Human Agency as the Basis of Human Rights

A justification for human rights—whether teleological, consequentialist, deontological, or something else—should justify the main features of human rights including their mandatory character, their universality, and their high priority. This makes the construction of a good justification a daunting task.

Grounding human rights in human agency and autonomy has had strong advocates in recent decades. In Human Rights: Essays on Justification and Application (1982) Alan Gewirth offered an agency-based justification for human rights. He argued that denying the value of successful agency and action is not an option for a human being; having a life requires regarding the indispensable conditions of agency and action as necessary goods. Abstractly described, these conditions of successful agency are freedom and well-being. A prudent rational agent who must have freedom and well-being will assert a “prudential right claim” to them. Having demanded that others must respect her freedom and well-being, consistency requires her to recognize and respect the freedom and well-being of other persons. Since all other agents are in exactly the same position as she is of desperately needing freedom and well-being, consistency requires her to recognize and respect their freedom and well-being. She “logically must accept” that other people as agents have equal rights to freedom and well-being. These two abstract rights work alone and together to generate equal specific human rights of familiar sorts (Gewirth 1978, 1982, 1996). Gewirth's aspiration was to provide an argument for human rights that applies to all human agents and that is inescapable. From a few hard-to-dispute facts and a principle of consistency he thinks we can derive two generic human rights—and from them, a list of more determinate rights. Gewirth's views have generated a large critical literature (see Beyleveld 1991 and Boylan 1999).

A more recent attempt to base human rights on agency and autonomy is found in James Griffin's book, On Human Rights 2008. Griffin does not share Gewirth's goal of providing a logically inescapable argument for human rights, but his overall view shares key structural features with Gewirth's. These include starting the justification with the unique value of agency and autonomy, postulating some abstract rights, and making a place for a right to well-being within an agency-based approach.

In the current dispute between “moral” (or “orthodox”) and “political” conceptions of human rights, Griffin strongly sides with those who see human rights as fundamentally moral rights (on this debate see Gilabert 2011 and Liao and Etinson 2012). Their defining role, in Griffin's view, is protecting people's ability to form and pursue conceptions of a worthwhile life—a capacity that Griffin variously refers to as “autonomy,” “normative agency,” and “personhood.” This ability to form, revise, and pursue conceptions of a worthwhile life is taken to be of paramount value, the exclusive source of human dignity, and thereby the basis of human rights (Griffin 2008: 27–44). Griffin holds that people value this capacity “especially highly, often more highly than even our happiness.”

“Practicalities” also shape human rights in Griffin's view. He describes practicalities as “a second ground” of human rights. They prescribe making the boundaries of rights clear by avoiding “too many complicated bends,” enlarging rights a little to give them safety margins, and consulting facts about human nature and the nature of society. Accordingly, the justifying generic function that Griffin assigns to human rights is protecting normative agency while taking account of practicalities.

Griffin claims that human rights suffer even more than other normative concepts from an “indeterminacy of sense” that makes them vulnerable to proliferation (Griffin 2008, 14–15). He thinks that tying all human rights to the single value of normative agency while taking account of practicalities is the best way to remedy this malady. He criticizes the frequent invention of new human rights and the “ballooning of the content” of established rights. Still, Griffin is friendly towards most of the rights in the Universal Declaration of Human Rights. Beyond this, Griffin takes human right to include many rights in interpersonal morality. For example, Griffin thinks that a child's human right to education applies not just against governments but also against a child's parents.

Griffin's thesis that all human rights are grounded in normative agency is put forward not so much as a description but as a proposal, as the best way of giving human rights unity, coherence, and limits. Unfortunately, accepting and following this proposal is unlikely to yield effective barriers to proliferation or a sharp line between human rights and other moral norms. The main reason is one that Griffin himself recognizes: the “generative capacities” of normative agency are “quite great.” Providing adequate protections of the three components of normative agency (autonomy, freedom, and minimal well-being) will encounter a lot of threats to these values and hence will require lots of rights. A better strategy here involves imposing demanding tests through the justificatory process—and particularly near its end when questions of burdensomeness and feasibility are being considered (Nickel 2007). Perhaps Griffin could build these tests into his notion of practicalities.

Griffin thinks that he can explain the universality of human rights by recognizing that normative agency is a threshold concept—once one is above the threshold one gets the same rights as everyone else. One's degree of normative agency does not matter. There are no “degrees of being a person” among competent adults. Treating normative agency in this way, however, is a normative policy, not just a fact about concepts. An alternative policy is possible, namely proportioning people's rights to their level of normative agency. This is what we do with children; their rights grow as they develop greater agency and responsibility. To exclude proportional rights, and to explain the egalitarian dimensions of human rights such as their universality and their character as equal rights to be enjoyed without discrimination, some additional ground pertaining to equality seems to be needed.