In an NYRB interview with Tim Crane, John Searle makes some intriguing comments on human rights within the context of his theory of social ontology.
Are you skeptical of the idea of universal human rights?
No, I’m not skeptical about the idea of universal human rights. I’m skeptical about what I call positive rights. You see, if you look at the logical structure of rights, every right implies an obligation on someone else’s part. A right is always a right against somebody. If I have a right to park my car in your driveway, then you have an obligation not to interfere with my parking my car in your driveway. Now the idea of universal human rights is a remarkable idea because if there are such things, then all human beings are under an obligation to do—what? Well, I want to say that with things like the right to free speech it just means not to interfere. It’s a negative right. My right to free speech means I have a right to exercise my free speech without being interfered with. And that means that other people are under an obligation not to interfere with me.
Now, when I look at the literature, I discover that there is a tradition going back to the UN Universal Declaration of Human Rights, where not all of the rights listed are negative rights like the right to free speech, or the right to freedom of religion, or the right to freedom of association, I think all those negative rights are perfectly legitimate. But there are supposed to be such rights as “every human being has a right to adequate housing.” Now I don’t think that can be made into a meaningful claim.
The claim that “every human being has a right to seek adequate housing,” or that there are particular jurisdictions where the British government, or the government of the State of California, can decide “we’re going to guarantee or give that right to all of our citizens”—that iseems to me OK. But the idea that every human being, just in virtue of being a human being, has a right to adequate housing in a way that would impose an obligation on every other human being to provide that housing, that seems to me nonsense. So I say that you can make a good case for universal human rights of a negative kind, but that you cannot make the comparable case for universal human rights of a positive kind.
Now I come up with one counter-example. One exception to that is that it does seem to me where life and safety themselves are concerned, we’re all under an obligation, where we can, to help people whose life is threatened. If someone has been hit by a car, he has a right to expect that he will receive assistance from us, and we have an obligation to afford him assistance. And the reason that’s an exception is that a condition of anything else in life is that you have rights of survival. But in general, I think it’s a big mistake in contemporary political thinking to suppose that there is a list, an inventory, of universal human rights of a positive kind. I don’t think I can make sense of this.
I think that Searle, given his ontology of institutions–which has had a huge influence on me–ought to be more skeptical of universal negative rights as well. Positive and negative rights aren’t that different. In the case of positive rights, such the right to adequate housing, it’s impossible to fulfill the correlative obligation without the right sorts of institutions in place. As Searle notes, it’s hard to understand what it might mean to say that everybody everywhere–Ghanians and Vietnamese and Dutch–is somehow party to the violation of my rights if my housing should turn out not to be “adequate.” It’s rather easier to grasp how everyone everywhere might meet their obligation not interfere with me in various ways. Still. The noninterference I am owed is by no means obvious. We may have compelling “natural,” pre-institutional reasons to refrain from various form interference. If a negative right is simply a sort of structure of natural reasons with strong normative authority, then I can see universal negative rights. Yet it seems to me that the decisive step is the move from reasons to the general recognition of reasons. Rights, including negative rights, have an essentially social ontology.
Having rights of non-interference in the absence of a social fact that says so–in the absence of general convention to the effect that non-intereference is due–seems to me the same thing as saying that there is, as a matter of actual social fact, no effective rights. It seems better to say that, on the basis of certain natural reasons, everyone ought to adopt certain norms or conventions of non-interference–which is a way of saying that people would have rights if people acknowledged the force of these reasons. Just as it is conceivable that there could be global institutions that could make good on universal positive rights, it is conceivable that everyone everywhere could adopt certain norms of noninterference that would make good on universal negative rights. But in both cases, reality falls short of conceivability.
A further complicating factor is that there may be no natural reason to, say, acknowledge negative rights to property in the absence of the systems of social and institutional facts that make property claims clear, enforceable, and advantageous to more or less everyone. Our reasons to adopt certain norms or conventions of noninterference may depend on a substructure or scaffolding of prior social and institutional facts. In that case, it would seem odd to say these sorts of negative rights exist independently of the institutions that bring into being the reasons that supply those rights with their normative force. If universal positive rights are problematic because the reasons and institutions that can make good on the entitlements implicit in those rights are not universal, then universal negative rights are similarly problematic.
I think it’s easy to confuse the constitution of rights with the recognition of rights precisely because the constitution–the construction of the social fact of rights–has depended historically on a rhetoric of recognition. The first step toward rights with a real social and institutional existence has often been the propagation of the belief that the aspirational right has a freestanding, natural, preinstitutional existence we are obliged to recognize and honor. The defense of universal human rights is a good strategy making rights more universal. Fake it ‘til you make it.
My sense is that as a piece of political rhetoric, the UN Declaration’s notion of universal positive rights has done a lot of good, so I see no particular reason to abandon the strategy of trying to bring rights into existence by pretending they already exist.
I have a conference paper somewhere that I presented in front of Searle in I think 2004, which combined his theory of social ontology with Doug North and John Rawls to interesting effect. Searle said, approvingly, that he’d never thought of applying his theory to political philosophy in that way. Really wish I could find where I put that thing.