It is probably safe to say that in one way or another; most of us agree that each of us is entitled to some basic rights. Even worst of enemies acknowledge each other’s right to disagree! This awareness however begs the questions “why do we believe we possess rights” or better, “how do we know we possess rights?” The epistemology of human rights deals with the latter question and perhaps one of the best efforts to answer it can be attributed to American scholar Alan Gewirth (1912-2004). Gewirth claims that we can derive a conclusive defense of rights through logical deductions based on the nature of action. Action in this case refers quite simply to any purposeful human action: walking, speaking, dating, voting. He maintains that “implicit in action…are certain evaluative and deontic judgements…about goods and rights made by agents” (Gewirth, 12). In his paper “The Epistemology of Human Rights”, Gewirth skillfully outlines the logic behind what he coined the “Principle of Generic Consistency”, a principle not dissimilar to Kant’s Categorical Imperative, and which asserts that each of us should “[a]ct in accord with the generic rights of your recipients as well as yourself” (Gewirth, 17). Ultimately, Gewirth’s logic requires not just a proof by contradiction – which in itself may be troubling – but also the use of polysemous terminology. I humbly submit that Gewirth’s logic is incomplete if not flawed.
Let us examine Gewirth’s logic as he presents it. Gewirth numbers his postulates for convenience and begins with (1) “I do X for end or purpose E” (Gewirth, 14) and follows with (2) “E is good” (Gewirth, 15). These two statements simply assert that actions that are purposeful are intended to achieve a good. Good in this context refers to a restricted understanding of good in that it speaks only of the agent’s desired outcome. It follows that (3) “My freedom and well-being are a necessary good” (Gewirth, 15) if I am to achieve my purpose E. These deductions are valid and require little explanation. If I am to execute any action, I need to have the freedom to do it, otherwise I can’t do it! Therefore, (4) “I must have freedom and well-being” (Gewirth, 15). So far the logic makes sense: I cannot act if I do not have the freedom and well-being to do so. I must have it. The big jump that Gewirth takes is from postulate four to five, “I have rights to freedom and well-being” (Gewirth, 15). The first thought that may come to anyone’s mind is that of an adolescent demanding his right to go out on Saturday night simply because he must go out. Gewirth addresses the potential mistrust of his statement by analyzing the result of its denial. He claims that if you reject postulate four you should observe the following path (6) “[a]ll other persons ought at least to refrain from removing or interfering with my freedom and well-being” (Gewirth, 15). Gewirth anticipates the denial of postulate six and follows with requisite (7) “[i]t is not the case that all other persons ought to at least refrain from removing or interfering with my freedom and well-being” (Gewirth, 15). This statement will confuse a reader who is not in a philosophical mindset. The word to observe is “ought”, a uniquely English word that qualifies an agent’s moral action. Postulate seven may be reworded as “not everyone needs to refrain from…” or “there are situations when others might have the right to interfere with…”. The next postulate is a subtle step from the previous one, “[o]ther persons may…remove or interfere with my freedom and well-being” (Gewirth, 16). Next, Gewirth proposes a contradictory postulate (9) “I may not…have freedom and well-being” (Gewirth, 16). Because nine contradicts four, we must reject nine and it follows that (10) “I have rights to freedom and well-being because I am a prospective purposive agent” (Gewirth, 16).
A way of reading Gewirth’s claims is that we have rights to freedom and well-being because we need them in order to act and denying that we have these rights is contradictory. To clarify the reasoning, let us examine an imaginary dialogue between two fictitious characters. For fun, let us call one of them Gewirth and the other Glaucon.
GEWIRTH. We act in order to achieve an objective. Do you agree?
GLAUCON. Sure, that makes sense.
GEWIRTH. We can deem these objectives to be “good”.
GLAUCON. Well, that may be a stretch. What do you mean by “good”?
GEWIRTH. I don’t mean a “moral good” and I don’t mean that it is good for everyone. What I mean is that assuming the action was not accidental we can presume that some value judgment was made before committing that action and it is what he or she “wanted” and it is good in that sense.
GEWIRTH. Good. Now, in order for anyone to achieve that good, or at the very least, to attempt to execute any action, that person must have the freedom and well-being to do so.
GLAUCON. Yes. In order to achieve the objective, they must have freedom and well being. Sounds pretty straightforward but can you give me an example?
GEWIRTH. Sure. Think of an African man living in early nineteenth century Brazil. If one fine day he decides pack up his things and move to Canada, he will need more than a ticket. He will need the freedom and the well being to leave and board the next boat out of Brazil. He has that right.
