Archives For John Searle

Author Information: Gregory Lobo, Universidad de los Andes, Bogotá, Colombia, globo@uniandes.edu.co

Lobo, Gregory J. “Back to Basics: Straw Men, Status Functions, and Human Rights.” Social Epistemology Review and Reply Collective 6, no. 11 (2017): 6-19.

The pdf of the article gives specific page numbers. Shortlink: https://wp.me/p1Bfg0-3Qk

Please refer to:

Image by United To End Genocide, via Flickr

 

“They won’t let me be a citizen, because then they have to give me rights and they won’t call me a refugee because then they have to give me aid,” said Mr. Saifullah. “I am not a citizen or a refugee. I am an illegal alien. I am nothing.”[1]

While Mr. Saifullah, quite tragically, gets it, Professor Corlett, sadly, does not. This brief essay is an attempt to help Professor Corlett “get it,” to understand why status functions are important for understanding human rights. Along the way some basic misunderstandings regarding the substance and purpose of John Searle’s reflections on how his social ontology might shed light on discussions of human rights will be clarified. These misunderstandings are evident in Corlett (2016),[2] henceforth simply 2016, and were initially addressed in a scant seven pages by Lobo (2017),[3] henceforth Lobo.[4] In reaction to Lobo’s seven pages, Professor Corlett produced a 22 page response,[5] henceforth 2017, rejecting Lobo’s clarifications and reaffirming his original conclusions as found in 2016.

In the first part of what follows, Corlett’s principal objection to Searle’s thinking will be re-presented. As in Lobo, it will be shown once more that the objection is unfounded, by comparing relevant textual citations from 2016 and 2017 with textual citations from Searle (2010)[6] and Searle (2011).[7] In the second part, the purpose of Searle’s intervention into the field of human rights thinking will be clarified. This will reveal that Corlett’s objections — even if they were not baseless — are in any event not germane.

Finally, what is claimed in Lobo to be Searle’s major contribution to human rights thinking, based on the concept of the status function, will be discussed. In 2017 Corlett mishandled (that is, treated without due care) Lobo’s representation (paraphrase) of what he, Lobo, understands to be Searle’s major contribution to the discussion.[8] It is possible that it is this error by Corlett that led to him dismissing said contribution in 2017 as entirely unoriginal. The discussion will clarify both the substance of Searle’s actual contribution and its originality.

Errors and Corrections

Fundamentally, Corlett errs in his characterization of Searle’s thinking on human rights. Among his initial errors is this: “Searle’s conception of human rights is purely institutional, e.g. he believes that such rights are products only of social construction.”[9] Corlett’s related but more principal concern would seem to be that Searle’s thinking on human rights “is not completely justified”[10] because Searle does not address the issue of what Corlett refers to as the “essential moral properties” of such rights. The best explication to found in Corlett of what this might mean is this: a human right “finds at least part of its grounding in morality.”[11] It is appropriate to ask, what is meant by morality? “By ‘morality,’ it is meant that such rights have moral foundations in an objective sense.”[12]

If the reader is less that satisfied with this tautology, so be it: Corlett offers nothing further. Of more concern, perhaps, is that based on Corlett (2016 and 2017) everything indicates that the guarantor of objectivity, and thus morality (and of the objectivity of objectivity and the morality of morality), would seem to be none other than the “tradition” or the “leading philosophers of human rights.” This, of course, should not worry the reader in any way at all. It is important to point out that Corlett re-words this moral concern of his towards the conclusion of 2016, criticizing Searle’s thinking, both in general and on human rights specifically, for lacking what he refers to as a “morally normative” component or element,[13] for which a non-tautological explication is never offered.

Now, to support this characterization of Searle’s thinking, Corlett quotes from Searle (2011), an article in which Searle is replying to some of the critics of his 2010 work. Having characterized Searle’s conception of human rights as “purely institutional” and “social construction[ist],” and complained that Searle’s thinking “does not even address” questions of morality in relation to human rights, Corlett seeks to give credence to this characterization by quoting Searle, thusly: “‘[o]n my [Searle is using the first person] account all rights are status functions and thus human creations. We do not discover human rights in nature as we discover human chromosomes. But if human rights are created by human beings, then what rationally compelling justification can we give for the creation of universal human rights?’ (Searle 2011, pp. 139–140).”[14]

Here it is relevant to ask, if Corlett is going to quote Searle asking what rationally compelling justification can be given for the creation of universal human rights, why does Corlett not let Searle answer? For Searle does answer the question Corlett quotes. But Corlett passes over Searle’s answer, as if it does not exist.

Instead of allowing Searle his answer (quoting it), Corlett immediately interjects a non sequitur: “In Searle’s terms, then, human rights are epistemically subjective rather than objective.”[15] Now, this is a non sequitur insofar as it has nothing to do with the question Searle poses; however, it is anything but a non sequitur for Corlett’s purposes. For by interjecting so, Corlett is clearly seeking to hang Searle on what Corlett sees as the problematic inferences one can make when reading Searle’s question in the absence of an answer.

Corlett, it appears, seems to want the reader to imagine that Searle is posing a rhetorical question, out of exasperation, to which everyone already knows the answer. Through his presentation of Searle’s question, absent Searle’s answer, it looks like Corlett is suggesting that in asking the question, “what rationally compelling justification can we give for the creation of universal human rights?”, Searle is implying that we really can’t give a rationally compelling justification for them at all. This would mean that we are left only with institutions and social construction — or what Corlett sums up as the “epistemically subjective”.

But Corlett is being dishonest.[16] For Searle does answer; his question is not born of exasperation, and it is certainly not rhetorical.[17] And his answer, as much as his question — which is about universal human rights and their justification — shows that Searle seeks, in fact, to ground human rights in moral foundations, even as he continues to understand human rights, indeed all rights, as the result of human creativity.

The Meaning of the Question

Still, before turning to Searle’s answer, it is worth considering further the implications of Searle’s question, especially with respect to Corlett’s accusation that Searle’s thinking lacks considerations of the morally normative. Searle asks about legitimacy in the creation of universal human rights. But for a right to be universal it would have to be, ipso facto, normative, morally so, ethically so, and it would have to be so normative for everyone — for it is universal. In other words, a universal human right is, by definition, always already morally normative, and Corlett’s principal complaint against Searle’s thinking, that it lacks consideration of the morally normative because it is purely institutional, collapses.

That being the case, it is still worth pondering the implications of Searle’s answer to the question he poses. Recall that Searle is asking after a rationally compelling justification for the creation of universal human rights. He immediately responds: “I offer a justification, but if I am right it limits the scope of human rights.”[18] How could this be so; how could his thinking contemplate limits (which again, suggests normativity)? For on Corlett’s reading, Searle’s “purely institutional”, “social construction[ist]” understanding of human rights amounts to a “madness” which does nothing less than pave the way to outrages like white supremacy and slave ownership.[19] On Corlett’s reading, Searle’s thinking allows any old anybody to dream up any whimsy that strikes their fancy and call it a human right. In 2016 Corlett, as is being evidenced, understands Searle poorly and thus his reading is completely wrong (not only plausibly wrong but, to repeat, completely wrong); but in 2017, after Lobo, Corlett still manages to somehow remain refractory to evidence that annuls his thesis.

Here is, finally, how Searle answers the question he posed: “A right is legitimately created only if it can rationally be justified by a correct conception of human nature, a set of values about human beings, and can rationally impose an obligation on all human beings to respect it.”[20] In insisting that the rights in question have to be rationally imposable on all, Searle is insisting on something that is equivalent to an insistence on moral normativity and universality. Corlett missed these words. One could argue that he had to miss them, for they incontrovertibly refute all elements of his thesis. Or it could be allowed, charitably, that in 2016 he missed these words due to the pressures of working to deadline, and the employment of the quite fallible strategy of selective reading, which has claimed many more and much greater heads than his.

What is perhaps quite unforgivable however, is Corlett’s reaction when confronted by these words of Searle in Lobo. In 2017, having had the chance to contemplate both the existence of these words, and the damage they quite clearly do to his thesis, Corlett responds in the following manner: he concedes that this “is the closest published statement by Searle of which I [Corlett] am aware that on the surface appears to align his view of human rights with the conception of human rights as moral ones which I attribute to the contemporary human rights tradition.”[21] But his concern, the reader will recall, is that Searle is a pure institutionalist, a “mad”[22] social constructionist, whose work “lacks an essentially morally normative component.”[23] The quotation, one among many (see Lobo for more), confirms that Corlett’s concerns are groundless. So now the less charitable conclusion must be drawn: Corlett is purposefully ignoring the evidence before his eyes.

How Do You Justify?

Look at his initial response: “on the surface,” he insists, superficially, this quotation seems to successfully indicate that Corlett has misjudged Searle. But only there, on the surface. “However, the statement does not quite succeed in doing so,”[24] Corlett continues, in an attempt to regain his footing. This is to be expected, for the reader will recall, Corlett’s standard is “complete justification.”[25] According to such logic, not quite succeeding amounts to nothing less than unmitigated failure. But in what way is the statement not quite successful? How will Corlett justify his use of the mitigating locution, “on the surface”?

As follows: “according to the conception of human rights which I articulate but do not endorse in Corlett (2016) and herein, being rationally justified by a correct conception of human nature is not a jointly sufficient condition of a human right, though it might be relevant to the issue of human rights possession (i.e., of who qualifies in having a human right).”[26] This “justification” is left without further comment. Corlett seems to think it is meaningful. The reader should decide for herself, but it is here deemed — further commentary notwithstanding — twaddle.

From the ridiculous to the sublime: what Corlett does next in his attempt to annul the overwhelming evidence that he has, as they say, constructed a straw man, a straw Searle, against whom to aim his arrows, is nothing less than extraordinary. He extends his attempt to undercut the pertinence Searle’s wholly unobjectionable observation that a “right is legitimately created only if it can rationally be justified by a correct conception of human nature,” by introducing into argument the following, equally unobjectionable, truism: “That something is rationally justified can be a subjective or relative matter.”[27] This is extraordinary — in this context — because Searle is careful to make this consideration central to his thinking.

In his discussion of human rights he very clearly says:  “I can at least argue for my conception of what I think is valuable in human life.”[28] In other words, and in the same sense, he can certainly argue (as can Corlett) for what he thinks should be morally normative. But as Searle immediately observes: “such arguments, as is typical in ethics, are not demonstrative, in the sense that any rational [and, it might well be added, reasonable] person is bound to accept them on pain of irrationality [or unreasonableness].”[29] Searle concludes this thought with an idea that should interest Corlett, for it speaks directly to the latter’s concerns: “But from the fact that they [the arguments] have an element of epistemic subjectivity, it does not follow that they are arbitrary or beyond the scope of argument”.[30]

It would seem there is little more to be said on this topic, for anyone who understands, at least roughly, how language works, knows that it is possible to say equivalent things without using identical words. Thus it is no stretch whatsoever to conclude on the basis of what Searle says that he is arguing, explicitly, for moral considerations in the elaboration of human rights. He explicitly rejects the notion that they can be elaborated arbitrarily or without reference to moral foundations. This information and argument was presented in Lobo, but ignored in and by Corlett in 2017.

When Is the Universal Truly Necessary?

Sadly, however, this is not in fact the least of it. What is truly astonishing about Corlett’s pointing up that subjectivity and rationality are an important concern — as indeed they are — is that, in neither 2016 nor 2017, is there found any clear (non-tautological) explication of what counts as “morally normative” — his central peeve — anyway; the closest Corlett comes to giving the expression some substance is when he refers to “what are moral rights above and beyond what societies say they are” in 2016,[31] and in 2017, when he says that “human rights are […] are non-institutionally moral or ethical, backed by valid moral or ethical principles or rules.”[32]

To repeat: in an attempt to cut at Searle, Corlett informs his reader (as if the reader were unaware): “That something is rationally justified can be a subjective or relative matter.”[33] To be clear, Corlett is broadcasting the insight that what counts as rational and as justified (and by extension, surely, what is “true,” “valid,” “objective” and so on) is in fact subjective, relative — to one’s point of view, no doubt. It is claimed here that this intervention is astonishing. Why? Not for its content, certainly, but because the subject of its enunciation, namely Corlett himself, has in both 2016 and 2017 used the following phrases as if they were not tainted with subjectivity or relativity in the slightest: “‘true morality’,”[34] “valid moral claims,”[35] “valid moral rules,”[36] “a morally enlightened moral conscience,”[37] “objectively valid moral rules,”[38] “valid moral principles,”[39] notions like “objectively valid,”[40] “a proper interpretation,”[41] formulations like “[b]y ‘valid’ is meant objectively valid,”[42] “valid moral or ethical principles,”[43]  and this, while exhausting, is hardly an exhaustive list.

In not one single instance that can be found does Corlett allow that something like “true morality” might be a subjective or relative matter, that what counts as “a morally enlightened moral conscience” might be an unsettled question, within the scope of argument.[44] What is to be made of a statement like the following: “what makes a human right valid […] is valid [?] moral/ethical principles or rules which confer [wait for it…] validity on a human rights claim or interest and thereby confer the right in question to a particular individual or group”?[45] It is too distressingly convoluted and tautological to be considered a valid[46] English sentence; but what is more bothersome in the present context is it begs the question (begged by all the other just cited formulations too): who decides what is valid, true, objective, normative, moral, proper and so on?[47]

For Corlett there is a “true morality” that is not subjective, not relative; there are “valid moral claims” that are not subjective or relative matters; there is a “morally enlightened moral conscience” (yes, he uses the redundancy) and this is neither subjective nor relative. It is surprising that Corlett — that anyone engaged in the philosophical, and more pointedly, the social epistemological, if you will, enterprise — would so unselfconsciously, so unreflectively, so unironically, deploy such terms in an attempt to find fault with Searle’s — indeed, anyone’s — thinking. Does he not realize that such formulations are entirely of a piece with the discourses of radical religionists, Nazis, Stalinists, Maoists and so on?

They are not, however, part of Searle’s discourse. And in this regard it is to be noted, as a sort of coda to this section, that in the piece most selectively cited by Corlett[48] in 2016, and which has provided much food for thought above, Searle has the following to say about validity and the morally normative. First, validity: “a valid justification does not necessarily produce agreement.”[49] This observation does not seem to register with Corlett (his truism cited above notwithstanding). Searle goes on: “As a philosopher I would have a much easier life if people agreed with all my valid arguments. (No doubt my adversaries have the same feeling about my inability to appreciate their ‘valid’ arguments.)

The point for the present discussion is that one can legitimately argue for the validity and universality of certain human rights even though one knows that the conception of human dignity that one is arguing from is not universally shared and that one’s arguments will not convince people who wish to deny humans their rights.”[50] Who would dispute this? On the face of the evidence (2016 and 2017) Corlett would: “the moral conception of a human rights holds that such rights do not change.”[51] In other words, Corlett thinks these things can placed beyond argument. An audience of totalitarians would likely be the first to agree.

