By Angela Condello
University of Roma Tre and Käte Hamburger Centre for Advanced Study in the Humanities
Are human rights natural, or are they conventional? This preliminary and (way) too broad question leads us to reflect on the philosophical legitimation of human rights and, all the while, on the intersections and interactions between law and language.
In the Nichomachean Ethics, Aristotle claimed that: “there are two forms of justice, the natural and the conventional. It is natural when it has the same validity everywhere and is unaffected by any view we may take of the justice of it. It is conventional when there is no original reason why it should take one form rather than another and the rule it imposes is reached by agreement, after which it holds good. It is not obvious what rules of justice are natural and what are legal and conventional, in cases where variation is possible. Yet it remains true that there is such a thing as natural, as well as conventional, justice” (Book V, Chapter II).
Aristotle’s claim is still relevant. Furthermore, not only is the relationship between nature and convention complex if observed from the perspective of justice in general, but it is – a fortiori – even more so if considered from the perspective of human rights as a political and juridical discourse.
The natural origin of human rights is evident in their conventional foundation. They are logically and phenomenologically different from the right of property, for example, in that in these formulations they don’t originate in a written contract, but rather in the fact of being human. Yet, as they codify moral behaviour, with this codification being the result of a human artificium (literally, “what is made according to a technique”), human rights are also the result of political agreement and convention. Intuitively, I assume that the conditions of existence of human rights are thus influenced by both natural and conventional circumstances. But this argument needs to be explained.
First, I want to say something about the reason why I started reflecting on this, and how a concrete experience influenced me. It was indeed a concrete and real experience that led me to start thinking through the legitimation of human rights from the perspective of philosophy of language. In 2013, I worked with the President of the Human Rights Committee of the Italian Senate of the Republic, Professor Luigi Manconi. As a legal philosopher, I was used to reading and reflecting on the interaction between law, language, aesthetics, metaphors, bodies, interpretations, and – even more – on the interconnections among these and other wonderful (but almost only) conceptual issues. While working in the Committee, for the first time in my professional life my senses were directly involved in my intellectual activity. As Walter Benjamin would have said, I could see law and philosophy acting together “in the flesh”. I heard voices crying for help, voices of people in need and of human rights activists; I met and discussed with the brave mayor of Lampedusa, Giusi Nicolini. I saw victims of injustices caused by the police, I met and hugged mothers and sisters and lovers of men who died in jail because they were beaten by the guards. Before, I was already aware of the existence of injustices and of the permanent violations of human rights in Italy. Theoretically. But in these moments I literally sensed (THAT was aesthetic!) the precise point where pain meets justice and law – and vice versa. As a consequence, I can no longer understand the connection between nature and convention as static. Rather, it is dynamic and it adapts to the historical and social processes of which human rights are also part.
I started wondering why, in a particular period of time and in a determined social and historical context, precise needs of protection emerge. In some ways, human rights standards and conceptual contents “evolve” with the evolution of their economic, social and political frame of reference. For instance, a critical reading of the “phenomenology” of human rights discourses and policies in the last two years in Italy reveals that the debate (and the work of the Committee as well) has focused on current emergencies, each of which is the product of an “acceleration” caused by peculiar social, geopolitical and economic conditions. The main issues raised last year concerned immigration law and the conditions of refugees. With their emergence, new needs for the protection and promotion of human rights standards often arise: the International Conventions are indeed general and abstract, but they cannot anticipate every single risk or contingent situation. For example, the inhuman conditions in migrant and refugee detention centers in Italy (C.I.E. and C.A.R.A.) are a comparatively recent issue, a consequence of the migration fluxes that started in 2011 after the so-called “Arab Spring”. In the words of a New York Times article, “these centers should not be prisons, and they are not prisons, but the difference seems only a matter of semantics” (June 2013). The comparison of the centers with prisons (i.e. with a known model) proves that the political discourse is not ready to describe them properly. At the juridical level, moreover, the discipline regulating these centers is still dishomogeneous and rather obscure, an example of a contingent situation not anticipated by the Italian Government nor by the European Union. Will the protection of human rights of the inmates of these centers, when properly provided, have a natural or a conditional foundation? The answer is both one and the other; it will be the product of the social structure, from which the phenomenon and the emergency emerged, and it will be realized conventionally, but reinforced and sustained by naturalistic arguments.
