some of those unable to do so. Perhaps those able to participate and cooperate might even come to recognize a certain priority for the moral case regarding at least some of those who can neither participate nor cooperate, who can neither claim nor assert nor expect nor threaten nor withdraw: exactly those whose interests, needs and vulnerabilities stand most in need of the special kind of attention provided by a functioning system of rights. That such recognition might prove inaccessible, at least through merely his rational nature, to one completely without moral thought is as irrelevant in this case of morally-grounded rights as it is for the rest of the components of our moral thought and practice. A moral case for legal recognition of some right can be appreciated only within a community already in possession of at least rudimentary forms of social morality and legal procedure: a community of human beings, the bearers of human rights, who can be more, or less, than possible participants in some hypothetical contractual negotiation and agreement within the first state of nature, and more, or less, than able co-operators with the resulting practices.
A refusal to reduce, for the sake of some favoured theory, of some ‘philosophical darling’, the number of bearers of human rights admitted to be in existence need not represent a threat of southern ballooning of the quantity of those rights themselves. Any reasonably detailed account of how to manage any such threat must wait upon another occasion, but I should like to close with some very brief remarks on the matter. Acceptance of the claim that some particular right exists always incurs a potential cost, be this a literal, economic one or be it one to be understood in terms of a reduction of liberty, autonomy or some other valued thing; so it is that, once faced with a claim as to rights, some counter-claim as to supposed rights relating, directly or indirectly, to non-incurrence of that potential cost can itself often reasonably be made. But acceptance of this counter-claim would itself incur a potential cost too, possibly over and above that involved in any denial of the original claim as to the existence of some particular right (assuming, that is, the original claim to have had some at least minimally reasonable grounding); so the interchange thus initiated need not stop here.Footnote 49 In cases, however, in which both claimant and counter-claimant ground their pretensions in moral considerations, the possibility can arise that at some point they come to some reasonable agreement as to the comparative moral weighting of their respective moral grounds (a possibility perhaps illustrated in the matter of the limits of ‘legalization’ mentioned earlier). Of course not only the moral is in play here; still, once ‘practicalities’ and other contingent circumstances have been taken into account, then, roughly speaking, ‘a sufficiently strong moral case’ for special legal recognition and protection of some human interest can be shown to exist by its capability of resisting counter-claims within this kind of morally-grounded dialogue: a dialogue, it is always useful to remember, in which all participants may be one and the same person.Footnote 50