Regarding human rights more specifically, Searle says: “there ought to be a general account of them and how they relate to our humanity.”[52] This is essentially an argument in favor of something like moral normativity; he then adds, “I try to provide the beginning of such an account.”[53] Indeed. He then offers up a critique of merely “utilitarian” justifications of human rights, which again evinces his understanding of the need for some sort of normative grounding for them. It is deeply troubling that Corlett cannot intellectually grasp this. Finally, Searle reiterates his point, already present in 2010 but ignored for some reason by Corlett in 2016 and 2017, namely, that “a right can continue to exist even when it is not recognized” and that one therefore does “not lose” one’s “rights in a situation where they are generally violated.”[54] This provides a segue into the next section.

Searle’s Purpose and Contribution

In 2017, towards the end of his 22 pages responding to Lobo’s seven, Corlett admits that he doesn’t really know what Searle is up to in Searle (2010): “this discussion of Searle’s view of human rights raises the question of precisely which questions he is attempting to answer.”[55] Corlett offers up a couple of possibilities; but both are wrong. The overall goal for the chapter that so vexes Corlett is not to explore the field or tradition of human rights but to see what light, if any, Searle’s social ontology sheds on the ontology of human rights.[56] Towards the end of his chapter, Searle, having partially (but hardly completely) explored the debate on human rights, summarizes his basic position, using italics:

the justification for human rights cannot be ethically neutral. It involves more than just a biological conception of what sorts of beings we are; it also involves a conception of what is valuable, actually or potentially, about our very existence.[57]

Though he does not speak of morality in this quotation, he mentions ethics and elaborates what he means: it concerns what is valuable about our existence, which is to say, what is good, and best even. In other words, he insists on the need to formulate human rights by the light of reason (it is unclear how else such universal human rights might be formulated), with close attention paid to considerations grounded in the non-institutional, i.e. the biological, and extending into the ethical and moral. This quotation, in and of itself, should be enough to short-circuit Corlett’s argument, and knock the stuffing, the straw, out of the Searlean stand-in he constructs; in the face of it he could gracefully admit that he had misread Searle (for misreading is something to which even the best of us succumb), perhaps express gratitude for the clarification, and all involved could move on. Or not.

And so, in 2016 and 2017 these words from Searle (2010), cited in Lobo, which constitute clear evidence that Searle acknowledges the need to ground human rights in moral norms, are simply ignored or disputed as not saying exactly what Corlett wants (remember: he will accept nothing less than complete justification). It remains to be seen whether they will be ignored again, so it is worth emphasizing what Searle is doing here: Searle is doing exactly what Corlett says he is not doing. That Searle doesn’t use Corlett’s favorite phrases is what seems to make it impossible for Corlett to see this. With the benefit of this second clarification, perhaps he will.

But Searle is also doing something else. While not concerned at all to align his thinking with Corlett’s hallowed tradition, he is anxious to explore and resolve a paradox at the heart of thinking about human rights: on the one hand it is said human rights did not exist before the Enlightenment, but on the other hand, it is also said that human rights have always existed, but were only recognized with the Enlightenment, and indeed, can exist even when not recognized.[58]

Searle’s way of resolving the paradox is what was argued in Lobo to be his big contribution to the debate, which Corlett in 2017 dismisses as unoriginal.

So Who Is Right?

First, it is important to see how Corlett understands Lobo’s paraphrasing of Searle’s contribution. Corlett, conveniently (in more than one sense of the word) cites Lobo summarizing Searle: “Searle ‘… makes a contribution to the philosophy of human rights whose importance, I think, is hard to exaggerate, when he points out that what is crucial is that their potential bearers be recognized as a fully-fledged member of the human community and thus as entitled to the rights that accrue, automatically and inalienably, to each and every member of said community’ (Lobo 2017, 28.).”[59] This quotation is truncated, which would not be a problem[60] were the truncation signaled with an ellipsis; but it is not (and the initial ellipsis is not being questioned here).[61] Here is what Lobo wrote, with the missing words italicized:

…makes a contribution to the philosophy of human rights whose importance, I think, is hard to exaggerate, when he points out that what is crucial is that their potential bearers be recognized as actual bearers, that each and every member of the human species must be recognized as a fully-fledged member of the human community and thus as entitled to the rights that accrue, automatically and inalienably, to each and every member of said community.[62]

Does it make a difference? Insofar as Corlett’s version of Lobo evinces once more what might at this point be justly characterized as a tendency to selectively read, to conveniently misread, it probably makes a difference. The difference it might make is compounded by the fact that Corlett repeats the misquotation again on his next page, and it is on the basis of this misquotation that he dismisses as unoriginal what Lobo has said is an important contribution to the human rights discussion, as “either assumed, asserted, or argued by many doing rights theory during the past few decades.”[63] Tellingly, he does not cite any textual support for this assertion. He does however again quote the substance of the misquotation (this is the third time), as part of his attempt to denude Searle’s contribution of value.

It is perhaps inevitable that, having misquoted Lobo, Corlett should misunderstand him, and believe him to be saying something already and widely said. What is it that Corlett thinks Lobo is saying, that has already been said? It is this: “one must be a human being in order to be in a position to make valid rights claims.”[64] Or, the “fact” that humans are “members of the human community”, Corlett continues, “places them in a position to possess human rights.”[65] Now if this were what Lobo is saying, and if this were what Searle is saying (for Lobo is taken to be explicating Searle here), then Corlett would be right, and Lobo, at the very least, would probably be embarrassed, but grateful for the lesson. But again, this formulation of Corlett is based on a misreading, evidenced by Corlett’s reliance on an unreliable, and ungrammatical misquotation he produced.

What the Meaning of the Argument Was in the First Place

So what is Lobo actually saying? First, a return to the accurate quote, again adding emphasis where appropriate: with regard to human rights “what is crucial is that their potential bearers be recognized as actual bearers.” To make sense of this (these are the final lines of Lobo; the idea has been explicated previously in that text), one has to understand the socio-ontological difference between potential and actual bearers, and it is here that Searle’s work, whatever faults it may well and otherwise manifest, is so important.

For Searle’s work (specifically his discussion of status functions) allows us to understand that being human is not an ontological condition but a socio-ontological condition. This is a subtle point.[66] But it is profound.[67] One might say that there is the species, homo sapiens, (this is in a sense an assertion about ontological reality) members of which are potential bearers of human rights. But at the level of the symbolic, at the level of social ontology, members of the species homo sapiens are only often, but not always, regarded as humans and thus — lately at least — as possessors of human rights. Thus, potential bearers of human rights, that is members of the species homo sapiens, have to be recognized as humans (members of the human community) if they are to effectively have their human rights. If Corlett does not understand this, it is simply because he does not understand how status functions work, which is the subject for another occasion.

The second part of the text mishandled by Corlett is this, emphasizing with italics where necessary: “each and every member of the human species [i.e. every individual homo sapiens] must be recognized as a fully-fledged member of the human community and thus as entitled to” human rights. Note what is not being said here. It is not being said that “one must be a human being in order to be in a position to make valid rights claims”; nor is it being said that “members of the community of humans […] possess human rights.” These are both by now trite observations which, and Corlett is surely correct here, have long been part of the human rights tradition.

What is being said, based on Searlean social ontology, is that one must be recognized as a human being in order to make valid rights claims, that one must be seen as a member of the human community to (effectively) possess human rights, or to not have one’s human rights violated. What is the difference? The difference is that being a homo sapiens does not mean you are seen as, recognized as, a human being, a member of the community, and it is in this sense that a homo sapiens/human being can be said to both possess and be denied their human rights. Corlett’s whole discourse in 2016 and 2017 is predicated on the (mistaken) assumption that being human is socio-ontologically unproblematic and that the issue is the social existence and recognition of rights; but in fact it is about where and when homo sapiens are recognized and not recognized qua humans.

Corlett, and likely the tradition he invokes (if indeed he invokes its positions accurately, which at this point, it is not uncharitable to imagine, we have reason to doubt), may well say “No! Humans are humans, and as such are possessors of human rights!” Well, he and his vaunted tradition should go say it to Mr. Saifullah.

The Voice of a Lost Man

Mr. Saifullah? The reader is referred to the present essay’s epigraph. Mr. Saifullah, according to the story in the New York Times, is a member of the Rohingya refugee community living in Pakistan for the last four decades, in conditions that the paper describes as “distressingly impoverished even by Karachi’s standards.” He and the community to which he belongs are actively being denied their basic rights.

But how can this be so?, Corlett must ask — for surely Mr. Saifullah is human; clearly he belongs to the human community. Such a “fact”, Corlett would say, means he possesses rights, and he can claim them. Corlett would invoke the morally normative elements of the rights Mr. Saifullah possesses as a member of the human community and insist on the application of the normativity in question. And surely, just like that, Mr. Saifullah’s humanity would be recognized by the relevant parties and his rights, never lost, just violated, would be made effective.

If only it were so easy…

But Mr. Saifullah, unlike Corlett, gets it. He understands (that is to say, his words evidence at least an implicit understanding) that being a homo sapiens does not in fact make you a member of the human community, for he understands that the human community is not ontological in any straightforward way; rather, it is socially and symbolically ontological.[68] He understands that it is not what one is, but how one is seen, for how one is seen is what determines whether one will be afforded the considerations rights supposedly guarantee one.

Look at Mr. Saifullah’s words: “They won’t let me be a citizen, because then they have to give me rights and they won’t call me a refugee because then they have to give me aid”. And then: “I am not a citizen or a refugee. I am an illegal alien. I am nothing.” He understands that they — they, those who are not part of any hallowed tradition, but whose thinking on the matter is nonetheless decisive in a way Corlett, safely ensconced in the beautiful University of San Diego, doesn’t seem to even want to comprehend — don’t want to see him as a citizen or grant him citizenship, because then his rights as a human would have to be honored.

But nor will they call him a refugee, because in today’s world, refugees have rights to aid that have to be honored. But Mr. Saifullah is not done. For he knows that the Pakistani functionaries who are not honoring his rights cannot simply ignore him as if he were not there. He is not invisible; he exists.[69] But as what? And so they assign him a status function, though it is not the status function of human: in effect they are saying, this homo sapiens is not (at least not first and foremost) a human; he is, rather, an illegal alien.

As such it is not so much that his rights as a human are violated — for he is not seen as a human, at least not in the important sense; it is that qua this sort of social object — i.e. an other beyond the protections of the law — his “rights” need not be so much be ignored as actively violated. For how else would one treat an illegal alien?[70] In being counted as an illegal alien, he is able to be counted as nothing.

There is little left to say, except for the fact that Searle’s contribution sheds light on the rise in animal rights activism and indeed, on cases where people treat animals better than they treat homo sapiens. The former somehow acquire the status of human (understood in this case as the bearer of “rights” to life and comfort and to not be killed for food, etc.) and receive a level of care that millions of homo sapiens do not, these latter being assigned the status not of humans but of “the poor” or “the criminal” or “illegal aliens” or what have you. This point was made in Lobo.[71]

Conclusion: isn’t it (really) ironic?

Professor Corlett, to conclude, ends with stupendous irony, only adding substance to and validating Searle’s contribution, when he argues, in an attempt to score an inconsequential point against Searle (and Lobo), that there “are humans [what he means to say, though he doesn’t know it, is homo sapiens] both throughout history and today who have neither a moral […] right to life nor to freedom of expression, namely, those who deserve capital punishment based on their” crimes.[72]

Here Corlett is evidencing his subjective, relative perspective. For in Colombia, for example, such homo sapiens do not exist (at least not today): the Colombian constitution explicitly forbids not only capital punishment but also life imprisonment, no matter what the crime. But he is also evidencing an implicit endorsement of the Searlean perspective. For, of course, in contexts where such respect for what are still considered members of the human community in Colombia is absent, such homo sapiens are indeed, as he says, displaced from said community, and thus stripped of the rights that are otherwise a “simple” consequence of being (declared) human.

How? By declaring them to be something else. Which is to say that they are, through an institutional process, assigned a status function which, given the particular institutional arrangement and its foundational moral norms, supersedes the status function of human: they become now the condemned, convicts, guilty of capital crimes or indeed crimes against humanity, all status functions which permit and, in the corresponding situation, possibly demand that the organism to which such status function is assigned be put to death. Hopefully Professor Corlett will take some time to consider the consequences of this latent corroboration of Lobo’s presentation of Searle before dashing off another excessively long response. Or perhaps he will take the higher road, and simply leave things as they now stand.

Contact details: globo@uniandes.edu.co

References

Corlett, J. Angelo. “More on Searle on Human Rights.” Social Epistemology Review and Reply Collective 6, no. 10 (2017): 15-36.

Corlett, J. Angelo. “Searle on Human Rights.” Social Epistemology 30, no. 4 (2016): 440-463.

Lobo, Gregory J. “Reason, Morality and Recognition: On Searle’s Theory of Human Rights.” Social Epistemology Review and Reply Collective 6, no 9: (2017): 22-28.

Searle, John R. Making the Social World: The Structure of Human Civilization. Oxford: Oxford University Press, 2010.

Searle, John R. “Replies.” Analysis 71, no. 4 (2011): 733-741.

[1] Mehreen Zahra-Malik, “Far From Myanmar Violence, Rohingya in Pakistan Are Seething,” The New York Times, Sep. 12, 2017, accessed Sep. 13, 2017 https://www.nytimes.com/2017/09/12/world/asia/rohingya-pakistan-myanmar-violence.html?emc=edit_th_20170913&nl=todaysheadlines&nlid=22512676. A version of this article appears in print on September 13, 2017, on Page A4 of the New York edition with the headline: Far From Myanmar’s Strife, Pakistan’s Rohingya Suffer.

[2] J Angelo Corlett, “Searle on Human Rights,” Social Epistemology 30, no. 4 (2016): 440-463.

[3] Gregory J Lobo, “Reason, Morality and Recognition,” Social Epistemology Review and Reply Collective 6, no. 9 (2017): 22-28.

[4] Fearing that the use of the first person, while often justified, nonetheless interrupts the dialectic of collaborative reasoning, as interlocutors instantiate a personal, private relationship with “their” arguments and interpretations, such that they become embodiments of the same and thus refractory to evidence that contradicts them/their position, the third person is employed consistently throughout this essay, in an attempt to avoid what in Colombia is called a dialogue of the deaf (diálogo de sordos).

[5] J Angelo Corlett, “More on Searle on Human Rights,” Social Epistemology Review and Reply Collective 6, no. 10 (2017): 15-36.

[6] John R Searle, Making the Social World: The Structure of Human Civilization (Oxford: Oxford

University Press, 2010).

[7]John R Searle, “Replies” Analysis 71, no. 4 (2011): 733-741.

[8] Corlett’s mishandling of Lobo’s words is troubling on the face of it; it is even more so in light of Corlett’s insistence that “both critics and defenders of an author’s work owe it to themselves, the author, and others to carefully quote an author in constructing her position” (2017, 32 emphasis added).

