The Philosophical Foundations of Human Rights Author(s): Michael Freeman Source: Human Rights Quarterly, Vol. 16, No. 3 (Aug., 1994), pp. 491-514 Published by: The Johns Hopkins University Press Stable URL: http://www.jstor.org/stable/76243

If you've ever argued about rights without knowing what a right actually is, this is your map. Freeman, a political theorist, surveys the philosophical battlefield with unusual fairness — he gives Bentham, Marx, and Foucault their best shots before defending rights pragmatically. Read it if you study politics, law, or philosophy, or if you want to know why the human rights regime survives despite having no agreed foundation.

1. 1Opening

   A concept everyone uses, nobody examines

   Freeman starts with an uncomfortable observation. Politicians, lawyers, and activists invoke 'human rights' constantly — in declarations, campaigns, courtrooms. Yet the concept is, in his words, much invoked and little analyzed. When you press on what rights are and where they come from, the ground shifts. His blunt conclusion: the philosophical foundations of human rights are problematic — they are controversial. The essay exists to find out how bad the problem is.

   The idea

   The gap between how confidently we use a word and how little we understand it is Freeman's starting point. Human rights carry enormous moral and legal authority, yet their philosophical basis is disputed at every level — whether they exist, what grounds them, and whose rights count. That controversy isn't a footnote; it shapes how the whole regime can be defended.

   Try this: Next time you hear 'human rights violation' in the news, pause and ask: what makes that a right, and who says so?

2. 2Section I (p. 495)

   Gewirth: rights from the logic of action itself

   Freeman turns to Alan Gewirth's 'Reason and Morality' (1978), one of the most ambitious modern attempts to rebuild rights from scratch. Gewirth argued that every agent, simply by acting, must claim freedom and well-being — the 'generic features of action.' From that starting point he derived the 'Principle of Generic Consistency,' which grounds human rights in the very conditions of being an agent. Freeman presents this as a rationalist foundation: no divine law, no intuition, just the logic of doing anything at all.

   The idea

   Gewirth's move is elegant: you cannot act without valuing freedom and well-being for yourself, so consistency demands you grant them to others. It tries to make rights inescapable for any rational agent. Whether the derivation actually works is contested — but it shows how far philosophers will go to find a foundation that doesn't depend on God, tradition, or law.

   Try this: Ask yourself: does claiming anything for yourself — even crossing a street — commit you to granting others the freedom to do the same?

3. 3Section III (p. 503)

   Locke: rights written into nature itself

   Freeman reaches back to John Locke's 'Two Treatises of Government' (1689), the classic natural-rights answer. In Locke's state of nature, people hold rights to life, liberty, and property — not granted by any king. Governments exist for one purpose: to protect those rights. When a government fails at that job, the people retain a right of revolution. Freeman presents this as the tradition that made rights prior to the state, and made rebellion legitimate when the state betrays them.

   The idea

   Locke's framework still structures how we talk about rights: they come before government, government is their servant, and overthrow is justified when it becomes their enemy. The weakness is the one Bentham spotted — what exactly is a 'natural' right, and how do we know it exists? The tradition's power and its vulnerability come from the same source.

   Try this: Trace one right you care about back: did a law create it, or did the law merely recognize something already there?

4. 4Section III (p. 504)

   Bentham: rights are children of law

   Freeman stages the great counterattack. Jeremy Bentham, in 'Anarchical Fallacies' (written 1791-92), tore into natural rights with the most famous insult in the literature: talk of natural rights is 'nonsense upon stilts.' His alternative was stark — rights are the children of law. 'Real laws' give rise to 'real rights.' Nothing exists outside legal systems that deserves the name. Freeman shows how this positivist view makes rights secure where they're enacted and invisible where they're not.

   The idea

   Bentham's critique still bites: if rights exist before laws, who exactly declared them, and how do we verify that? His answer — law creates rights — gives rights precision but at a cost. It means people in tyrannies have no rights at all, which is exactly the conclusion human rights language was invented to reject. The debate between these two pictures has never been settled.

   Try this: Pick a right not yet written into your country's law and ask a Benthamite: does it exist?

5. 5Section III (pp. 504-505)

   Marx: rights of egoistic man

   Freeman brings in a third demolition, from the left. In 'On the Jewish Question' (1843), Karl Marx attacked the rights of man as the rights of 'egoistic man, man separated from other men and from the community.' Marx distinguished the 'rights of man' from the 'rights of the citizen' — the former belonging to isolated individuals of civil society, each guarding his own property and security against everyone else. Freeman presents this as the critique that rights ideology sanctifies the bourgeois self, not human community.

   The idea

   Marx's point wasn't that rights are fake but that they're partial: they protect individuals conceived as self-interested atoms, not people in their social relations. That critique still echoes whenever someone asks whether rights language serves the powerful by framing every problem as an individual claim. It's a challenge to what rights are *for*, not just where they come from.

   Try this: Notice when a 'rights' framing turns a shared problem — housing, health — into millions of separate individual claims.

6. 6Section III (p. 507)

   Mill: liberty because it works

   Freeman lays out the utilitarian alternative. John Stuart Mill, in 'On Liberty' (1859), defended liberty not as a natural right but by its consequences: freedom lets individuality and social progress flourish. His line — the only freedom deserving the name is pursuing our own good in our own way — came with the 'harm principle': power over anyone against their will is justified only to prevent harm to others. Later interpreters built a 'rule-utilitarian' defense: rules protecting liberty maximize utility in the long run, so rights earn their keep by their results.

   The idea

   Utilitarianism sidesteps the metaphysics — no natural law needed — by asking what freedom produces. The surprise is how much protection this can yield: if rules securing liberty reliably outperform their absence, rights get a pragmatic foundation. The classic worry is the flip side: if violating one person's rights ever maximized utility, the theory seems to permit it. Rule-utilitarianism is the attempt to close that gap.

