VIII. THE GROUND OF HUMAN RIGHTS

rT1HE concept of human rights has played a pro * minent role in both moral and political thought ever since the seventeenth century. Yet, strangely, during this period the ground of human rights has been obscured. It is not simply that moral language in general has become suspect under modern epistemological assumptions, for some of the more convincing efforts at inter? preting moral discourse have had special problems with rights-talk. It is a thesis of this paper that these difficulties arise from an impoverishment of the concept of a person in modern thought, and that no adequate ground for human rights can be found without a full-fledged humanistic understanding of what it is to be a human being. Utilitarians, in search of a moral theory that would be compatible with empiricism, had to re? ject the idea that rights are grounded in human nature. Bentham declared that the doctrine of natural and imprescriptible rights was "rhetorical nonsense."1 The best utilitarians can do, it seems, is to interpret human rights as freedoms and other goods that all individuals in a society must have (or should be guaranteed) in order to maximize the total happiness. It is obvious that, on this account, human rights are variable; but, what is more distressing, there is nothing in the theory to assure that the total happiness of the group could not be maximized by the sacrifice of some for others, with no minimum freedom or other goods for all. This nullifies the whole idea. Human rights, if they obtain at all, it would seem, must be part of the framework within which utility is calculated, and, therefore, logically prior to and not ground? ed in it. If this is so, and if there are human rights, utilitarianism cannot be a complete moral theory. John Rawls has offered, as a challenge to utilitarianism, a modified Kantian theory from within a general naturalistic perspective.2 He speaks of rights and duties, not as discovered, but as assigned by the institutions of society in accor? dance with principles for the allocation of social benefits and burdens that would be adopted by ra? tional, self-interested people blinded to the par? ticularities of their existence. Even if we interpret this to mean that people may claim the rights that would be assigned to them in a just society (regardless of the rights actually assigned to them in their own societies), rights are not regarded as inherent in persons as such but as dependent on some form of social assignment. The society, not the individual, is the source of rights. Even if we look to the principles of justice, not the social assignment, as the ground of rights, these are, ac? cording to Rawls, principles of social organization grounded in a kind of ideal social contract ?prin? ciples that would be accepted by all in the absence of knowledge of the personal circumstances of each. The Rawlsian theory is, I think, more adequate than the utilitarian, for it interprets rights as part of the framework within which we calculate utilities. Nevertheless, it fails to capture the insight that there are basic rights inherent in personhood that are prior to and govern any social contracts into which persons could conceivably enter, in? cluding the Rawlsian theoretical contract in the original position under the veil of ignorance. A theory that interpreted basic human rights as part of the framework for the making of contracts as well as for the calculation of utilities, assuming that it was otherwise acceptable, would be more adequate. This leads to the question whether there are