[9] Corlett, “Searle,” 454.

[10] Corlett, “Searle,” 455. It shall go unremarked that “complete justification” would seem to be an impossible standard.

[11] Corlett, “Searle,” 454.

[12] Corlett, “Searle,” 454-455. More will be said about Corlett’s use of the notion of objective below.

[13] Corlett, “Searle,” 461-462.

[14] Corlett, “Searle,” 454.

[15] Corlett, “Searle,” 454.

[16] Though Lobo’s sincere attempt to help Corlett understand and correct the errors in his understanding of Searle have been received ungraciously by Corlett and, rather, met with snide but baseless insinuations (see 2017, 32), the temptation to fall into a mimetic replication of Corlett’s unprofessional response will here be resisted. The characterization of Corlett as dishonest, to be absolutely clear, is direct, and based on the evidence: that even though Lobo points out what Corlett has done in 2016, alerting him to his error, Corlett continues to ignore the evidence, and proceeds as if it didn’t exist and directly refute his position. He might have been understandably distracted the first time round, but the second time suggests something approaching dishonesty. Additionally, elsewhere in 2017 (see page 26), Corlett again acts in such a way as to justify the charge of dishonesty, as when he textually cites Lobo paraphrasing Searle, ignores Lobo’s textual citation of Searle, and then faults Lobo for not citing Searle directly.

[17] At the risk of redundancy, the reader is again reminded that in 2017 Corlett points out that “both critics and defenders of an author’s work owe it to themselves, the author, and others to carefully quote an author in constructing her position” (2017, 32). It seems that  Corlett exempts himself from this simple standard, actively transgressing it by engaging in selective quotation to serve his ends or by simply representing his own version of an author’s position without recourse to textual evidence. For example, Corlett argues, or implies (the difference is hugely important to Corlett) that someone (probably Searle, possibly Lobo) is “insist[ing] that only humans can have a right to life” (2017, 33). But no one, at least niether Searle nor Lobo, insists on such a thing.

[18] Searle, “Replies,” 741.

[19] Corlett, “Searle,” 456.

[20] Searle, “Replies,” 741.

[21] Corlett, “More,” 28-29, emphasis added. It is important to point out that the issue is not really whether Searle’s thinking can be aligned with any tradition. What is in question is whether Searle integrates what Corlett refers to as moral normativity into his thinking on human rights. Though Searle doesn’t use that precise phrasing, the evidence is insurmountable: he clearly does.

[22] Again, Corlett deploys the phrase “Searlean madness” in 2016 (456) to make the case that there is no distance between Searle’s thinking and white supremacy. One wonders how much distance there is between this sort of aspersion and calumny.

[23] Corlett, “Searle,” 458.

[24] Corlett, “More,” 29.

[25] Corlett, “Searle,” 455.

[26] Corlett, “More,” 29.

[27] Corlett, “More,” 29.

[28] Searle, Making, 192.

[29] Searle, Making, 192. In footnote 18 on page 29 of 2017, Corlett makes a fuss about the difference between reasonable and rational, emphasizing his preference for the former. His argument is unconvincing and one can just as easily make the case for their interchangeability. A quick online search using Google reveals: rationality — the quality of being based on or in accordance with reason or logic. Corlett is quite clearly clutching at straw(s).

[30] Searle, Making, 192.

[31] Corlett, “Searle,” 455. One might ask, justly, in what way this formulation differs from Searle’s insistence that human rights be formulated to rationally impose an obligation on all human beings to respect them.

[32] Corlett, “More,” 22.

[33] Corlett, “More,” 29.

[34] Corlett, “Searle”, 455. Corlett uses quotation marks around this phrase, though it is not clear why. For they most certainly are not scare quotes. His use of the term is non-ironic, thoroughly sincere.

[35] Corlett, “Searle,” 456, 460.

[36] Corlett, “Searle,” 457.

[37] Corlett, “Searle,” 456, 457 twice, 459.

[38] Corlett, “Searle,” 455, 457.

[39] Corlett, “Searle,” 457.

[40] Corlett, “More,” 20.

[41] Corlett, “More,” 23.

[42] Wait, what? Corlett, “More,” 20.

[43] Corlett, “More,” 22.

[44] It is noted, in passing, that Searle would recognize such concepts to be subject to argument. See below.

[45] Corlett, “More,” 25.

[46] Stipulated here.

[47] To this most basic criticism can be added that Corlett, in repeatedly drawing on the formulation that human rights are “discovered by human reason” (2016, 455; 2017, 25, 34), seems to think that rights are on the same level as black holes and quarks (truly “discovered” by human reason before being empirically observed), and that, moreover, reason itself is an uncorrupt tool, that its ethical discoveries are somehow beyond subjectivity and relativity.

[48] That is to say, cited selectively, for Corlett’s rhetorical convenience, rather than for the dialectical process.

[49] Searle, “Replies,” 741.

[50] Searle, “Replies,” 741.

[51] Which might well lead one to describe such rights as eternal, insofar as eternal can be taken to mean unchanging.

[52] Searle, “Replies,” 741.

[53] Searle, “Replies,” 741.

[54] Searle, “Replies,” 741.

[55] Corlett, “More,” 33.

[56] Searle, Making, 175.

[57] Searle, Making, 190.

[58] Searle, Making, 177.

[59] Corlett, “More,” 17.

[60] In point of fact it would be a problem, for as cited by Corlett, it is ungrammatical. Corlett appears not to notice.

[61] At the risk of even more redundancy: In 2017 Corlett insists that “both critics and defenders of an author’s work owe it to themselves, the author, and others to carefully quote an author in constructing her position” (2017, 32, emphasis added).

[62] Lobo, “Reason,” 28.

[63] Corlett, “More,” 18.

[64] Corlett, “More,” 18.

[65] Corlett, “More,” 18.

[66] Hence, possibly, Corlett’s difficulty with it?

[67] See previous note.

[68] As any high schooler who learned the Greek roots of the word barbarian implicitly understands too.

[69] One might put it this way: his ontology is not in question (but nor is it decisive). What is in question, and what will be decisive, is his social ontology.

[70] This question, should it not be clear, is posed rhetorically.

[71] As further evidence of Corlett’s problematic practice, he usurps Lobo’s use of the phenomena of animal rights to make what seems to be a similar point, but without attribution. But typically, he gets it wrong because he misses the point. Someone who, in his own words, “painstakingly summarize[d]” Searle’s social ontology clearly doesn’t understand Searle’s main contribution to the field, status functions, and thus misses the point that social ontology is not about what is, it is about what can claim to be and what is recognized as being. People treat animals as if they were human, sometimes as if they were more than human. Often, people do not treat humans (homo sapiens) as human.

[72] Corlett, “More,” 2017.

Author Information: J. Angelo Corlett, San Diego State University, acorlett@mail.sdsu.edu

Corlett, J. Angelo. “More on Searle on Human Rights[1].” Social Epistemology Review and Reply Collective 6, no. 10 (2017): 15-36.

The PDF of the article gives specific page numbers. Shortlink: http://wp.me/p1Bfg0-3Lq

Editor’s Note: A significant revision to this piece was posted on 26 September 2017.

Please refer to:

Image credit: Hervé, via flickr

In Corlett (2016), I articulated some concerns with Professor John Searle’s view of human rights. I hesitate to refer to his view on human rights as a theory in that the informational content of what Searle provides concerning human rights seems to fall short of a theory, that is, if the desiderata of a theory of human rights include its being compared to and contrasted with several leading philosophical works on human rights and an attempt is made to explain why one’s own account is more plausible than the competing views concerning at least the nature, value and function of human rights and it is obvious that the contributions to the discussion (in this case, on human rights) are significantly original in content. Searle’s view on human rights also fails to include an account of what exactly distinguishes human rights from various other rights.

On Searle’s View of Human Rights

Searle’s account also fails to provide analyses of the justification and role(s) of such rights in an overall political/legal/social philosophy. Indeed, these matters are inter-related as the justification of one’s own view would appear to engage the concepts and arguments of others if for no other reason than to not endorse that which has already been proven either problematic or implausible.[2] This is not intended as a deprecation of Searle’s view, but rather as a distinction to be made between part of what might count as a theory of human rights and what does not count as such. For Searle’s view on human rights could turn out to be a plausible beginning to a theory of human rights even though his view does not amount to a theory of human rights in the sense noted.

The previous paragraph’s discussion about why I do not refer to Searle’s thinking on human rights in Searle (2010) as a theory of human rights does not address the philosophical-ethical plausibility of his view of human rights. However, had Searle managed to seriously consider the work of various distinguished contemporary philosophers of human rights and rights more generally (e.g., Dworkin 1978; Feinberg 1973; Feinberg 1980; Feinberg 1992; Nickel 1987; Rawls 1999; Wellman 1985; Wellman 2011), perhaps he would have gained several insights into what might have led him to thereby revise his view of human rights. This article constitutes an attempt to engage interested readers on Searle’s view of human rights and why certain features of it are problematic.[3]

Along the way, I shall elaborate some points I made in Corlett (2016) for the sake of both further clarity and the possibility of making meaningful philosophical progress with regard to the nature and value of social knowledge and human rights. I concur with my closing conditional remarks in Corlett (2016, 461-462) that “…if human rights contain a morally normative element, one which is non-institutional and is not and cannot be fully captured by Searle’s analysis, then Searle’s analysis of human rights is problematic as noted.” My claim does not imply that Searle’s view on human rights cannot, upon elaboration which is genuinely consistent with what he states about human rights in particular and his social ontology more generally, be made plausible. Indeed, this appears to be in part what Professor Lobo (2017) attempts to accomplish. In the end, however, his attempt does not succeed in part because some of what he attributes to Searle appears to find no textual support in Searle (2010)[4] and also attributes to Searle ideas which appear to convert what Searle states about human rights into something which resembles but is not the same as what I describe as the human rights tradition.[5]

Even some of what Lobo attributes to Searle regarding human rights is not compatible with the human rights tradition in a fundamental respect. Of course, this does not mean that the human rights tradition is correct and Searle is incorrect about human rights. But it substantiates my original concern that there lies an important incongruity between Searle’s view of human rights and what I refer to as the dominant tradition of human rights. In such cases, someone such as Searle assumes the risk of arguing in favor of something that is not the same thing as the manner in which that thing is construed by many or most philosophers and others who use the term. And unless someone such as Searle is careful to define “human right” in such a manner so as to compare and contrast it with what, for instance, I am articulating as a human right according to said tradition, confusion is likely to result.

Implied in my examination of Searle on human rights is the possibility that Searle articulates a view about Y, wherein the human rights tradition articulates, rightly or wrongly, a view about X wherein in each case the Y or X term is construed as a human right. While this is not necessarily a bad thing, it might prove embarrassing if, for instance, either Searle or someone else thinks Searle is discussing the same conception of human rights held by the human rights tradition. For the sake of clarity, it is important to distinguish different attempts to articulate “human right” so that readers can decide for themselves which one is more plausible, and why.

But even if one grants the internal logical and conceptual consistency of Searle’s view of human rights, one might reasonably question the extent to which Searle’s view on human rights matches reality. For coherence is at best a necessary condition of knowledge. It is hardly sufficient, as even some leading coherentists admit. (Lehrer 2000, Chapters 6-7) In this article, I attempt to elaborate on what that tradition means when it mentions or uses “human right.” In so doing, I hope to shed more light on how it appears that Searle’s notion of a human right is dissimilar to that of the tradition’s.

My hope is that the nature of Searle’s view will be seen for what it is (by all means, of course, accurately as respect for any plausible principle of charity requires as much) in the light of the established views and theories of human rights devised by leading rights theorists within the dominant human rights tradition. If this is accomplished, I am confident that readers who are reasonably well-versed in human rights theory and the nature and value of rights more generally will be able to better grasp what Searle is up to in his chapter on human rights. Often times when a position is contrasted with competing views on a topic clarity emerges pertaining to not only the subject matter at hand, but with regard to what each competing view is attempting to argue.

My guess is that Searle’s view of human rights as social and institutional rights depends on an unstated (by Searle) meta-ethic, one which requires independent defense. Of course, the same holds for any account of human rights and the meta-ethic which supports it. Perhaps Searle might have been able to argue plausibly that, amongst the soundest and most highly respected competing approaches to human rights, his is the most superior, and for whatever reasons. Moreover, this might have included his providing a defense of the meta-ethical foundations for his view of human rights. For in the end, any account of human rights would ultimately need to be justified on the basis of a plausible meta-ethic. This seems to hold true whether the account of human rights is a skeptical one which relies on the plausibility of some version of, say, moral anti-realism, or whether it is a positive view of human rights which might rely on, say, a realist meta-ethic.

But alas, Searle chose not to do this, and this is why, contrary to some (e.g., Lobo 2017, 22), it is (if not “central”) at least relevant to the discussion in that Searle conspicuously refuses to engage recent and distinguished philosophical work on human rights and in an era of human history wherein such rights are discussed with regularity throughout much of the world. Had Searle deemed it sufficiently worthwhile for him to study and engage leading contemporary philosophers of rights he might have avoided some of the following confusions and troubles with his own thinking on human rights.

Contemporary Philosophy of Rights

Alternatively, Searle might have succeeded in either demonstrating why the competing human rights views fare worse than his own and/or explaining why his view of human rights is superior to its competitors. Or, Searle might have been able to explain precisely what he states about human rights that is both important, plausible and original to human rights theory. After all, some think that Searle “…makes a contribution to the philosophy of human rights whose importance, I think, is hard to exaggerate, when he points out that what is crucial is that their potential bearers be recognized as a fully-fledged member of the human community and thus as entitled to the rights that accrue, automatically and inalienably, to each and every member of said community” (Lobo 2017, 28).

Yet the content of “that their potential bearers be recognized as a fully-fledged member of the human community and thus as entitled to the rights that accrue, automatically and inalienably, to each and every member of said community” is either assumed, asserted, or argued by many doing rights theory during the past few decades. Indeed, this claim implicitly attributed to Searle as one of Searle’s alleged contributions to human rights theory might turn out to be what several positive human rights theorists (as opposed to the human rights skeptics) have in common with one another!

Part of the very idea of a right, especially a human claim right, is that the right-bearer is recognized as a proper subject to make a valid claim to said right, that she is in a position, morally speaking, to do so. And according to many human rights theorists, one must be a human being in order to be in a position to make valid rights claims. So as long as theorists argue for the importance of human rights, they explicitly or implicitly accept the point about how humans ought to be considered to be important bearers of rights protections in that they are members of the community of humans because, among other things, this fact about them places them in a position to possess human rights.[6] However, as we shall see, even this apparently innocuous claim or assumption will be shown to be problematic, below, insofar as the claim is taken at its face value, lacking important qualifications. For if it is seen as a claim about human rights as absolute and non-conflictable, it falls prey to some considerations of justice.

