Contentious practices in philosophy of rights – DRAFT Jeffrey Spring, St. Francis Xavier University (Paper should not be cited until a final version is uploaded) Introduction In our effort to contribute to the solution of urgent practical problems it helps to critically evaluate and compare rights-based theories of global justice and cultivate a solid understanding of rights theory. Much of what is so appealing about human rights is their revolutionary potential and emancipatory logic against various forms of oppression and domination. Human rights are inherently political. When they are invoked some form of power is being challenged, some form of oppression or domination is being contested, and some form of authority is being questioned. Much agreement exists on the general meaning, universal application, and standard distinctions human rights conceptualizations typically entail. However, much remains contested in the philosophical ‘doing’ of rights that is highly relevant to the nexus or divide between theory and practice. In my view doing philosophy of rights is part of the social practice of rights, replete with significant implications on the frontiers of justice. My aim is to explore and critically challenge some common but contentious practices in philosophy of rights, given the implications such practices can have on research and advocacy. I focus on four such practices, some more common than others, which tend to arise in the literature. Specifically, I look at rights skepticism, ideological uses of the negative versus positive rights distinction, human rights conceptualizations employed to defend contingent political authorities (primarily states), and human rights conceptualizations separating rights from human rights. I argue that each of these contentious practices risks conforming with or downplaying, as opposed to directly exposing and challenging, the injustices of the status quo. My larger goal is to develop a useful primer on rights and global justice that explores how common practices in philosophy of rights either limit or empower the way we address systemic injustice. Philosophy of rights skepticism Rights skepticism is a peculiar stance philosophers often initially take on the topic of rights. It is practiced as a seemingly mandatory disciplinary reflex, common to philosophers while uncommon amongst scientists and lawyers. This stance is peculiar because it functions as a kind of credibility statement. I am referring to the tendency of philosophers to start any inquiry into rights, or respond to any undertaking of rights theory, with dismissal and skepticism as if the topic and its supporters squarely fit among the paranormal. Upon hearing one is doing philosophy of rights a familiar response is “what is a right?” as if the topic involves demonstrating the existence of the mythical unicorn or Bigfoot. Even those preoccupied with detailed concept formation aimed at providing comprehensive responses to such questions initially share in the expression of serious doubt toward such undertakings. While acknowledging this common practice I think we should question and criticize it rather than wholly embrace or celebrate it. A charitable account will characterize this practice as important and appropriate. It is always good form to demand a clear explanation and reasonable justification for important concepts, ideas, and claims. We should always expect a decent response to the what is it?, what is its basis?, and why bother with it? type questions. Conceptual doubts and concerns should be addressed, to be sure, so I want to make it clear that my intention is to advance a nuanced critical analysis of rights skepticism. My concern is with the nature of this practice, especially certain versions of it, not with its existence per se. Part of what makes philosophy of rights skepticism so 1 often uncharitable is that it is frequently practiced as a kind of dismissive disciplinary requirement, assumed to be something one is supposed to do in response to rights theory, without being constructive. Here the commitment is not to well-reasoned argument and philosophical rigour. Instead, lip service to such standards of rigour too often mask a personal disdain for or ignorance of value theory, which is regarded as comparatively less secure and empirically demonstrable than more strictly logical philosophical endeavours. The practice may reflect a kind of antisocial elitism that regards the rights-seeking or rights-defending masses as intellectually misguided. While philosophy can broaden our horizons and facilitate critical thinking, promote thoughtful and well-rounded lives, and inspire us in the honest and unwavering pursuit of truth, professional philosophers remain all too human. Instead of earnestly expecting philosophical rigour, the practice of responding skeptically and dismissively to philosophy of rights can reflect the unexamined assumption that the doing of rights necessarily lacks philosophical rigour. This practice can equivocate between the wealth of rights theory which suffers from an embarrassment of riches when it comes to philosophical rigour and an individual instance of rights theorizing. Similarly, this practice can unfairly impose an impossibly high standard of justification for a right based either on the reasoning skills of a particular rights-claimant or a rather dubious metaphysical assumption about what makes rights compelling or real. Sometimes this practice reflects a disturbingly robotic ignorance about or indifference toward the plight of others, problematically erasing context by isolating the idea or concept of a right from the significant role, development, and moral importance of rights. This practice can also express a kind of performative contradiction, discounting as fictional the very real right existing to empower individuals with the opportunity to deny their existence, akin to strenuously arguing that reason is of no value, ostensibly cutting off the branch upon which one sits. Often, rights skepticism is careless and political, a result of privilege and a protection of power. By rights skepticism I mean here not the broader doubt expressed about some aspect of rights or the narrower doubt expressed by some philosophers of rights, but the dismissive doubt expressed towards the ‘doing’ of rights, including the social practice of rights theory. Call this ‘philosophy of rights skepticism’ characterized by the attitude that rights lack philosophical rigour and are probably not a topic worthy of more theoretical inquiry. When it comes to philosophy of rights skepticism two points of distinction are in order. The first is that such skepticism can be internal or external, coming from within philosophy or political theory (those that otherwise do pursue rigorous theoretical inquiry) or from outside such as other disciplines, non-academics, and/or rights advocates who primarily or exclusively deal with immediately practical concerns. The second point of distinction is that philosophy of rights skepticism can come from pro or con-rights camps. Indeed, it is a special kind of skepticism that emanates from otherwise pro-rights individuals and groups since it is typically not directed towards the existence, importance, universality, or general meaning of rights. Rather, given the urgent practical importance of rights there is skepticism about ‘doing’ rights in a philosophical manner when there is so much to be done globally and at the grassroots. I sympathize with this kind of skepticism. No one pursuing philosophy of rights who is committed to the human rights project (rights-based social and global movements) is immune from the worry that her or his time and energy might be better spent doing something more grounded and responsive. I think such doubts are common and largely healthy. When experienced or expressed this practical versus philosophical distinction concerns a continuum of practices ranging from concept formation to frontline rights activism. As a definitive break between one manner of pursuing rights and another, however, the distinction between theory and practice is a deeply misleading false dilemma. Doing philosophy of rights is very much part of the social practice of rights. 2 Here my understanding of rights as social practice, including efforts to connect the force and appeal of rights with their reasoned justification and scrutinized use, is in agreement with Duncan Ivison: In what follows, I shall assume that rights are best understood as a social practice. What does this mean? First of all, rights are the kinds of things that are dependent on a social language of some kind, as opposed to standing independent of it, like atoms or molecules. At a minimum, a practice is any coherent (and complex) form of socially established cooperative human activity … So a practice-dependent approach to rights makes practices relevant not only to the application of a theory of rights, but also to its justification. The content of that justification will depend, in part, on the content and scope of the practices out of which it emerges and to which it is meant to apply.1 Irony and trust are examples of something we usually know are real yet can struggle to easily define or explain. Irony and trust are things we do. So are rights. It is part of our practice as social beings. Just as with eating or sleeping, we may not always do much of it or we may not do it well, but it is a real part of the social context as something we are inclined to pursue (socially established cooperative human