we show there are universal duties not to deny others free speech, this would justify a universal right to speak freely, because that right could be claimed—one would know where to claim it.
The duties that correspond to supposed goods and services, often slightly inaccurately called welfare rights, are more difficult. Such duties, even if universal, cannot be owed by each to all. If you think about a right to food, for example, it cannot mean that each of us has an obligation to feed all others, but rather at most by each to some or some to some. These are duties that cannot be owed to all others and cannot be discharged to all others. Such duties have to be allocated to specified agents, who carry the duties. In this case, any counterpart rights that we’re hoping for are going to be undefined pending an allocation of duties until duties therewith some rights are institutionalized.
Historically the arguments about establishing duties have been of many sorts, and many within religious traditions. Some have been based on theories of the good for man. Some of those theories have been objective, Aristotle for example, some subjective, utilitarianism for example, and some pure theories of duties, Kant for example. But until the late 18th century, nobody argued that rights were the fundamental, normative issue. Actually, I’m not sure they argued the case—they proclaimed it.
There is much to be said for giving up on justification and going for proclamation. Bertrand Russell put it rather nicely, “The advantages,” he said “of the method of postulation are great—they are the same as the advantages of theft over an honest dollar.” That is to say, you get your conclusions without working for them.
Now, twice in human history, we have seen this shift to making rights discourse the prominent or a prominent public discourse, not by justification, but by proclamation. The first time was in the 18th century, in 1789, in the Declaration of the Rights of Man and of the Citizen, and it was criticized from very early on. Burke campaigned against it. Bentham famously wrote, “Right is a child of law,” (only positive rights). “From real laws come real rights, but from imaginary laws, from the ‘law of nature,’ come imaginary rights. Natural rights is simple nonsense; natural and imprescriptible rights, rhetorical nonsense - nonsense upon stilts.” John Stewart Mill argued that rights were a derivative notion. Positive rights were important precisely because they contributed to utility and human happiness.
Finally, 19th century historicists and legal positivists put the notion of human rights in such bad odor that it sank from human history. Proclamation, when you think about it, is a use of the argument from authority, and none of us as scientists and scholars would wish to take an unalloyed view of the argument from authority. Of course, it has a somewhat different status in limited context and in legal argument, which often explains quite a lot.
In the 20th century, there is a second attempt, with the 1948 Universal Declaration of Human Rights. This was devised in an utterly different historical context—a need to find universal standards. There was great difficulty in agreeing on serious arguments for those standards and, therefore, certain rather general phrases were agreed to, the so-called “human rights,” to which some universal obligations were then alleged to correspond. Essentially it was a second version of proclamation. That declaration was codified in 1966. We have the