It is difficult to understand how Searle is responsible for contributing to human rights theory a claim such as “what is crucial is that their potential bearers be recognized as a fully-fledged member of the human community and thus as entitled to the rights that accrue, automatically and inalienably, to each and every member of said community” when it is hard to imagine, having studied many philosophers of rights, a positive human rights theorist who does not or would not accept such a claim. Furthermore, to think of such a claim as Searle’s “contribution to the philosophy of human rights” is to disregard what for decades has been a fundamental point of contention between several human rights theorists and the governments and peoples many in favor of human rights seek to convince about the “rights of man” and how such rights (human rights) ought to be respected and protected for the sake of all persons. How can Searle have made this alleged contribution to the philosophy of human rights when the point in question seems unoriginal with Searle?

Elaborating Searle on Human Rights

It is important to draw a distinction between an institutional right and a social one. For one can have an institutional (say, a legal) right without it being socially recognized, approved or accepted (that is, recognized, approved or accepted by, say, the majority of societal members). If X is a social right, X exists to the extent that society recognizes X as such. Thus with regard to social rights, possession and recognition are connected because such rights are socially constructed, that is, such rights do not exist except by way of societal agreement and recognition. For society must recognize such rights in order for it to agree that they exist and under whichever conditions. But with human rights as moral or ethical rights, the possession of said rights is not necessarily connected to the recognition thereof as one can possess said rights without their being recognized by anyone whomsoever (even by the rightholder herself!).

Human rights construed as ethical or moral ones in this traditional sense do not exist because society says they do. Rather, they exist because valid ethical or moral rules or principles confer on X that X has a human right, whatever a human right turns out to be. As I state in Corlett (2016), the United States Supreme Court’s 1954 Brown v. Board of Education ruling and its social and political aftermath demonstrates the divide between the Court’s opinion, on the one hand, and most of U.S. society at that time, on the other. In that case, the right was in 1954 recognized institutionally (by the Court) but not, at that time, by the majority of U.S. society.[7] For it took many school districts throughout the U.S. decades after 1954 to comply “with all deliberate speed” with the Brown decision. Indeed, many would argue that even today said right is not adequately or fully recognized socially within the U.S. In any case, a right (including a human right) might be recognized institutionally while not being recognized socially.

Moreover, a human right or a right in general can be recognized socially but not institutionally. Searle’s example of this category of right is articulated in the context of his disagreement with the likes of Jeremy Bentham with regard to Bentham’s assertion that rights are those which are recognized institutionally (by a legal authority). Searle’s proposed counter-example to Bentham’s claim is that of a marital partner who has, Searle asserts, an “informal” (non-institutional, “not legally sanctioned”) “…right to be consulted beforehand about any life-changing decisions on the part of the other spouse.” (Searle 2010, 192) However, Searle fails to provide a reason to ground this assertion. Yet Searle’s proposed example is hardly self-evident. Nor is the point clear. Does Searle mean that each and every spouse possesses this right, and absolutely? Or, does he mean that only some such spouses do?

Absent qualification, his language seems to suggest that he believes that each spouse possesses such a right, and absolutely. If this is Searle’s meaning, and if no plausible reason can be provided for such an idea, then Searle has not given us an example of a socially recognized right that is not recognized by law (unless all Searle means is that some in society can agree that such is a right within their own marriages, regardless of whether it is really a right). This can hardly make Searle’s view of human rights congruent with what I refer to as the “dominant human rights tradition” wherein human rights are construed, rightly or wrongly, as moral rights grounded by way of reason in valid moral rules or principles. By “valid” is meant objectively valid, all relevant things considered.

Possible Counter-Examples

In fact, there is at least one counter-example to Searle’s proposal [of an (unqualified) “informal” “…right to be consulted beforehand about any life-changing decisions on the part of the other spouse”] underlying his alleged counter-example to Bentham’s point. Consider a woman who is abused by her legal spouse and wishes to exert her legal and moral (ethical) right to self-determination quite independently of her abusive spouse’s interests or claims to the contrary. Would it not be reasonable to think that there are such cases where she has no duty to consult her spouse? If so, then Searle’s assertion, as stated and absent qualification, is problematic and there seems to be, for all Searle states in Searle (2010), no (general) informal and non-institutional right to be consulted by one’s spouse in the manner in which he seems to imagine. This is especially the case if the strong correlativity thesis about rights and duties is plausible according to which, say, a spouse has a right to be consulted which correlates strongly with the other spouse’s duty to consult.[8] This does not mean that each spouse has no claim or interest along the lines stated by Searle. But if a right (including a human right) constitutes a valid moral claim or interest which one has over and against others, then the counter-example to Searle’s claim here undermines his proposal that said “right” is a right after all.

The spouse in Searle’s example has a claim or interest in being consulted. However, it is unclear that she always has a valid such claim or interest which would correlate with the other spouse’s duty to consult, especially in the kind of case I have provided, that is, if personal autonomy, self-determination, self-respect and the separateness of persons are moral values that trump Searle’s alleged spousal right to be consulted in the scenario he imagines.

Perhaps a better example of a right one has which is not recognized by law but socially recognized is one in which the majority of society or even a majority of a particular collective (I have in mind here especially a collective or the decision-making conglomerate type[9]) within society recognizes but is not recognized by that society’s legal system. Perhaps what might be referred to as rights which are not recognized by “recently-established laws” (Corlett 2009, Chapter 2) which do not yet constitute “long-established laws” qualify here wherein the legal system of a society takes some time to fully or mostly endorse a particular right that society in general or a particular group within society already endorses.

Perhaps given the complicated and sometimes inconsistent history of the Court decisions concerning the U.S. First Amendment right to freedom of expression (Rabban 1999; Corlett 2009, 22), a right to which Searle refers and attempts to make much of in his work on human rights (Searle 2010, 187-191),[10] qualifies as one which for at least some period of time in its history was endorsed either by the majority of U.S. societal members or by certain groups within it but was simultaneously delimited in crucial ways by the Court during the “free speech fights” in the early 20th century. It is plausible, more recently for instance, to think that even when the Court ruled against certain expressions (Cf. Federal Communications Commission v. Pacifica Foundation 438 US 726 1978),[11] the American Civil Liberties Union and certain other civil libertarian groups and several individual U.S. citizens disagreed with the Court’s 5-4 ruling and sided with the dissenting opinion of the Court. Yet it is plausible to think that the right to freedom of expression was illegitimately delimited by the Court in said decision. But if true, this would hardly mean that there was not a legal and/or moral right to freedom of expression in precisely this case as the dissenting justices might have been correct that certain aspects of the law actually supported their position on this matter and not the opinion of the majority justices.[12] Thus sense can be made of a socially recognized human right (wherein it is also a legally justified one) which is not legally recognized because it is not validated by the rules of that legal system which empower a court to make a decision (but wherein that decision turns out to be an unconstitutional one, all relevant things considered).

A legal positivist might disagree with such a claim in that for her a legal right just is what the law says is a right. But legal positivism requires independent justification for such a concern to gain adequate philosophical traction, and that would lead us into a fascinating discussion in the philosophy of law literature which I think for present purposes is, unfortunately, a bit too far afield given my more narrow interests in Searle’s view of human rights and my interest here in demonstrating the plausibility of Searle’s point that there might be socially recognized rights that are not recognized by the institution of law. Furthermore, even in light of the Court’s ruling in FCC v. Pacifica, the Court may have gotten it legally wrong in that a closer and more comprehensive consideration of the law (especially First Amendment law) may well have meant that the Court should have, based perhaps also on supportive plausible moral rules or principles, decided the case in favor of Pacifica and not the FCC.

If this is true, then it would suggest that the law and rights are not always what the institution of law says they are in a particular decision or case as the law (or those acting on its behalf) can sometimes make incorrect (institutionally unjustified, all relevant things considered) decisions which are based neither in the most plausible moral rules or principles or in the law itself, most plausibly considered.[13] After all, it is argued, the law is often if not always a matter of principled interpretation[14] (Corlett 2009, Chapters 1-2; Dworkin 1985; Dworkin 1986; Feinberg 2003, Chapter 1).

Thus while Searle is correct that not all rights such as “informal” ones are institutionally legal ones recognized by law, he seems to have provided a problematic example of such a right, that is, to the extent that personal self-determination [perhaps grounded in the Rawlsian conceptions of personal autonomy, self-respect and the separateness of persons (Rawls 1971) and in the Feinbergian notions of self-respect, respect for others, and human dignity which seeks to diminish servility (Feinberg 1980, 155; Feinberg 1992, 202, 226-227 as noted in Corlett 2016, 458)] is sufficiently important to ground a spouse’s right to decide for herself what to do with her life without consulting her spouse under certain conditions. Of course, much discussion of moral, social, political and legal philosophy revolves around such matters and serves as a reminder of how complicated are the tasks of attempting to ultimately ground human rights and rights in general as such rights are conceptualized by most human rights theorists.

By now the reader can discern that the allegation that I misrepresent Searle’s view of rights (Lobo 2017, 22) is problematic, as is the assertion that “Searle’s position on human rights is actually very similar and perhaps even identical to the one Corlett appears to prefer.” (Lobo 2017, 22) But it is also false or at least misleading to claim that “Searle in fact argues for an ethical, non-institutional understanding of human rights—one quite in line with what Corlett calls the ‘dominant ethical notion of human rights’.” (Lobo 2017, 22) And it is false that “Searle argues that human rights demand an ethically normative foundation, on which his analysis [is] built.” (Lobo 2017, 22) In what follows, these matters are clarified.

In Corlett (2016), I make the claim that, for all Searle states about human rights in Searle (2010), there is no normatively ethical (“moral”) component to Searle’s view on human rights and this fundamental fact distances Searle’s view of human rights from the dominant (contemporary) tradition on human rights which construes human rights as fundamentally ethical or moral in the normative sense. Whatever else human rights are, according to said tradition, they are non-institutionally moral or ethical, backed by valid moral or ethical principles or rules in, say, the Feinbergian sense. Rightly or wrongly, this is how human rights are normally construed by said tradition. This approach to human rights as moral rights in this sense is not endorsed by Searle. Rather, Searle briefly discusses the Bentham-MacIntyre notion of legal rights (Searle 2010, 175-176), the theistic conception of “natural” rights (Searle 2010, 183), and his own social construction view of “human rights.”

My claim is not that Searle’s view of human rights cannot possibly be made congruent with the human rights tradition in question, though, as I note above, I come close to stating this in my final remarks when I state one of my main points conditionally. (Corlett 2016, 461-462) Rather, my general point about this matter is that, for all Searle actually writes in Searle (2010), Searle’s own view as presented in Searle (2010) seems to be incongruent with said tradition. Again, this fact in itself does not make Searle’s view implausible as it might turn out that said human rights tradition is itself implausible and Searle’s view on human rights might turn out to be plausible, all relevant things considered. However, to the extent that Searle’s view of human rights is not in accordance with said tradition on the nature and value of human rights and to the extent that the latter is plausible, Searle’s view is problematic in that it lacks a crucial component which said traditional view of human rights possesses: a normatively ethical or moral component in the sense noted above.

This component is not the same as one which allows for the social construction of certain rights, human ones, out of human morals. That would be better termed the social construction of “morality rights,” ones which for all we know can be constructed from the likes of invalid moral rules or principles and which deserve no respect—even if they might be rationally devised. For just as the Thomistic claim that “an [ethically[15]] unjust law is no law at all” rings plausible when properly interpreted with regard to the nature of law, so does the claim that “an ethically or morally invalid rights claim or interest is no right at all” rings true according to this tradition with regard to rights. This is a crucial component found in what I am referring to as the dominant human rights tradition and what is lacking in Searle’s view of human rights.

Once again, that such a component is lacking in Searle’s view of human rights does not in itself prove that his view is implausible. But Searle needs to demonstrate why his view of human rights is philosophically superior to the most plausible competitors on offer. And it is problematic for Searle to not engage in such crucial analytic philosophical enterprise. After all, good analytic philosophy is not a matter of solipsistically asserting one’s own opinion on matters. It requires carefully juxtaposing one’s view with competing and leading views on a subject, and arguing as best one can why one’s own position is better than its competitors. Thus it is false to assert that “Searle in fact argues for an ethical, non-institutional understanding of human rights—one quite in line with what Corlett calls the ‘dominant ethical notion of human rights’ ” (Lobo 2017, 22).

If by “argues” is meant what I have just clarified as my meaning of one of the main aims of analytic philosophical reasoning, then Searle has done precious little to argue for his position in light of the several crucial questions and problems in human rights theory. And it is false that “Searle argues that human rights demand an ethically normative foundation, on which his analysis [is] built” (Lobo 2017, 22) if by this is meant what I have in mind when I use the locution “ethical or moral normativity” or its equivalents.

Agreement on the Meaning of ‘Human Right’?

A further difficulty with Searle’s view of human rights is that even the careful reader has little or no idea if by “human right” Searle means what the leading human rights philosophers mean by said category. As noted above, this courts the possibility of philosophical confusion in that it might well lead to Searle’s arguing for a conception of human rights which is importantly different from the one discussed in the dominant tradition of human rights discourse in philosophy that equivocation can result either on behalf of Searle or his readers.

In effect, this is part of what Corlett (2016) implies in its investigation of Searle’s view of human rights. In exposing the differences between Searle’s conception of human rights and that of what I refer to as the dominant tradition, I am implicitly wondering—even if one grants Searle everything in what he asserts about human rights—if Searle has perhaps demonstrated simply that human rights in some social sense exist. In other words, for all the reader of Searle knows, Searle is articulating human rights as social rights, or Searle has devoted his work to the sociality of human rights especially in terms of their social recognition. But this is not the same as demonstrating that human rights exist insofar as the dominant tradition construes the nature of human rights. Searle’s view lacks crucial components of what the tradition thinks lies at the heart of human rights, what I shall refer to as the “moral or ethical dimension of human rights.” If Searle, recognizing this fact, seeks to argue that his view of human rights is philosophically superior to that of the human rights tradition’s, so be it. But it is dubious to think that Searle has articulated the same (or anything like the same) conception of a human right as that of the tradition in that it courts confusion.

Furthermore, even if we accept the claim that “Searle explicitly rejects the pure institutionalist vision of human rights” (Lobo 2017, 22), it does not follow that Searle “unambiguously aligns himself with the position Corlett is defending when he compares real pure institutionalists….” (Lobo 2017, 22). First, I do not defend any such view of human rights as I share some of Searle’s own concerns about it as they are stated concerning positive rights claims in Searle (2010, 193-194), concerns that have been articulated by various other rights theorists and in Corlett (2009, Chapters 4-5) and Corlett (2010, Chapters 2-4). Rather, I am articulating (but not defending) a general traditional and (for better or for worse) dominant view of them and stating that Searle’s view of human rights runs afoul of that approach. If that view is plausible, then Searle’s view is wanting in a significant manner, as noted above.

