A Critique of the Status Function Account of Human Rights

Abstract

This contradiction ”1. The universal right to free speech did not exist before the European Enlightenment, at which time it came into existence. 2. The universal right to free speech has always existed, but this right was recognized only at the time of the European Enlightenment.” (Searle) draws on two common and conflicting intuitions: The human right to free speech exists because institutions, or the law, says so. In contrast, the human right to free speech can exist independently of institutions—these institutions simply recognize a right we already have. John Searle argues that his status function account of human rights can preserve both intuitions by showing that the inconsistency between (1) and (2) is merely apparent. I argue that this solution works for tokens of human rights but not for types, while the contradiction concerns types. Hence, the status function account of human rights fails to preserve both intuitions.

Human Rights and Status Functions, before and after the Enlightenment

“…A recent article by Åsa Burman (2018) gives us another chance to reflect on the uses and value of John Searle’s status function account of social reality in relation to human rights. In his book, Making the Social World , Searle (2010) includes a whole chapter exploring the usefulness of his status function account for understanding the ontology of human rights.…”

“…His saying that “human rights continue to exist even when they are not recognized” in the same way that citizenship rights continue to exist even if not recognized, is not at all the same as saying “human rights have always existed even before they were recognized,” which is what (2) claims. Burman (2018, 469) agrees that citizenship rights can continue to exist even if not recognized, but only “ given that there is a constitutive rule of citizenship in place ” (emphasis added). But, she continues, “citizenship as such .…”

“…. cannot exist without our collective belief in its existence” (Burman 2018, 469), without an already constitutive rule in place, and thus, because there is no analogy, (2) continues to be incomprehensible within the status function account, despite Searle’s claim to the contrary. As Burman points out, Searle is attempting to use a token case (a person or persons being denied their rights within an already existing rights regime) to make sense of a type case (the existence of a rights regime in the absence of recognition of said regime).…”

“…The consequences of Burman’s critique are two. One is that “the status function account of human rights fails to make sense of our conflicting intuitions about human rights” (Burman 2018, 472). Specifically, it fails to make sense of the intuition that “human rights as a type can exist without collective recognition since types of status functions cannot [exist without such recognition]” (Burman 2018, 472).…”

“…One is that “the status function account of human rights fails to make sense of our conflicting intuitions about human rights” (Burman 2018, 472). Specifically, it fails to make sense of the intuition that “human rights as a type can exist without collective recognition since types of status functions cannot [exist without such recognition]” (Burman 2018, 472). A more important consequence is that “one must give up the status function account of human rights to explain how a human right (as a kind) can exist without collective recognition” (Burman 2018, 472).…”