GLAUCON. Not so fast. Chances are he is a slave and someone paid good money for him. I think his master would not like that very much.
GEWIRTH. Well, his master may not like it at all but he should at the very least not interfere with the man’s freedom and well-being.
GLAUCON. There’s no chance of that. He belongs to his master.
GEWIRTH. So you are saying that his master may interfere with his right to leave?
GLAUCON. Yes. The slave is his property and therefore the slave may not leave.
GEWRITH. But you said earlier, and I quote, “Yes. In order to achieve the objective they must have the freedom and well being.” You have contradicted yourself.
The dialogue may seem silly to the modern reader but it is an attempt to place Gewirth’s logical deductions in an understandable context. Gewirth continues his logic to demonstrate five more steps before reaching his “Principle of Generic Consistency” but let us cut to the chase and explore the problems of proof by contradiction and polysemous terminology.
Gewirth is careful to employ contradictory opposition rather than contrary opposition in his argument but it may be the case that unknown scenarios render his argument incorrect. Contradictory opposition is an “absolute opposition between an affirmation and a negation, an opposition which has no intermediate or middle” (Spangler, 40). An example of a contradictory opposition is the relationship between the statements “my rights are limitless” and “my rights are not limitless”. A contrary opposition is one between two extremes. An example of a contrary opposition is the relation between the statements “my rights are limitless” and “my rights are limited”. Through contradictory opposition, Gewirth constructs a logically valid defense but by pursuing his proof via negativa it is not fully convincing. In the case of the statement “my rights are not limitless”, there is room for scenarios such as “my rights are limited” or even “my rights do not exist”. Take the example of slavery in the imaginary dialog. Might there be situations where slavery is admissible? It may be a travesty to suggest that in today’s day and age but consider the controversy surrounding the question of torture. What if the entire future of mankind depended on defusing a time bomb whose location one stubborn terrorist refuses to reveal? By transferring the onus to a negation, we are left wondering whether there may be exemptions or alternative scenarios.
Another objection to Gewirth’s argument is one that centers on the meaning of the word “must”. Gewirth states that he “must have freedom” (Gewirth, 15) because freedoms are “necessary goods” (Gewirth, 15). Harvard Professor Mathias Risse observes that there is an ambiguity in the use of the word “must” which disqualifies the argument. According to Risse, the word “must” may convey one of two meanings: “I cannot help but value” (Risse) or “I can make demands” (Risse). Gewirth may have used the double meaning of the term to forward his case. To see how the use of this term creates a semantic difficulty, let us examine translations of Gewirth into other languages. A paraphrase of Gewirth’s fourth postulate was translated into French as “l’agent doit envisager ses conditions génériques comme des biens necessaries” (Beyleveld). “Must” was translated as doit – the third person present tense of the verb devoir. Interestingly, the English word “duty” is derived from French and possesses the same etymological roots as devoir. Gewirth clearly takes advantage of the relation between “duty” and “right” to suggest the moral requirement of freedom and well-being. The word “must”, however is a convenient segue between “ought to” or “should” and the more necessitative “are required to”.
As a defense of human rights, Gewirth’s “Principle of Generic Consistency” is a strong moral device and valid for anyone willing to make a small leap of faith. As a definitive proof of the existence of human rights however, the argument contains two hairline cracks that render it unusable. Anyone following Gewirth and the Kantian spirit might pursue adding a few steps between postulates four and five and introducing more precise language. The proof by contradiction however, is the cornerstone of this approach and – in my opinion – not as compelling as direct proofs.
Gewirth, Alan. “The Epistemology of Human Rights.” 1985. Human Rights. Ed. Ellen Frankel. Paul, Jeffrey Pall, and Fred D. Miller Jr. Oxford Engl: Basil Blackwell for the Social Philosophy and Policy Center Bowling Green State University, 1984. 1-24. Pdf.
Spangler, Mary Michael., and Pierre Conway. Logic: An Aristotelian Approach. Lanham, MD: University of America, 1986. Print.
Risse, Mathias. “Objecting Kant & Gewirth’s Atttempted Derivation of Rights.” Human Rights: A Philosophical Introduction, Lecture 12. Massachusetts, Cambridge. 5 Mar. 2012. Lecture.
Beyleveld, Deryck, and Roger Bronsword. “Les Implications De La Théorie Du Droit Naturel En Sociologie Du Droit.” Les Implications De La Théorie Du Droit Naturel En Sociologie Du Droit. Trans. Francois Michaut. Réseau Européen Droit & Société, 1989. Web. 25 Mar. 2012. <http://www.reds.msh-paris.fr/publications/revue/html/ds013/ds013-06.htm>.