‘A substantive account is a theistic account’: Why we need the resources of theism for grounding human rights A.S. (Stef) Groenewoud, 9940332 Worldwide, human rights are seen as an important source for the protection and promotion of the interests of members of the human race. Human rights – though not always conceived of as we do nowadays – have a long historic tradition. According to some scholars, it was already in the Classic Antiquity that the concept of ‘rights’ was used (Brouwer 2011), b
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  ‘A substantive account   is a theistic account’:  Why we need the resources of theism for grounding human rights A.S. (Stef) Groenewoud, 9940332 Worldwide, human rights are seen as an important source for the protection and promotion of the interests of members of the human race. Human rights  –   though not always conceived of as we do nowadays  –   have a long historic tradition. According to some scholars, it was already in the Classic Antiquity that the concept of ‘rights’ was used (Brouwer 2011), be it in a more objective way; to describe a good or just situation. However, the probably most accepted historic reconstruction of the srcin of human rights as we see them today; namely as subjective entitlements that a person possesses to control or claim something, is that they first appeared in the late twelfth or the early thirteenth century (Griffin 2008). It was after the death of Franciscus of Assisi (1182-1226) that the Franciscans  began disputing what exactly their vow of poverty implied. “Franciscans have not renounced their  property”, they claimed. “Each of us has an inalienable natural right to goods when in extreme nee ds”  (ibid, 2008, p 31). After that, William of Ockham (1285-1349) saw reason as giving us freedom, and freedom as giving us dignity, which became later (at least according to several treaties and declarations) the ground for human rights. Later, Pico della Mirandola (1463-1494), an early Renaissance philosopher, gave an influential account of the link between our freedom and the dignity of our status. Centuries later, both the American (1776) and the French (1789) declarations of independence, form the next ‘milestones’ in the history of human rights. The U.S. Declaration of Independence ringingly declared: “We hold these truths to be self  -evident, that all men are (...) endowed by their Creator with certain inalienable rights, that among these are life, liberty, and the  pursuit of happiness”. And the French declared “(...) to set forth in a solemn declaration the natural, unalienable, and sacred rights of ma n (...)”.  Since the United Nations adopted the Universal Declaration of Human Rights (UDHR) in 1948, the concept of human rights has been playing a  prominent role within the moral and political thought of human beings around the globe. What grounds human rights morally? An important question regarding human rights is; “what justifies, or grounds them   morally 1 ?”  Or stated differently: “what gives me a morally justified   claim to being treated according to a certain human right? ” If we look at preambles of many international treaties and declarations, we see that ‘dignity’ forms the basis for human rights . The preamble of the 1948 UDHR for instance, says: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world  ”   (United Nations. 1  I explicitly discern here the moral justificatory grounds from other grounds, for example, legal justifications.  General 1948). The problem is however, that in these treaties and declarations, the concept of dignity is deliberately kept vague (Sensen 2011), giving us no direct moral justificatory ground for human rights. The quest for a moral grounding for human rights becomes even more pressing when the question rises whether many purported human rights claims are genuine human rights and who can claim them . For example, the UDHR lists such rights as the right to employment and periodic holidays with pay (ibid, article 24). But what about someone who has no paid work? Can he claim this right as well? And if he cannot; can we still claim this to be a human right? After all, according to many, human rights are expected to be applicable to all human beings equally (Gewirth 1981).   Aim of the paper What is needed to answer these questions, is a  substantive account   of human rights, that is, an account that tells us what   human rights we have, who  have them, and why  we have these rights (Liao 2014). In this paper, I will not elaborate on the first part: what human rights we have. I will also not go into much detail about the moral subjects of human rights 2 . My focus will be on the third part of such an account: the moral grounds for having certain rights. In order to arrive at that point, I will first look at a category of accounts for the justification of human rights that is dominant in the field: the Naturalistic Conception of human rights. In contrast with this, I will shortly mention other accounts, and I will come to the conclusion that human rights are grounded in the worth of the rights-bearer. This faces us in the second paragraph with the challenge to identify that (combination of) feature(s) of human beings on which that worth supervenes. Though I will not identify that feature(s) immediately, I will mention five criteria or conditions for such (a combination of) feature(s). Third, I will look at three existing Naturalistic accounts: Griffin’s Agency Approach,  Nussbaum’s Central Capabilities Approach, and a recent one: Liao’s Fundamental Conditions Approach. I will argue that none of the existing accounts meet the criteria set in the second paragraph so that these accounts will not provide us with features in human beings that might ground human rights. Then, in the fourth paragraph, I will look at Nicholas Wolterstorff  ’s approach  (Wolterstorff 2010), in which he claims that we need resources of certain versions of theism for the grounding of human rights. I will conclude that a (slightly amended) version of his account does fit the criteria from  paragraph two, thus showing us the core feature(s) that all human beings inherently possess. Finally, I will discuss whether or not such an account could not only be of value for Christian philosophers but might also hold for secular thinkers. 2  In the second part of this paper I will state that human rights are universal and equal and thus can be claimed by all members of the human family.  1.   