How does language and law adapt to historical and semantic changes and to these shifts of paradigm? Going backwards in Italian republican history, the same question might be applied to women’s political and social rights or to workers’ rights. Moreover, nobody was discussing the right of homosexual couples to get married or to adopt children thirty years ago – now it seems to be (rightly so) a focal issue. The problem concerns more broadly the mechanisms of adaptation of legal semantics to mutations in social reality: an impossible, paradoxical and necessary process of redefinition of legal concepts and a complex process of adaptation involving various mechanisms and dynamics. It is a process that relates both to nature and convention; for human rights the case is particularly intricate, since they are rights we are entitled of just by virtue of being human.
As mentioned before, the question of whether human rights are the product of nature or of convention dates back to political, legal, and philosophical theories rooted in classical thought. According to one of these theories, human rights are the product of natural law stemming from religion (Grotius, Locke, naturalism). Other theories hold that they are the result of political agreement and convention, even if this agreement is on the fact that they are based on natural properties (conventionalism, like, for instance, Searle’s account of status functions).
This distinction hints at a parallel between law and language, since the nature/convention dichotomy has also been a core issue in philosophy of language. In the Platonic Cratylus, the extreme linguistic conventionalist, Hermogenes, holds that nothing but local or national convention determines which words are used to designate which objects: the same names could have been attached to quite different objects, and the same objects given quite different names, so long as the users of the language were party to the convention. Cratylus, the naturalist, holds instead that names cannot be arbitrarily chosen in the way that conventionalism advocates, since names belong naturally to their specific objects. For Plato, both positions are too extreme: instead, he argues that knowledge and language are interconnected and their relationship is dynamic and not just natural, nor merely conventional. Language is instead conceived as functional, oriented towards the outcome.
In a very similar way, the peculiarity of human rights is that they do have a clear conventional foundation; nevertheless, the convention is the consequence of a status (being human) that is more “originary” and natural than others. Thus, human rights also have a natural foundation. Nature and convention move dynamically in the semantic frame of human rights: this theory has been argued recently by the American philosopher John Searle who, in Making the Social World, applied his intentionalistic theory to human rights. In his account, rights are generally defined as “status functions,” deontic powers deriving from collectively recognized statuses (being a citizen, a husband or a wife, or a post-doc fellow). Rights are produced by collective intentionality, they are not discovered in nature. But if rights are “status functions,” and status functions derive from institutional facts (which derive from linguistic conventions), then it should be a logical anomaly to pretend that rights and obligations can also derive from natural grounds (i.e. the characteristic of being human). Searle’s explanation is that functions are performatively imposed upon the objects of reality: we make something the case by explicitly saying that it is the case (e.g. when we make a promise). Law is intrinsically performative: it makes it the case (it creates a new dimension in reality) just by saying that it is the case (through a declaration, a sentence in a normative text).
From the perspective of philosophy of language, human rights are therefore mostly conventional, but nature can be used as an argument on which to base that convention: nature can “reinforce” convention. For instance, the universal right to free speech might have existed before the European Enlightenment, or it might not have – in both cases it comes into existence in that particular context and is recognized at the time of Enlightenment. Once we get clear about their ontological status, the existence of rights becomes no more mysterious than the existence of money, property, and so on.
I hope these remarks offer a clarification of what I am terming the processes of coming into being (“emergence”) and evolution of human rights, processes that helped me understand what I observed during my experience at the Human Rights Committee in Italy. By observing human rights and their evolution, I reflected on the thread linking language, politics, law, and power: that human rights are defined, created, and changed by human language and inside different discourses. Whether rights are the consequence of conventional or naturalistic instances can’t be stated with certainty; where juridical instances meet political discourse, nature and convention interact very dynamically and extremely quickly because they have to respond to the need for definite standards (static) that originate in society (dynamic).
To conclude, human rights are created by human beings, and they can only be violated by human beings: they show all the complexity and reflexivity of both law and language. Human rights are the consequence (and not the product) of both nature and convention(s): they are, just like all legal concepts, purposeful, related to intentionality and adapted to the dynamic processes of communication in which law, politics, and language intersect.
 John R Searle, Making the Social World: The Structure of Human Civilization (Oxford: Oxford University Press, 2010).