Rights and Conventions
Something Norm said today that I’ve been wondering about. I can’t quite figure out how it works…
There’s a sense in which all concepts are social constructs, but that doesn’t necessarily mean – though it sometimes does mean – that what the concepts refer to are merely a matter of convention, of moral and cultural context, or what have you. It is true that some of the rights a person enjoys are a consequence of belonging to a particular community (your right to a British passport), or are relative to a given status she enjoys (as an old age pensioner), or the result of his past actions (as the party to a contract of sale). But there are other rights which a person possesses simply in virtue of being a human being. This is why we call them basic human rights. The right against being tortured is one of them. Even the most repugnant of individuals and those guilty of grave crimes, equally those merely suspected of some crime, share with everyone else the right not to be tortured. So the policy of not returning people to countries in which they face the danger of being subjected to torture ought to be upheld and defended.
There’s a whole large literature about this, of which I have read perhaps a page or two, so I’m stumbling around in the dark here, but – I don’t see how human rights can be anything other than a matter of convention. I don’t see how they can be anything other than social. Suppose you’re in a canoe paddling up a river (I read an account of just such a situation by an Australian philosopher once) and you’re attacked by a crocodile. You have a human right not to be tortured, which the crocodile is flagrantly disregarding. And – what? Nothing. What do human rights mean in such a situation? Nothing, that I can see. Surely human rights depend – quite heavily – on enforcement, laws, protection, recognition. So surely as a matter of brute fact, it is the case that all the rights a person enjoys are a consequence of belonging to a particular community – if they are real rights that she really does enjoy, at least, as opposed to being rights that no one in her world pays the smallest attention to. Some societies – a lot of them, actually, unfortunately – don’t respect human rights, or respect some but not others. Some human rights appear to be doomed for the foreseeable future in Iraq, thanks to the role of Islam in the constitution. So in what sense are rights not conventional? What does it mean to possess rights that are not enforced? Is it just a way of referring to rights we think people ought to have? I certainly have no problem with that; I’ve been talking about violations of [what ought to be] women’s rights in Niger, Pakistan, Guatemala, China, all over the place lately. But even then I don’t see how that makes such rights not a convention. We think women ought to have them, other people don’t; we can’t hold up anything labeled ‘human rights’ to show the other people and silence them once and for all. I wish we could, but we can’t.
Update: Norm points out that I don’t actually disagree with him after all. Since I said in an email message, “But I don’t mean that I think rights are a ‘mere’ convention – I’m happy to say they’re more than a convention – but I don’t see how they can escape being a convention too” – when he had said in the post I was wondering about, “There’s a sense in which all concepts are social constructs, but that doesn’t necessarily mean – though it sometimes does mean – that what the concepts refer to are merely a matter of convention, of moral and cultural context, or what have you.” (emphasis added) Well don’t I feel silly. I’m not quite sure whether I talked myself into something, or simply ignored the word ‘merely’ the first time and thus misread him* – but either way I’m a simp. Oh well. I quite enjoy talking about what kind of thing rights are, so it doesn’t matter – apart from disagreeing with Norm when I didn’t of course. But I have a right to be forgiven, so I’m sure I will be.
*Close reading! How many times do I have to tell you!