Secondly, perhaps Searle, as Lobo wants us to think, believes that his own position on human rights is aligned with said tradition of human rights as I present it. But as I have clarified both in Corlett (2016) and herein, there is a significant disconnect between the two views. Rejecting a purely or largely institutional view of human rights (one lacking an essential normatively ethical or moral component as I articulate it above) hardly makes one a member of the traditionalist camp on human rights. Searle himself has implicitly rejected a purely institutional view of human rights when he attempts, unsuccessfully as pointed out above, to provide an example of an informal non-institutional (non-legal) right in the institution of marriage between spouses. So rejecting human rights institutionalism in the purist sense is insufficient to qualify one as a human rights advocate in the traditional sense as I have articulated it in Corlett (2016) and herein.

Contrary to what is asserted, then, it is not the case that I am “not arguing against Searle’s actual position.” (Lobo 2017, 23) For even granting Searle’s claim that “human rights continue to exist even when they are not recognized” (Searle 2010, 181; Lobo 2017, 23), it does not follow from this that Searle concurs with either Corlett (Corlett’s view of human rights was not even presented in Corlett 2016) or the dominant human rights tradition about the nature and value of human rights. For what makes a human right valid is key here, as noted above. For Searle, it is society (either society at large or a subset of it) which validates such rights as they are socially constructed (again, either by society at large or by a subset of it). For the traditional human rights approach, it is valid moral/ethical principles or rules which confer validity on a human rights claim or interest and thereby confer the right in question to a particular individual or group. And this is a crucial difference.

It is difficult for me to see how Searle concurs with such a view given what he has written in Searle (2010) on human rights. It is not just that one is a human being that makes them possessors of human rights, as Searle seems to argue. (Searle 2010, 182f.) It is also that valid moral/ethical rules or principles confer on one said right and support, all relevant things considered, the claim and/or interest in question—regardless of whether or not any human being (or society) concurs with or recognizes said principles. Thus to construe a human right as a moral right in this sense means that a human right exists even without any societal recognition of said right whatsoever. This makes the social recognition of a human right as a fundamentally moral one neither necessary nor sufficient for the possession of said right.

One implication here is that such rights are understood or discovered by the light of reason. And it is the light of reason that is also said to underlie Searle’s conception of a human right. But other than that, the two conceptions of a human right have little else in common as pertains to human rights possession and the nature of a human right. To the extent that the above is plausible, then it is problematic to allege that “Corlett’s criticism [that Searle’s view of human rights is purely institutional] is misdirected” (Lobo 2017, 23). However, with all fairness to the reader, it is easier to understand this point in light of my current elaborations on such matters discussed in Corlett (2016).

In addition, while it might appear that I was hasty in arguing that Searle’s view of human rights is purely institutional, it is also the case that Searle’s example of a non-institutional right in marriage was found to be problematic and replaced with a better example of my own. So it is unclear whether I was incorrect in stating my point in question concerning whether or not Searle’s view of human rights is purely institutional. For all Searle (2010) states about human rights being non-institutional, he seems to get it wrong by way of his example of such a right. Perhaps if Searle concurred with my example of a non-institutional right in marriage based on each spouse’s right to self-determination and whatever moral or ethical values support it, then I would be willing to modify my point that Searle’s view of human rights is purely institutional, assuming of course that spouses do not constitute a social institution of sorts.[16] For I cannot reasonably retract said claim on the basis of Searle’s problematic example. I already concur with the claim that ethical (moral) rights can exist apart from the law’s recognition of them, but for reasons dissimilar to Searle’s attempt to ground an informal right apart from institutions.

Moreover, my task is in part to reconstruct what Searle actually states pertinent to human rights and related concepts. I believe that I have done so herein and in Corlett (2016). But it is important to note that, as we shall see, Lobo (2017) engages in some rational reconstruction of Searle’s view of human rights as Searle states it. It is not that Lobo, in his unsuccessful attempt to undercut my reading of Searle on human rights, fails to quote Searle and address some of what Searle actually states. Sometimes he does so when presenting Searle’s view. But as we shall see, in other contexts Lobo appears to engage in rational reconstruction of Searle on human rights as he attempts to elaborate on what Searle states about human rights while not quoting Searle to carefully demonstrate that Searle genuinely and unambiguously concurs with what Lobo attributes to him.

Rational reconstruction, as I understand it, is the activity of engaging but also going beyond what is written by an author to, say, answer alleged problems with the informational content of what is argued in a particular text. Analytic philosophers tend to engage in rational reconstruction more than they engage in historical reconstruction of texts, except in many cases in contemporary history of philosophy where contemporary analytic philosophers often attempt to engage in both. To be sure, there is nothing wrong per se with rational reconstruction, so long as one is careful to alert readers, and herself, that one is engaging in this project. Otherwise, one runs a serious risk of confusion in the form of making problematic allegations and misattributions.

Before noting some instances of problematic rational reconstruction, I shall expose some uncharitable readings of segments of Corlett (2016). One is found in Lobo (2017, 24) wherein my point about Searle’s view of human rights as “mere human creations” (Corlett 2016, 455) is taken to mean “more or less arbitrary product of sophistry and whim rather than reason as such.” However, a charitable interpretation of “mere human creations” would not pertain to either arbitrariness or sophistry, but to the fact that Searle offers a social constructivist view of human rights (which of course is my point). Nowhere do I state or even logically imply that Searle thinks that human rights are a matter of arbitrariness or sophistry. Another instance of uncharitable interpretation of what is found in Corlett (2016) is in Lobo (2017, 24) wherein I am aligned with the “idea that Searle is a pure institutionalist and anarchic social constructivist…”

As in the previous case of uncharitable interpretation, this misattribution to me is groundless. Just as the fact that something is a social construct does not make it arbitrary or sophistry, that something is institutional and a matter of social construction hardly makes it anarchical. Indeed, some anarchists tend to abhor social institutions! Moreover, there is logical slippage between my locution “would seem to imply” with regard to Searle’s view of human rights and “Searle does not argue this” (Lobo 2017, 24) as I do not state that Searle argues such. There is a difference between arguing a point and seeming to imply one. In order for my point to be rendered problematic, it must be demonstrated that in this case Searle does not seem to imply what I state he seems to imply. My point is not rendered problematic by showing that Searle does not argue what I stated that he merely seems to imply. Insofar as the trustworthiness of testimony is deemed vital to social epistemology and the possible acquisition of social knowledge, one seems justified in thinking that there is good reason to doubt the accuracy of Lobo’s interpretation, not only of Corlett (2016), but of Searle (2010). It is to these matters that I now my attention.

The previously noted violations of any plausible principle of charity in interpretation are followed by instances wherein rational reconstruction is mistaken for what Searle actually endorses in his published work on human rights. (Searle 2010) Consider the following statements making various attributions to Searle about human rights in response to my charge that Searle essentially socializes human rights relative to a particular society’s recognition of same:

But Searle too is seeking to enunciate more or less eternal human rights. His problem, to which he flatly admits, is that on the basis of his moral and theoretical reason, he can only firmly articulate two: the right to life and the right to freedom of expression. But although it seems evident to me that different times and places produce different understandings of what rights exist (of course, it is quite possible that advances in moral reason will finally elucidate a definitive set of rights sometime in the future), what is crucial for Searle is society’s’ attitude towards the potential bearers of those rights (Lobo 2017, 25).

It is clear that Searle endorses the two alleged human rights mentioned in this quotation: the right to life and the right to freedom of expression. But several problems arise here. First, no quotation in Searle is provided for the reasoning in the quoted words, as it is a case of rational reconstruction of Searle’s words. The reasoning goes beyond what Searle actually states. But again, one of my general claims is that for all Searle states about human rights, there are various problems with his view. It is not, as I state above, that Searle’s view of human rights cannot be rationally reconstructed to evade such difficulties. Additionally, the description of human rights as “eternal” is problematic. What does it mean to say that a right is eternal? I do not recall in the philosophy of rights literature where rights are referred to as “eternal,” though perhaps some religious theorists might tend to at times refer to certain human rights in such a manner. Some explanation is required to make some sense of this strange notion as, absent careful qualification, it seems out of place in philosophical discourse.

Perhaps what is meant by human rights being “eternal” is that, consonant with the human rights tradition in question, they exist and have always existed and will always exist despite human recognition of them. But I recall nowhere in Searle (2010) where Searle’s view of human rights comes close to this view of human rights as “eternal.” Nor does the notion of eternality seem to fit neatly within Searle’s social ontology of social construction. If I am correct about this point, then it appears that the above passage from Lobo (2017, 25) is a case of rational reconstruction and it behooves Lobo to demonstrate unambiguously in Searle (2010) where a conception of human rights as eternal is endorsed by Searle.

Furthermore, Searle’s discussion of the two alleged human rights noted above is itself problematic. Searle indeed endorses the two rights as human ones. (Searle 2010, 185) But he hardly defends or justifies such rights. If by his endorsement of such rights as human ones Searle means that they are absolute and non-conflictable rights, then Searle would be endorsing an implausible (or at least a rather controversial) claim insofar as it would imply the duty of others to respect such rights with regard to all humans. For there are humans both throughout history and today who have neither a moral (in the requisite sense) right to life nor to freedom of expression, namely, those who deserve capital punishment based on their strong liability responsibility for, say, the illicit deaths and maimings and torturing of others.

Unless Searle adopts and successfully defends an abolishionist approach to capital punishment, and unless he wishes to disrespect or ignore considerations of moral responsibility, desert and proportionate punishment, he would seem to want to endorse a view of human rights which does not appear to imply (absent careful qualification) that everyone has a right to life in the requisites sense (above) because they are human beings. For not everyone has such a right, morally speaking, according to many who take sufficiently seriously considerations of responsibility, proportionality, and desert. By extension, the alleged (“eternal”? or universal?) human right to freedom of expression fails insofar as the alleged (“eternal”? or universal?) human right to life fails. For if one (subsequent to adequate due process, of course) genuinely deserves execution because of their strong liability responsibility for the illicit murders, maimings, torturing, etc. of others, then one hardly has a right to freedom of expression in that they deserve to have their life ended.

Further Considerations

In general, human rights need to be articulated and plausibly defended in light of deeper moral, social, political and legal considerations so that they do not run afoul of them. This point applies to Searle as well as to others philosophizing about human rights, and rights more generally. Indeed, this point might even serve as a plausible desideratum of a theory of human rights as one would want and expect that, all relevant things considered, a conception of human rights ought to comport well with broader and underlying considerations along such lines.

It is also stated that “In a response to commentators on his 2010 book, Searle (2011) avers that a right can be considered legitimate ‘only if it can rationally be justified by a correct conception of human nature, a set of values about human beings, and can rationally impose an obligation on all human beings to respect it’ ” (Lobo 2017, 24). This is the closest published statement by Searle of which I am aware that on the surface appears to align his view of human rights with the conception of human rights as moral ones which I attribute to the contemporary dominant human rights tradition. However, the statement does not quite succeed in doing so. For according to the conception of human rights which I articulate but do not endorse in Corlett (2016) and herein, being rationally justified by a correct conception of human nature is not a jointly sufficient condition of a human right, though it might be relevant to the issue of human rights possession (i.e., of who qualifies in having a human right).

Moreover, that a rights claim can be rationally justified by “a” set of human values is not sufficient for something to be a human right. According to the human rights tradition, such a set of values must itself be morally valid (conferred by valid moral rules or principles) in the sense noted above. Thus, it must be both rational and reasonable, as Rawls might put it. That something is rationally justified can be a subjective or relative matter. But that it is also reasonable suggests that it is also plausible aside from its being rational in the sense of its being internally consistent (internally coherent). The epistemic concept of coherence comes to mind here. As noted above, that something is internally consistent is insufficient for its being justified. It must also be consistent with reality, externally speaking. It must match the real world of facts.[17] A similar point can be made of Searle’s claim that a right “can rationally impose an obligation on all human beings to respect it.” It must also do so reasonably, according to the dominant contemporary human rights tradition.[18] Yet for all Searle states therein, there is no requirement to the effect that a human right is a right that is conferred by valid moral or ethical rules or principles. So it is rather difficult to understand the assertion that “I see no substantive difference between this [Searle’s] analysis of the basic reasoned, moral ontology of human rights and that given by Corlett. Are not Corlett’s ‘moral rights’ more or less exactly the same as Searle’s rights, which must be based on ‘a correct conception of human nature’ and ‘a set of values about human beings’” (Lobo 2017, 24)?

Aside from the problematic locution “more or less exactly the same as” and the fact that I do not necessarily endorse the conception of human rights of the dominant tradition (so it is not “Corlett’s [conception of] ‘moral rights’”), I hope that I have sufficiently clarified the difference(s) between Searle’s notion of a human right and that which has been articulated by the dominant tradition of human rights. I know of no other way in which to articulate the difference(s). Perhaps more time and energy ought to be expended in attempting to justify Searle’s conception of human rights than in attempting to align it with the dominant human rights tradition. For it is obvious that Searle’s view of human rights is not in accord with said tradition. However, as I have stated repeatedly, this in itself does not suggest that the Searlean notion of human rights is implausible.

It seems, rather, that Searle is attempting to articulate his own such notion of human rights, and its plausibility, not unlike the plausibility of competing views of human rights, is contingent on how well it stands the test of reason. And if one of my (above) points is plausible, then it appears that Lobo, perhaps in an implicit acceptance of the traditional view of human rights as moral rights in the above-described requisite sense, is attempting through rational reconstruction of Searle’s view of human rights to make it consistent with the tradition’s view to the effect that “human rights have always existed. But all members of the human species have not always been recognized as humans entitled to those rights.” (Lobo 2017, 25).

While this point, not quoted from Searle himself, seems consistent with the contemporary human rights tradition as I have described it, it is still not the same as that tradition’s addition of the important idea that human rights are valid moral claims and/or interests humans possess regardless of both whether or not there is social recognition of some humans qua humans and whether or not such rights are recognized as such. So one question here is whether or not Searle holds the view attributed to him by Lobo (2017), and another is whether or not such a view comports sufficiently well with the human rights tradition in question and yet another is which view of human rights is more plausible, and why.

Moreover, there are other issues with regard to Searle’s view of human rights. In Corlett (2016, 458), I write that

For all Searle states about human rights, U.S. blacks, for instance, had no valid claims to equal opportunity in education prior to Brown v. Board of Education in 1954. For such a right did not exist, on Searle’s view, until and unless it is socially constructed or institutionalized (i.e. made legal). Yet this implicitly runs counter to the idea that such blacks already had the (moral) rights (valid moral claim) in question and that it was being denied them by law and society, a view grounded in the moral principle that blacks are fully human and deserve (ought to have) equally opportunities in education, among many other opportunities that others would have by moral right. Yet this latter idea was not supported by most whites in the U.S. until several of them were morally persuaded to concur with the spirit of the validity of the Brown decision. Among other things, the Brown decision represented a moral shift in the U.S. conception of legal rights to equality of opportunity in education. But it did not imply that all of a sudden blacks gained a right that they did not previously possess—except of course in a legal sense. Rather, it was a moral right that was finally recognized by law, one to which many would refer as a “human right.”