Naturalistic and other Conceptions of Human Rights In the discussion about the moral justification of human rights, Naturalistic Conceptions are dominant. In summary, naturalistic views are characterized by the fact that they conceive of human rights as rights that can be possessed by persons in a “state of nature” (i.e. independent of any legal or political institution, recognition, or enforcement). Human rights are those natural rights that are innate  and that cannot be lost (given or taken away), and they have the properties of universality , independence (from social or legal recognition), naturalness , inalienability , non forfeitability  and imprescriptability . Or, to say it shortly: human rights are rights possessed by all human beings (at all times and places), simply in virtue of their humanity  (Beitz 2009). Naturalistic approaches (there are quite a few, as we will see in the third paragraph) agree that there must be a justificatory ground within  the human being (or being human), that functions as a moral justificatory ground for human rights. They differ however in their views of what forms this specific (set of) feature(s).  Not everybody in the modern world accepts and employs the concept of natural human rights. Classical utilitarians do not; one’s choice of what to do is to be guided solely by comparative estimates of life-goods to be brought about. Some Christians do not; they believe they are always and only to act out of gratuitous benevolence, not out of respect for rights. A good many Muslims dismiss the idea of natural human rights as an invention of the West (Wolterstorff 2014). But there is another, important school that conceives differently of human rights and their (moral) justification, and this is the Political Conception of human rights. This account, that is represented by renowned philosophers as Rawls, Raz and Beitz, understands human rights in their role of function in modern international  political practice (Liao, 2014, p.28-40). Owing the lack of space, I shall only shortly mention Beitz’s  political conception of human rights here. What Beitz discusses, is that the border between human rights and political ideals has disappeared. Many rights that are claimed to be human rights, clearly do not meet the criteria of what human rights should be; namely, being not dependent on positive law and moral conventions, pre-institutional, universal (possessed by persons in all times and all places and  belonging to ‘persons as such’, simply in the virtue of their humanity (Beitz, 2009, p. 52,53). This  brings him to the conclusion that it is “not clear that there is any nontrivial sense in which human rights must somehow be grounded in features that all persons necessarily share ” (ibid., p. 59). What Beitz proposes instead is that “we do better to approach human rights practically, not as the application of an independent philosophical idea to the international realm, but as a political doctrine constructed to play a certain role in globa l political life”  (ibid., p. 48-49). The problem I have with Beitz’s analysis, is that it heavily leans on (an inventory of) the (too?) broad spectrum of current ‘human rights’ of which some can be disputed to be ‘genuine human rights’, as we saw before. T o say it differently; why should the fact that there are nowadays ‘human rights’ that do not meet the criteria of ‘genuine human rights’ inevitably lead to the conclusion that human rights cannot be grounded in a (set of) shared feature(s) all human beings possess? Beitz’s critique on this point is also dealt with by Griffin as he discerns between basic and applied human rights, of which only the first category are  grounded by features that are inherent in all human beings: “But we must keep in mind the dis tinction between basic rights and applied or derived rights. Rights may be expressed at different levels of abstraction. The highest level would emerge when we articulate the values that we attach to agency (...)” (Griffin, 2008, p. 50) .   2.   What feature(s) of human beings ground(s)their worth and thus their rights? Having said all of the above, we can (together with all UN declarations) assume that human rights accrue to human beings on account of the dignity, the worth, the excellence or the estimability that human beings possess. The big challenge however, is to identify a (set of) feature(s) of human beings on which that worth supervenes. To successfully find that feature would be to offer a dignity-based grounding of human rights. What kind of feature(s) are we looking for? We have already seen some criteria for them in the previous paragraph (inalienable, universal, etc.), but I will frame them here a little bit differently, based on Wolterstorff (2014, p.11,12). First, it has to be a feature that is ineradicable  from human beings; a feature that no human being can lack so long as he or she exists. The reason for this goes as follows. Human rights are such that the status sufficient for having them is that of being human. So if human rights are grounded in dignity, then the dignity that grounds those rights must be ineradicable from the status of bgeing human; otherwise the status sufficient for having those rights would not be that of being human. And if that dignity is ineradicable from the status of being human, then the feature(s) on which that dignity supervenes must likewise be ineradicable from the status of being human; otherwise one could have the status without having that feature (those features) and hence without having that dignity. But the status of being human is ineradicable from human beings. So the feature we are looking for, must be ineradicable. Infants, Alzheimer’s patients, those in a permanent coma, anyone who is a human being must possess the feature we are looking for. Second, given that the entire package of human rights is not shared with any of the non-human animals, the (set of) feature(s) on which the dignity that grounds human rights supervenes has to be one that no non-human animals possess. It must be a uniquely  human feature. Third, in the literature on dignity-based attempts to ground human rights, one finds it commonly assumed that the feature we are looking for gives to each human being a worth greater than that  possessed by any non-human animal; an animal-transcending worth . Fourth, though human beings vary greatly in the worth they have on account of native endowments, achievements, and so forth, it is assumed that there is something about our being human that gives us equal dignity . So the feature we are looking for must be equally available in all human  beings. Finally, there is another condition for success in developing a dignity-based grounding of human rights that is of a sort quite different from the ones I have mentioned thus far. To make this one clear, Wolterstorff (2014, p.13) gives the example of mutilating a human being for the pleasure it gives the
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