   Try this: Test the harm principle on a live dispute: is the proposed restriction actually preventing harm to others?

7. 7Section III (p. 512)

   Kant: never merely a means

   Freeman turns to the autonomy tradition. From Kant's 'Groundwork of the Metaphysics of Morals' (1785), he cites the formula of humanity: 'Act in such a way that you always treat humanity... never simply as a means, but always at the same time as an end.' Persons, on this view, have a dignity that price-talk cannot touch — they must never be used merely as instruments for others' purposes. Freeman presents this as the deepest philosophical root of the idea that every human being matters in themselves.

   The idea

   Kant's formula explains something rights language gestures at: the difference between things that have prices and persons who have dignity. It grounds rights in autonomy — the capacity to set your own ends — rather than in law, utility, or nature. The hard question Freeman leaves open is whether this rationalist dignity-talk convinces anyone who doesn't already accept Kant's moral framework.

   Try this: In one interaction today, check: are you treating anyone purely as a tool for your goal?

8. 8Section I / Chapter 7

   MacIntyre: rights are unicorns

   Freeman quotes the sharpest dismissal in the debate. Alasdair MacIntyre declared: 'there are no such rights, and belief in them is one with belief in witches and in unicorns.' On this view the entire apparatus of human rights is a fiction — a modern superstition dressed in the language of morality. Freeman lets the attack land at full force before weighing what survives it.

   The idea

   MacIntyre's comparison is designed to sting: rights, like witches, are entities whose existence we've been trained to affirm but which lack any anchor in reality. The challenge forces a choice — either produce a foundation that shows rights are more than shared belief, or admit the regime rests on commitment rather than truth. Freeman's later conclusion about plural foundations is partly an answer to exactly this pressure.

   Try this: Ask a skeptic what would count as evidence that rights exist — and whether any answer would satisfy them.

9. 9Section II / Chapter 9

   Asian values: whose rights are these anyway?

   Freeman turns to the cultural relativist challenge. At the 1993 World Conference on Human Rights, the Bangkok Declaration saw Asian governments stress sovereignty and non-interference, and the importance of 'particularities of various historical, cultural and religious backgrounds.' The argument: human rights are a Western construct imposed on other cultures. The communitarian point — the autonomous individual isn't valued in some Asian and African cultures — found its political voice in Singapore's Lee Kuan Yew, who argued Western-style human rights don't fit Asian societies.

   The idea

   This is the geopolitical version of the foundation problem: if rights are universal, why do powerful governments reject them as foreign? The relativist challenge exposes how often universality travels under a Western flag. Freeman's treatment shows the debate isn't just philosophical — it's about who gets to define the terms, and whether 'universal' can survive contact with genuinely different traditions.

   Try this: When you hear 'universal values,' ask which culture's history produced the specific list being defended.

10. 10Section II / Chapter 10

    Feminism: the rights of (half of) man

    Freeman presents the feminist critique: traditional human rights theory is gendered. It centers the public sphere — torture, imprisonment, politics — and neglects private-sphere violations like domestic violence, which historically wasn't treated as a human rights violation at all because it happened at home. The human rights subject has been modeled on male experience. Freeman cites Carol Pateman's argument that the social contract is really a 'sexual contract' that subordinates women.

    The idea

    The critique isn't that rights are useless to women but that the theory's blind spots were built in: what counts as a 'violation' was defined by what happens to men in public. Once domestic violence enters the frame, the whole architecture — public divide, the abstract rights-holder — needs revision. It's one of the most practically consequential challenges Freeman surveys.

    Try this: Check any rights agenda you encounter: does it count what happens in kitchens and bedrooms, or only in prisons and parliaments?

11. 11Section II / Chapter 7

    Foucault and Rorty: drop the foundations

    Freeman closes the critique section with the postmodern attack. Michel Foucault's analysis of how power produces knowledge and shapes subjectivity suggests human rights discourses are exercises of power that create the very subjects they claim to liberate. Against all foundation-building, Freeman sets Richard Rorty's pragmatic alternative: forget philosophical grounding, promote human rights through sentimental education — expanding sympathy and solidarity rather than proving rights exist.

    The idea

    These two positions converge on a radical thought: maybe rights don't need foundations at all. Foucault warns that foundational talk can itself be a technique of power; Rorty says the moral progress we want comes from stories that expand who counts as 'one of us,' not from arguments. Both shift the question from 'what justifies rights?' to 'what sustains them?'

    Try this: Notice which moved you more toward a cause: a philosophical argument or a story about a person.

12. 12Conclusion (p. 514)

    The verdict: a plurality of foundations

    Freeman delivers his conclusion. No single philosophical foundation for human rights commands assent. 'The search for a single, philosophical foundation for human rights may be misguided. Human rights may be better served by a plurality of foundations.' The international regime doesn't need philosophical agreement: it can be justified by overlapping arguments, in the manner of Rawlsian 'overlapping consensus' from Rawls's 'Political Liberalism' (1993). The debate will continue, because human rights are used in diverse and contested political projects.

    The idea

    This is the essay's real payoff: the demand for one foundation may itself be the mistake. Different people can support the same rights for different reasons — Kantian dignity, utilitarian outcomes, legal enactment — and the coalition of reasons is stronger than any single argument. Rights practice has never waited for philosophy to settle; the theory should catch up to that fact.

    Try this: In your next rights debate, look for the different reasons allies support the same position — and build on all of them.

Students and scholars of political theory, law, and philosophy who need a fair-minded map of the human rights foundations debate. Also ideal for activists who want to understand — and survive — the strongest philosophical attacks on the language they use daily.

FAQ