It is alleged that “Searle’s analysis entails nothing like this.” (Lobo 2016, 25) Yet the explanation of why Searle’s view of human rights does not entail what it seems to me it implies, and no quotations from Searle are produced to explain why “Searle’s analysis entails nothing like” what I state that it seems to imply—only interpretation by way of rational reconstruction of Searle’s view. Thus, claims that “Searle is not a strict institutionalist” (Lobo 2017, 25) and “Searle’s focus is fundamentally on recognition”[19] of the bearers of human rights, while possibly true, are difficult if not impossible to find in Searle (2010).

Which Questions Does Searle Wish to Answer?

Perhaps there is some confusion and possibly uncharitable reading of my above quoted point regarding the Brown decision. It is written of Searle’s “theory” of human rights and in implicitly alleged contrast to my take on the Brown decision that Searle’s “theory points to what is so momentous about Brown—not that the Supreme Court recognized the valid claim to equal education, but that, based on rationality, reason, morality, and so on, it recognized that Black Americans actually had rights—in this case the right to equality of opportunity in education” (Lobo 2017, 25).

However, the allegation that “Searle’s analysis entails nothing like” the manner in which I describe it in terms of what I take to be some of its implications is dubious in that, as it turns out, what is implicitly interpreted as my meaning is uncharitable, if not confused. My above-quoted point is clear about the issue of the Brown decision and how it involves the legal recognition of the right to equality of education for all persons in the U.S. But this implies that it was also about the recognition of the full humanity of all non-whites, inclusive of all blacks. For it is in the context of potential or actual rights-bearers that the recognition of the right to equality of opportunity in education is made. Thus the idea that my point about the Brown decision implicitly or otherwise ignores the “momentous” idea thatblacks actually had rights” makes no sense in light of both the background of U.S. law which already recognized some rights that blacks had, and the fact that it makes no sense for Corlett (2016) to construe the Brown decision as one about the Court’s recognition of the right to equality of education absent the Court’s additional recognition of the fact that blacks and other non-whites qualify as right-bearers in the relevant sense relative to the right in question. When this matter is considered, it is unclear that my point about what Searle’s view of human rights seems to imply is far from accurate in light of Searle’s own writings on human rights (namely, Searle 2010).

Furthermore, if it is true that Searle’s view of human rights and their recognition is that “what is so momentous about Brown—not that the Supreme Court recognized the valid claim to equal education, but that, based on rationality, reason, morality, and so on, it recognized that Black Americans actually had rights—in this case the right to equality of opportunity in education” (Lobo 2017, 25), then another problem arises as mentioned above. For the description of Searle’s view as one which makes human rights based on “morality” is one which distances Searle’s view significantly from what I am describing as the human rights tradition. For that tradition would want to distinguish between what valid moral or ethical principles or rules would confer as a moral right and what morality (or even moralities) would recognize as a right.

Thus, the point raised in order to attempt to clarify Searle’s view on human rights recognition serves to further deepen concern about an allegation that Searle’s view is not strictly institutionalist. To be sure, I have already provided an example of what Searle refers to as an “informal” right, one that is not necessarily supposed to involve the institutionalization of said right.  But whether or not that example is successful, it is unclear that Searle’s view of rights and their recognition comports well with the idea that it is not that human rights are conferred on humans (in part) because of what socially accepted “morality” or moralities say, but rather that the valid principles of ethics or morality confer such rights.

Moreover, another attempt is made to insist that Searle’s view of human rights is not what I think it seems to imply with regard to the Brown decision: “So the valid claims existed, the rights existed too, even before the Brown decision, and Corlett is mistaken when he says Searle theory denies their existence before the decision.” (Lobo 2017, 26) Again, I do not categorize Searle’s words on human rights as a theory (see the opening paragraph of this essay). But more importantly, no quotation from Searle (2010) is provided for the acceptance of the claim that “the valid claims existed, the rights existed too, even before the Brown decision…”

One is left to wonder whether what has occurred in the reading of my critique of Searle on human rights is that some have perhaps at a subconscious level found the critique so plausible that they have, in thinking that Searle could not have possibly made such unthinkable errors in his conceptualization of human rights, constructed (pun intended) reconstructions of “Searle’s theory” in order to make his view more compatible with what seems to them a more generally and intuitively plausible position on human rights, one which, seemingly accidentally, is somewhat congruent with some portion of the traditional view of human rights. Whether or not this has actually occurred is hard to discern and beyond additional interest on my part. But it is relevant to the point about rational reconstruction and careful explications of an author’s view.

For both critics and defenders of an author’s work owe it to themselves, the author, and others to carefully quote an author in constructing her position. I have not only attempted to do this, but the first several pages, the bulk of Corlett (2016), present Searle’s view of human rights so fairly that they painstakingly summarize in some detail Searle’s social ontology from his two books on the topic in order to provide a suitable conceptual context for a discussion of his view of human rights. For one to provide replies to my concerns is what a philosopher is expected to do. But in order to avoid unnecessary confusion one must be careful to distinguish (when relevant) between construction and rational reconstruction of an author’s position, especially if allegations are made concerning misrepresentation of an author’s view. Corlett (2016) concerns a careful, oft-quoting (of Searle) construction of his view. It is not intended to be a rational reconstruction of it. That much is obvious by a study of it.

Moreover, Searle’s basic point about status recognition with regard to the Brown decision is articulated. (Lobo 2017, 26) He writes: “The all too simplistic notion that ‘if you qualify as a human being, you are automatically guaranteed human rights’ (Searle 2010, 81), is, well, all too simplistic. For, indeed, you have to first qualify as a human being.” In reply to these points, it is important to bear in mind that, though it might be simplistic to think that “if you qualify as a human being, you are automatically guaranteed human rights” if for no other reason than history and contemporary times reveal that not all humans are guaranteed rights of any kind, it is unclear that “you have to first qualify as a human being” in order to have or be recognized as having a human right if what is meant by this unclear claim is that all of those who possess human rights must be human beings.

For as it turns out, many human rights theorists and activists hold that, for instance, various non-human animals have at least one of the very rights Searle himself categorizes as a human right: the right to life. Yet these animals are not human ones. So, if it is true that said animals have a right to life, and if it is true that the right to life is a human right and uniquely possessed by humans, then it is unclear that one must be a human in order to possess or be recognized as possessing that right which is said to be a human one. For one to insist that by definition only humans can have a right to life begs the question, many would argue, about what counts as a human right.

The right to life, according to many, is often possessed by humans who are unable to be conscious of their possession of it, yet many would argue that it would be unreasonable to deny them human rights possession status. And many would argue that the right to life extends to many non-human animals even though they might not be conscious (as most humans might be conscious) of their possessing such a right. The point here is that even if it is assumed that the right to life is a human right, it is not according to several people a right possessed exclusively by humans, rendering dubious the claim that “you have to first qualify as a human being” in order to either possess or be recognized as possessing a human right. At the very least, such a claim requires careful clarification. Are human rights possessed exclusively by humans, as the assertion in question appears to imply? Or are some human rights such as the right to life shared with non-humans, and if so, might it be important to clarify that being human is perhaps a sufficient but not a necessary condition for the possession of a human right? If the latter, then this clarification should be made and its implications should be recognized in terms of a robust social/political philosophy insofar as such rights are basic to a plausible social/political philosophy.

Much of this discussion of Searle’s view of human rights raises the question of precisely which questions he is attempting to answer. If Searle is answering the question of how human rights might be socially recognized, then he has offered an interesting account of such a phenomenon whether or not it is original. However, if he is attempting to provide answers to questions about the nature and value of human rights, then his account raises the kinds of problems enumerated herein and in Corlett (2016). Again, a serious study of the philosophy of human rights in particular and of rights more generally might have enabled Searle to clarify such matters and juxtapose his “theory” with those of others. But one is left with the unfortunate situation where, when taken at his word, Searle articulates his ideas in ways which are, as I have explained, isolated and divergent from the mainstream discourse on human rights. While this is not in itself a bad thing, it runs the risk of confusing important issues and concepts.

Finally, it is stated that Searle “insists that rights exist, and that they are grounded in moral reason, and thus his view is far from being incompatible, much less antithetical to that propounded by Corlett.” (Lobo 2017, 28) But as noted above, no quotation from Searle is provided which justifies the attribution to him of human rights being grounded in “moral reason.” But even if that information from Searle is provided, “moral reason” is vague when considered in the context of Searle’s view of human rights and his social ontology more generally. Would it mean, for Searle, the same as it means for the tradition of human rights that I have articulated? I am not aware of any concept from Searle’s social ontology that would justify such an ascription to Searle. Recall that “moral reason” can be construed, say, either relativistically to refer to social reasoning about morality rights, for instance, or in the manner in which so many human rights theorists understand it, as I describe above.

And pointing out that Searle states that “with regard to human rights he says, explicitly: ‘This does not mean that they are arbitrary, or that anything goes’[20] (2010, 198)” (Lobo 2017, 28) is a far cry from (and not logically entailed by) the statement that human rights are ethical or moral rights that are conferred on someone or a people by valid moral or ethical rules or principles. Searle’s statement here can be understood reasonably to mean that whatever society decides is a human right and who ought to possess it is a matter of moral reason by that society. However, this is not the same as stating that the nature and value of human rights is beyond whatever society recognizes as such; indeed, it is a matter of whatever valid moral or ethical rules or principles determine as such, and that this is, at least in principle, discoverable by way of human reason.

Whether or not Searle’s view of human rights can be reconstructed into the most plausible account is an open question. I am cautiously optimistic that it might be if Searle’s view is importantly amended at least along the lines most central to this investigation. But that project might eventuate in the abandoning of some aspects of Searle’s view of human rights which he himself deems most crucial to his social ontology. Or, it might turn out that either Searle or some of his disciples devotes sufficient time and energy to the study of the philosophy of rights and human rights such that it can be shown with significant precision that Searle’s view is the best one on offer, all relevant things considered.

Conclusion

In the end, Searle (2010) provides an interesting articulation of some social rights and how they come to be recognized by social institutions. However, his notion of human rights lacks critical ethical/moral components in the ways enumerated both in Corlett (2016) and herein. While Searle (2010) provides an interesting description of the social construction and recognition of social rights, it is unclear whether or not it is an accurate account of the social construction of human rights in that it is unclear that human rights are even social constructions as opposed to their being rights that are, quite apart from being socially constructed, conferred on persons by valid rules or principles of ethics or “true” morality as noted herein and in Corlett (2016).

And while it is the goal of human rights supporters to have a global recognition of human rights, it is not obvious that the possession of human rights is contingent on their being socially recognized. This may be true even though respect for human rights requires social recognition of them. In any case, there is far more to human rights, if they exist and if so, whatever they turn out to be in content, than what is found in Searle (2010). Perhaps the most plausible idea in Searle (2010) about human rights is how they can be socially recognized. Whether or not this is a notion original to Searle is one thing. It is quite another, however, to think that what Searle offers is anything close to a theory of human rights and one that is congruent with the dominant contemporary human rights tradition as I have described it.

This discussion of Searle’s view of human rights is relevant to social epistemology in at least the following ways. His view of human rights is an outgrowth of his social ontology. As far as I can discern, what Searle (2010) states about what he thinks are human rights is consistent with his social ontology. And insofar as social ontology and social epistemology are inter-related, not unlike metaphysics and epistemology, questions about Searle’s notion of human rights raise questions about how humans rights become real (assuming they are real). And this in turn raises questions about how we might come to know that they are real.

Finally, insofar as many social epistemologists deem testimony as an important element of social knowledge (Coady 1992; Goldman 1999; Lackey and Sosa 2006), I have relied on the testimony of many philosophers in the tradition of human rights and rights in general to compare and contrast that understanding of human rights with that of Searle’s. In the end, each position, whether one of these or another, must bear its own argumentative burden of proof against, for instance, the slings and arrows of anti-realists or skeptics about rights—especially human ones.

References

Altman, Andrew. “Legal Realism, Critical Legal Studies, and Dworkin.” Philosophy & Public Affairs 16 (1986): 205-235.

Coady, C. A. J. Testimony. Oxford: Oxford University Press, 1992.

Conklin, William E. The Invisible Origins of Legal Positivism. Dordrecht: Kluwer Academic Publishers, 2001.

Corlett, J. Angelo. Race, Rights, and Justice. Dordrecht: Springer. Law and Philosophy Library, Volume 85, 2009.

Corlett, J. Angelo. Heirs of Oppression. Lanham, MD: Rowman & Littlefield Publishers, 2010.

Corlett, J. Angelo. “Searle on Human Rights.” Social Epistemology 30, no. 4 (2016): 440-463.

Corlett, J. Angelo. (forthcoming). “Plural Subjects, Personal Autonomy, and Joint Commitment.”

Corlett, J. Angelo and Julia Lyons Strobel. “Raimo Tuomela’s Social Ontology.” Social Epistemology (2017): 1-15. doi: 10.1080/02691728.2017.1346724.

Dworkin, Ronald. “The Law of the Slavecatchers.” Times Literary Supplement 5 December, 1975.

Dworkin, Ronald. Taking Rights Seriously. Cambridge: Harvard University Press, 1978.

Dworkin, Ronald. Law’s Empire. Cambridge: Harvard University Press, 1986.

Dworkin, Ronald. Freedom’s Law. Cambridge: Harvard University Press, 1996.

Feinberg, Joel. Social Philosophy. Englewood Cliffs: Prentice-Hall, 1973.

Dworkin, Ronald.  Rights, Justice, and the Bounds of Liberty. Princeton: Princeton University Press, 1980.

Dworkin, Ronald. Freedom and Fulfillment. Princeton: Princeton University Press, 1992.

Dworkin, Ronald. Problems at the Roots of Law. Oxford: Oxford University Press, 2003.

Gilbert, Margaret. Joint Commitment. Oxford: Oxford University Press, 2014.

Goldman, Alvin I. Knowledge in a Social World. Oxford: Oxford University Press, 1999.

Greenawalt, Kent. Speech, Crime, & the Uses of Language. Oxford: Oxford University Press, 1989.

Lackey, Jennifer and Ernest Sosa, editors. The Epistemology of Testimony. Oxford: Oxford University Press, 2006.

Lehrer, Keith. Theory of Knowledge. Boulder: Westview Press, 2000.

List, Christian and Philip Pettit. Group Agency. Oxford: Oxford University Press, 2011.

Lobo, Gregory J. “Reason, Morality and Recognition: On Searle’s Theory of Human Rights,” Social Epistemology Review and Reply Collective 6, no 9: (2017): 22-28.

Nickel, James. Making Sense of Human Rights. Berkeley: University of California Press, 1987.

Rabban, David. Free Speech in its Forgotten Years. Cambridge: Cambridge University Press, 1999.

Rawls, John. A Theory of Justice. Cambridge: Harvard University Press, 1971.

Rawls, John. The Law of Peoples. Cambridge: Harvard University Press, 1999.

Searle, John. Making the social World. Oxford: Oxford University Press, 2009.

Tuomela, Raimo. Social Ontology. Oxford: Oxford University Press, 2013.

Wellman, Carl. A Theory of Rights. Totowa: Rowman & Littlefield Publishers, 1985.

Wellman, Carl. The Moral Dimensions of Human Rights. Oxford: Oxford University Press, 2011.

[1] I wish to thank Professor Jim Collier, Editor of Social Epistemology, for granting me this opportunity to further address some recent concerns raised about my critique of Searle’s view of human rights and Professor George Rainbolt for incisive discussion of the nature of rights.

[2] Further desiderata of a theory of human rights might be gleaned from what Carl Wellman construes as important components of a general theory of rights in Wellman (1985, 4).

[3] That is, problematic from at least the standpoint of what I am describing as the dominant human rights tradition.

[4] I take Searle (2010) to be Searle’s most mature and systematic thinking on human rights and his social ontology which serves as the basis of his view of human rights.

[5] Not unlike the tradition of just war theory, the contemporary human rights tradition is not all of one piece. There are differences between such theorists concerning various nuances of said traditions. However, I shall continue to refer to the “traditional” or “dominant” tradition of human rights insofar as many of those who would consider themselves in favor of human rights would have little difficulty accepting what I generally attribute to it. I write “many” in that, if the later Ludwig Wittgenstein is correct, what defines categories (such as “human rights tradition”) is not an essential property they share in common with one another as members of said tradition, but rather a set of overlapping and criss-crossing sincerely held propositions between members of the relevant category. I shall focus on some such propositions which I believe many positive human rights theorists seem to accept.

[6] In the interest of time as this is already a lengthy essay, I point out that the claim which is attributed to Searle as his “contribution” to human rights theory is already recognized in Corlett (2009, Chapter 5), though the general point in question is found in various other sources on the philosophy of human rights.

[7] Indeed, one of the reasons why then U.S. Supreme Court Chief Justice Warren encouraged a unanimous vote of the justices in this case was precisely because he knew that most of the citizenry of the U.S. was against school desegregation and that the Court needed to send a message to that citizenry about equality of educational opportunity. Brown v. Board of Education was preceded by other cases which challenged racial segregation in U.S. schools. One notable case was the Mendez v. Westminster School District case (1947) which represented a significant step forward to end segregation of mostly Mexican-American school children in California. Nonetheless, these cases demonstrate how various moral rights of non-whites in U.S. society were not recognized institutionally (legally), though through a series of legal cases the rights were recognized institutionally. As decades past, most of U.S. society gradually, it seems, accepted said right to equality of education regardless of color, etc. So the Brown decision is one wherein a moral right gradually became recognized by law and then by most of U.S. society.

[8] As pointed out in Corlett (2016, 460-461), Searle seems to endorse the strong correlativity thesis about rights and duties when he writes that “…all rights imply obligations” (Searle 2010, 177) (I assume here that Searle does not make a distinction between obligations and duties as has been made in some of the ethics literature during the past few decades.) On the other hand, Searle tempers his apparent endorsement of the strong correlativity thesis with his claim that “not all cases of rights” correlate with duties. (Searle 2010, 170)

[9] By this I mean something akin to “plural subjects” (Gilbert 2014; Corlett forthcoming), “we-mode groups” (Tuomela 2013; Corlett and Strobel 2017), or otherwise agental groups (List and Pettit 2011).

[10] Also see, for example, Dworkin (1996, 199f.); Feinberg (1992, Chapter 5); Greenawalt (1989) for philosophical accounts of the right to freedom of expression.

[11] In FCC v. Pacifica Foundation, the disputes were what constituted indecency and whether or not “indecent” expressions should be permitted over public airwaves wherein minors can access them.

[12] What I have in mind here is similar to Ronald Dworkin’s point about Justice Joseph Story with regard to Prigg v. Pennsylvania (1842) concerning captured runaway slaves and the Fugitive Slave Laws: Dworkin (1975).

[13] There is a rich literature in philosophy of law including discussions of legal positivism with regard to legal interpretation. One source with which one might begin one’s investigations therein might include Conklin (2001).

[14] By contrast, for many critical legal theorists (and many critical race theorists), legal decisions are often, if not always, results of decisions made on the basis of political power often divorced from decisions about the “right” things to do by the courts. (Altman 1986; Corlett 2009, 47-55, 60f.)

[15] I insert “ethically” here in that Thomas Aquinas was a natural law theorist who wrote of legal justification in terms of its underlying ethical base.

[16] One might bear in mind, however, that in the U.S. marriage is commonly referred to as an institution. I understand this to mean that marriage is both a social and legal institution, being both socially and legally recognized.

[17] I assume here and elsewhere a realist metaphysic as well as some plausible version of moral realism.

[18] In Lobo (2017: 24), “reasonable” is inserted as a parenthetical clarification of Searle’s “rational:” “When Searle asserts a belief that a justified human right can constitute a rational (reasonable) obligation on all human beings is he not echoing (but really, is not Corlett echoing Searle?) Corlett’s insistence that there are moral (human) rights above and beyond what particular societies recognize?” But comparing Lobo’s quotation of Searle and Lobo’s paraphrasing of it, Searle does not include “reasonable” in his statement. Hence my point about the difference between what is rational and what is reasonable with regard to human rights and the difference between Searle’s view of human rights and that endorsed by the human rights tradition as I understand it. That X is a human right based on its reasonableness (whatever that turns out to mean) is one thing. That X is merely rational is quite another. Almost any view about humans and such can be made to be rational in the sense of internal consistency. But not many views are both rational and reasonable, all relevant things considered. Searle endorses the rationality criterion of human rights. But it is by way of (albeit charitable) rational reconstruction that one is asked to read into Searle’s statement the criterion of reasonableness. It is of philosophical interest to know if Searle himself would unambiguously endorse such an interpretation of his view as it might be a step in the “right” philosophical direction (pun intended). In light of such considerations and other ones throughout this article, it is neither that Searle echoes Corlett’s articulation of the dominant human rights tradition nor that Corlett’s articulation of the dominant human rights tradition echoes Searle on human rights.

[19] If this point is true of Searle’s view of human rights, then it might point to a deeper problem in Searle’s view, namely, one which I have identified: Searle’s myopic focus on one of the social aspects of human rights (their social construction and recognition) to the exclusion of various factors about human rights according to the human rights tradition.

[20] If this quotation from Searle is intended to serve as a corrective to my take on Searle’s view, it is yet another unfortunate uncharitable misattribution to me about Searle’s work. For nothing in either Corlett (2016) or herein implies that I think that, for Searle, human rights are either arbitrary or that “anything goes.” Again, Corlett (2016) is more precise and circumspect than any such crass statements about the informational content of Searle (2010).

Author Information: Gregory J. Lobo, Universidad de Los Andes, Bogotá, Colombia, globo@uniandes.edu.co

Lobo, Gregory J. “Reason, Morality and Recognition: On Searle’s Theory of Human Rights.” Social Epistemology Review and Reply Collective 6, no. 9 (2017): 22-28.

The PDF of the article gives specific page numbers. Shortlink: http://wp.me/p1Bfg0-3IK

Please refer to:

Image credit: Jean-Marc Ferré, via flickr

J. Angelo Corlett (2016) has written an essentially negative assessment of John Searle’s (2010) theory of human rights. He faults Searle principally because “Searle construes human rights in purely institutional terms”, but also because, according to Corlett, “Searle does nothing to address, refute or render dubious the dominant ethical notion of human rights as being essentially non-insitutional (moral)” (2016, 461).[1] Finally, Corlett counters this understanding of Searle’s analysis of human rights by suggesting that “human rights contain a morally normative element, one which is non-institutional and is not and cannot be fully captured by Searle’s analysis” (2016, 461-62).

In this dialogue with Corlett’s piece I will draw on the same text on which he most relies to characterize, and criticize, Searle’s position: Chapter 8, “Human Rights”, from Searle’s 2010 book Making the Social World. I will be arguing that Corlett’s representation of Searle’s thinking on human rights is not accurate, and that, in fact, Searle’s position on human rights is actually very similar and perhaps even identical to the one Corlett appears to prefer. In other words, I will be hoping to demonstrate that Searle does not construe human rights in purely institutional terms; that Searle in fact argues for an ethical, non-institutional understanding of human rights—one quite in line with what Corlett calls the “dominant ethical notion of human rights”; and that, indeed, Searle argues that human rights demand an ethically normative foundation, on which his analysis built.

The Moral (and Institutional) Ontology of Human Rights

According to Corlett, “Searle’s conception of human rights is purely institutional, e.g. he believes that such rights are products only of social construction” (2016, 454, my emphasis). At a later point he refers to “Searle’s wholly institutional conception of human rights” (2016, 458, my emphasis). Now, it is true that Searle conceives of human rights as being the product of social construction, insofar as human beings articulate them using speech acts, using in particular what he calls the status function declaration. But it is not true that Searle thinks that human rights are purely or wholly institutional. In fact, Searle explicitly rejects the pure institutionalist vision of human rights. He unambiguously aligns himself with the position Corlett is defending when he compares real pure institutionalists, people like “Bentham and MacIntyre, who think of themselves as stating obvious commonsense facts when they say there are no such things as universal human rights, and most of the rest of us, who think there are indeed universal human rights” (2010, 182-3, my emphasis). Against, for example, Bentham’s “claim that any genuine right has to be backed by law” Searle argues that there are “lots of informal rights that one has that are not legally sanctioned” (2010, 192) or institutionalized.

When, then, Corlett insists that, pace (his reading of) Searle, human rights “exist quite apart from (whether or not they are recognized by) law and society” (2016, 456), it turns out that he is not arguing against Searle’s actual position. For Searle does not argue that human rights only exist when recognized by law and society; he clearly states that one of the things he wants to defend and explain in his chapter on human rights is the “claim that human rights continue to exist even when they are not recognized” (2010, 181). This seems to be Searle agreeing with Corlett. And he gives a simple example of what he means: the right of a spouse to be consulted on major decisions that will affect him or her, “is a perfectly valid right, even though there is no law that guarantees it” (2010, 192), Searle argues. He also believes that humans have a right to silence, which he believes exists, even though there is little institutional recognition of it (2010, 195). Thus, Searle’s position is not as Corlett represents it. Corlett, again, states that Searle’s positions entail that “human rights cannot be both institutional and moral (i.e. non-institutional)” (2016, 455), but as we have just seen, Searle allows for rights both institutionalized and not.

Still, according to Corlett, a real problem with Searle’s “notion of human rights is that it does not even address the reasons that leading philosophers of human rights have provided in favor of a non-institutional analysis of human rights”, where by non-institutional “is meant that such rights have essential moral properties” (2016, 454). But here is what Searle actually says in this regard: “I do not think you can have an intelligent discussion about human rights without discussing certain biological characteristics of human beings, and […]  what is valuable in human life” (2010, 192).

I read Searle to be saying here that pre-institutional factors—human nature, if you will—have to be taken into account when thinking about human rights, which suggests he is not the pure institutionalist nor the naïve social constructionist that Corlett maintains he is. But Searle is also insisting here on the need to talk about what is valuable in human life when thinking about human rights; that is, he is talking about a basic morality, only with regard to which human rights can be enunciated. Corlett’s criticism would seem to be misdirected, since the target of it seems to be in agreement with him. Indeed, the italics in the following sentence are Searle’s own:

the justification for human rights cannot be ethically neutral. It involves more than just a biological conception of what sorts of beings we are; it also involves a conception of what is valuable, actually or potentially, about our very existence (2010, 190).

Here, I think, Searle is making the very argument for moral reasoning in thinking about human rights that Corlett faults him for not even pondering.

Rights and Reason

Corlett then explores the possibility that “human rights might not be […] mere human creations […] but rather human discoveries by the light of reason” (2016, 455). We are to understand that he thinks that Searle thinks that they are “mere human creations”, the more or less arbitrary product of sophistry and whim rather than reason as such. As if arguing against Searle, Corlett makes the point that “[h]uman rights may be both institutional recognitions (social constructs) as well as discoverable by way of reason to be what are moral rights above and beyond what societies say they are” (2016, 455). But again, Searle does not disagree with this assertion: he is not in disagreement with Corlett on the role of reason in elucidating human rights.

In a response to commentators on his 2010 book, Searle (2011) avers that a right can be considered legitimate “only if it can rationally be justified by a correct conception of human nature, a set of values about human beings, and can rationally impose an obligation on all human beings to respect it” (2011, 740). I see no substantive difference between this analysis of the basic reasoned, moral ontology of human rights and that given by Corlett. Are not Corlett’s “moral rights” more or less exactly the same as Searle’s rights, which must be based on “a correct conception of human nature” and “a set of values about human beings”? When Searle asserts a belief that a justified human right can constitute a rational (reasonable) obligation on all human beings is he not echoing (but really, is not Corlett echoing Searle?) Corlett’s insistence that there are moral (human) rights above and beyond what particular societies recognize? If the answer to both these questions is affirmative, then Corlett is disagreeing with someone who actually agrees with him.

In keeping with the idea that Searle is a pure institutionalist and anarchic social constructionist, Corlett also reads Searle as saying that “human rights are epistemically subjective” (2016, 454); however, what Searle says about this is not that human rights are epistemically subjective, but that “arguments” about human nature and morality, while essential to a discussion of human rights, “are not demonstrative, in the sense that any rational person is bound to accept them on pain of irrationality” (2010, 192). Such arguments—but not the rights themselves—thus are condemned “to have an element of epistemic subjectivity” (2010, 192). But given the fact of epistemic subjectivity, Searle insists (and contrary to the view that Corlett seems to impute to him), “it does not follow that they are arbitrary or beyond the scope of argument” (2010, 192). While Corlett goes so far as to invoke the specter of a white supremacist society justified by “Searlean madness” (2016, 456), which can only be stopped by a conception of human rights as reasoned moral rights, I think I have quoted enough from Searle to prove that his theory does not lack an understanding of human rights as essentially reasoned moral rights, quite in agreement with Corlett.

Recognition

According to Corlett’s reading, Searle’s theory of human rights “would seem to imply that social recognition is […] necessary for X to be a human right” (2016, 457). Searle does not argue this. He allows that some people (his foils are people he characterizes as pure institutionalists like Bentham and MacIntyre) can make a convincing argument that this is the case (2010, 183), but Searle himself partakes of the “commonsense assumption that you do not lose your rights in cases where they are denied or not recognized” (2010, 183). Rights exist as rights even if they are not recognized, and indeed, as Searle more pointedly puts it: “you are [not] entitled to the existence of rights, but rather, you are entitled to the recognition of rights that already exist” (2010, 183, my emphasis). The issue is not social recognition of the right, but social recognition of the right of the person in question to enjoy the right.

We can understand more clearly the difference if we follow Corlett’s take on Searle. According to Corlett, contrary to “Searle’s purely institutional conception of a human right [which] makes room for the idea that a human right may change as society’s attitude toward that right may change, the moral conception of a human right holds that such rights do not change” (2016, 457). But Searle too is seeking to enunciate more or less eternal human rights. His problem, to which he flatly admits, is that on the basis of his moral and theoretical reason, he can only firmly articulate two: the right to life and the right to freedom of expression. But although it seems evident to me that different times and places produce different understandings of what rights exist (of course, it is quite possible that advances in moral reason will finally elucidate a definitive set of rights sometime in the future), what is crucial for Searle is society’s attitude towards the potential bearers of those rights.

The history is clear: at different times and places peasants, workers, criminals, women, victims of imperialism, gay people, trans people, but also the bourgeoisie, the royalty, and so on, have all been deprived of being recognized as humans, that is, as bearers of human rights, of being entitled to their rights. One might put it this way: one can say that human rights have always existed. But all members of the human species have not always been recognized as humans entitled to those rights.

An Example: On Being American, On Being Human

In order to drive home his point about the problems of Searle’s theory—problems which, I have been trying to show, do not actually exist, Corlett turns to the example of Brown v. Board of Education of 1954. According to “Searle’s wholly institutional conception of human rights”, as Corlett again characterizes it, Black Americans “had no valid claims to equal opportunity in education prior to Brown v. Board of Education in 1954” (2016, 458). As we should now be able to appreciate, Searle’s analysis entails nothing like this. Searle in fact would agree that U.S. blacks had valid claims—but he would ask, was their right to have such claims recognized? Not recognized as fully-fledged humans and/or Americans, did the dominant social perspective even recognize them as being able to have valid claims? Many people tried to ignore their claims; many could not conceive of black people even having claims. Searle would make much of this, no doubt. But he would not and does not argue that their claims were invalid or non-existent because institutions did not recognize the claims.

Searle is not a strict institutionalist, but he is fundamentally concerned with the role of symbolic operations in realizing the social world, that is, in causing it to be, to happen, which means that Searle’s focus is fundamentally on recognition. Thus, his theory points to what is so momentous about Brown—not that the Supreme Court recognized the valid claim to equal education, but that, based on rationality, reason, morality, and so on, it recognized that Black Americans actually had rights—in this case the right to equality of opportunity in education. That is, they were recognized as beings, citizens, Americans, having the right to have rights.

Nonetheless, certain very influential sectors in the states of Arkansas, Alabama, Tennessee, and elsewhere of course, did not recognize the Court’s recognition of the right of Black Americans to have rights—and here of course the emphasis (not exclusive by any means) on institutionalism remains incredible important. So the valid claims existed, the rights existed too, even before the Brown decision, and Corlett is mistaken when he says Searle’s theory denies their existence before the decision. But on top of this error, he entirely misses the point that Searle’s theory actually illuminates: what Brown did, or tried to do (and might still be trying to do in an America still plagued by racial inequality), was recognize Black Americans as Americans, entitled to all the already existing rights that other Americans enjoyed.

To be clear: for Corlett, the Brown decision “did not imply that all of a sudden blacks gained a right that they did not previously possess” (2016, 458)—and Searle would agree. But he would not agree with Corlett that the Brown decision meant that a “moral right was finally recognized by law” (2016, 458). Rather, Searle’s position would be that Brown institutionalized (attempted to institutionalize, in the face of opposition from other institutions particularly at the state and local levels) the recognition that Black Americans were in fact fully-fledged Americans and thus entitled to the right to equal opportunity in education (had the right to that right).

And just as being an American is a status, so “we must treat [in analytical terms] being human as a status”, Searle insists (2010, 181). For many people, this will not do. What I mean to say is, while most of us want to say that being human is not a status, not an existential condition, but an essential and self-evident fact, often times, in societies even today, certain people hardly enjoy the status of being human at all—at least from the perspective of certain other people and/or institutions. Thus, a person who kills a cop becomes a cop killer and is thought of as something less than human.

In wars, including civil wars between, as they say, brothers, the enemy becomes something other than and generally less than human. For certain Islamists, and in some Islamic States, Jews and infidels are not human. Some men often do not seem to treat some women as humans, and to be fair, vice versa. The so-called counter-revolutionary dissident is not human, but an enemy of the people. The bourgeois is a parasite, a leech. And so on. The all too simplistic notion that “if you qualify as a human being, you are automatically guaranteed human rights” (Searle, 2010, 181), is, well, all too simplistic. For, indeed, you have to first qualify as a human being.

Searle clarifies this when he explores the case “in which something satisfies the X term [i.e. it is an instance of the species homo sapiens] but is denied the recognition that goes with the Y term [i.e. it is not seen as a symbolic human being, but is seen rather as something other and less than human] and correspondingly denied the functions [the rights] that go with the Y status” (2010, 181). The rights exist, but an instance of the human species might well be denied those rights because he or she or it is not recognized as a member of the human community (the old sense of the outlaw, of being beyond the protection of law is relevant here), and thus is not understood to have a claim on, or a right to, those rights. It may be biologically human, but it is not symbolically human. This is the basic logic behind the reasoning of all those who are accused of violating human rights.

Searle purports to “share the commonsense assumption that you do not lose your rights in cases where they are denied or not recognized” (2010, 183).  But he also says that to be human does not mean that “you are entitled to the existence of the rights”. Contra Bentham and MacIntyre (and Corlett’s representation of Searle’s thinking), the rights exist. What being human means, or counting as human means, or should mean, is that “you are entitled to the recognition of rights that already exist” (2010, 183, my emphasis). To be human means, or should mean, that you have a right to human rights. The argument then, for Searle, is not that rights do not exist if they are not institutionalized, for he seems to be saying: they do exist. They question is: is the claimant recognized as having the right status and thus having the right to have the rights? What this then means is: “the justification of any rights that are assigned to [or claimed by] beings solely in virtue of being human will have to depend on our conception of what a human being is” (2010, 192).

Some people still don’t see political enemies, or women, or minorities, or gay people, or foreigners, or immigrants, or fetuses, or persons in vegetative states, or criminals, as human beings, and thus do not feel that they are entitled to human rights, or at least certain human rights. Perhaps a pithy way to grasp the importance of Searle’s notion that being human is a status (which, if recognized, entails the right to have rights) is to remember that animal rights activists want everyone to understand that animals, in fact, are humans too.

Conclusion

Corlett seems to be at loggerheads with Searle because he, Corlett, asserts or argues for the non-institutional existence of rights grounded in moral reason, and claims that Searle argues against such rights. I hope to have shown that Searle does not do this, and, to the contrary, seems to be on Corlett’s side. For Searle argues too that rights exist, that their existence can be deduced or constructed or discovered by reasonable, rational, ethical, perhaps disinterested (that is to say, impartial, neutral), members of our species—but he insists that their existence, which is not in question, does not entail the practical recognition that every biological member of the species is entitled to the right. Because in addition to the reasonable, rational, ethical people who are given to discovering or constructing, and feeling themselves bound by, human rights, there are many people who are less ethical or perhaps differently ethical, who are quite partial and very far from being disinterested, and who thus are not given to recognizing either certain people—minorities, gays, women, differently abled, Jews, poor people (the list unfortunately is quite endless)—as really human and thus automatic bearers of human rights, or the rights as rights per se.

One must recall that the point of departure for both of Searle’s book length investigations into social construction and institutionalization are what he calls the basic, non-constructed, ontologically given “brute” facts. Despite being a social constructionist, he believes that “we should at every point try to consider the biological basis of what we are discussing” (2010, 192), which leads to his “completely naturalistic conception of human life and society [which] is consistent with a belief in the existence of universal human rights” (2010, 198).

In his conclusion to his chapter on human rights, Searle reaffirms that his view of things is “consistent with a belief in the existence of universal human rights” while insisting that debates on “human rights […] cannot be ethically neutral” and in fact “require […] a certain set of values” (2010, 198). With regard to human rights he says, explicitly: “This does not mean that they are arbitrary, or that anything goes” (2010, 198). He insists that rights exist, and that they be grounded in moral reason, and thus his view is far from being incompatible, much less antithetical to that propounded by Corlett. Additionally, however, he makes a contribution to the philosophy of human rights whose importance, I think, is hard to exaggerate, when he points out that what is crucial is that their potential bearers be recognized as actual bearers, that each and every member of the human species must be recognized as a fully-fledged member of the human community and thus as entitled to the rights that accrue, automatically and inalienably, to each and every member of said community.

References

Armstrong, Josh. “Vision Science”. Los Angeles Review Review of Books. (2015). https://lareviewofbooks.org/article/vision-science/ Accessed: 1 August 2017.

Becker, Howard. “Book Review: John R. Searle Making the Social World: The Structure of Human Civilization. Oxford: Oxford University Press, 2010.” Science, Technology & Human Values 36, no. 2 (2011): 273-279.

Berger, Peter & Luckmann, Thomas. The Construction of Reality. A Treatise in the Sociology of Knowledge. New York: Random House, 1966.

Corlett, J. Angelo. “Searle on Human Rights.” Social Epistemology 30, no. 4 (2016): 440-463.

Searle, John R. The Construction of Social Reality. New York: Free Press, 1995.

Searle, John R. Making the Social World: The Structure of Human Civilization. Oxford: Oxford University Press, 2010.

Searle, John R. “Replies.” Analysis 71, no. 4 (2011): 733-741.

[1] Apart from any logical criticisms of Searle’s theory, what equally seems to motivate Corlett’s negative assessment of Searle’s theory of human rights is to be found in the third endnote to his article, where he writes that “the aim of this article […] is to expose Searle’s total lack of even recognizing a human rights tradition that speaks loudly against his own analysis” (2016, 472). Corlett is not the first to take issue with Searle’s blasé indifference to the work of others. Becker (2011)  complains of his failure to “show any great engagemente or familiarity with the work social scientists do” (2011, 274), while Armstrong, who declares himself a “sympathetic” reader, nonetheless notes that Searle “fails to engage” with ideas that conflict with his own, and tends to ignore the works of philosophers—especially women—that “bear directly on the themes” he discussess (2017). As Armstrong suggests, Searle often writes as if the only important philosophical voice is that of “Searle and Searle alone”. And indeed, I myself was taken aback by Searle’s total failure to mention even once the Berger and Luckman classic The Social Construction of Reality (1966) in his book The Construction of Social Reality (1995). None of this, however, is central to the present discussion.

Author Information: Robert D’Amico, University of Florida, rdamico@ufl.edu

D’Amico, Robert. “Arguments Concerning Ethical Realism and Rights: A Further Reply to Corlett.” Social Epistemology Review and Reply Collective 5, no. 6 (2016): 50-51.

The PDF of the article gives specific page numbers. Shortlink: http://wp.me/p1Bfg0-34j

Please refer to:

links_for_human_rights

Image credit: William Murphy, via flickr

In my “Reply to Corlett’s ‘Searle on Human Rights’” I said I was “perplexed” by his central criticism of Searle. Then concerning a specific point of his criticism of Searle I wrote that either “I didn’t understand this point” or “it was not fully explained in the article.” Furthermore I said that his reading of Searle was “uncharitable.” I consider these expressions polite if not even mild ways of stating disagreements. Disagreement is after all the life of philosophy, but of course one should not then be disagreeable.  Continue Reading…

Author Information: J. Angelo Corlett, San Diego State University, acorlett@mail.sdsu.edu

Corlett, J. Angelo. “On Searle on Human Rights, Again!” Social Epistemology Review and Reply Collective 5, no. 5 (2016): 41-46.

The PDF of the article gives specific page numbers. Shortlink: http://wp.me/p1Bfg0-307

Please refer to:

human_rights_council

Image credit: UN Geneva, via flickr

With regard to my article “Searle on Human Rights” (Corlett 2016), I have been accused of “misunderstanding” John Searle’s conception of human rights due to an “uncharitable” interpretation of Searle’s view as it is articulated in Searle (2010, chapter 8). Furthermore, it is found “puzzling” (even “perplexing”) why the set of concerns were raised therein pertinent to Searle’s view of human rights (D’Amico 2016). But this criticism, ironically, uncharitably misattributes to me an absurdly false position, one that I implicitly rejected in Corlett (2016) and have elsewhere explicitly rejected, and for good reason.  Continue Reading…

Author Information: Robert D’Amico, University of Florida, rdamico@ufl.edu

D’Amico, Robert. “Reply to Corlett’s ‘Searle on Human Rights.’” Social Epistemology Review and Reply Collective 5, no. 5 (2016): 30-36.

The PDF of the article gives specific page numbers. Shortlink: http://wp.me/p1Bfg0-2XI

Please refer to:

way_of_human_rights

Image credit: fotogake, via flickr

J. Angelo Corlett in “Searle on Human Rights”[1] outlines a summary of Searle’s work on social theory so as to then mount a criticism of Searle’s lecture “Human Rights.”[2] I find Corlett’s criticism of Searle quite perplexing and based on an uncharitable reading of what Searle states as his view. The aims of my reply are as follows. First, I provide a very brief account of what Searle means when he describes his ontology as naturalistic and thus what ethical naturalism must come to for Searle. Second, I explain why Corlett’s criticism is perplexing in view of Corlett’s own discussion of Searle. I suggest how to reformulate Corlett’s point by looking more closely at a passage from Searle’s lecture that does address at least a version of Corlett’s objection. Finally, I conclude that though Searle’s defense of human rights does raise some problems for his sketch of ethical naturalism, that problem has two possible responses. Either the concept of human rights is otiose or ethical naturalism fails. I am not sure that this choice captures Corlett’s intent, but it is the only plausible reading of his criticism in my view.[3]  Continue Reading…

Author Information: Richard W. Moodey, Gannon University, moodey001@gannon.edu

Moodey, Richard W. “Models of Face-to-Face Interaction and the Epistemic Significance of Other Minds.” Social Epistemology Review and Reply Collective 3, no. 7 (2014): 19-28.

The PDF of the article gives specific page numbers. Shortlink: http://wp.me/p1Bfg0-1wo

Please refer to:

Steve Fuller attacked ‘analytic social epistemology’ in 2012, and in 2013 Sanford Goldberg counter-attacked. Goldberg also prescribes a way of moving beyond the kind of conflicts exemplified by his exchange with Fuller. He says that social epistemologists should study the epistemic significance of other minds. I argue that constructing models of face-to-face interaction, specifically, models of cooperation, competition, and conflict, can be useful in implementing Goldberg’s prescription. Such models can help generate the propositions that must be the result of systematic study of a topic. I modify Goldberg’s image of epistemic communities as a result of including competition and conflict, as well as cooperation among the members.

Continue Reading…