Study Questions for Human Rights: Concept and Context by Brian Orend
Study questions composed by Dr. Jan Garrett
Copyright © by Dr. Jan Garrett
Last revision: January 10, 2003
Chapter 1 1. What is a right-holder? Why is the idea that all human beings are rights-holders bold and substantive? (page 15)
2. How is universality and equality inherent in the human rights idea? What do human rights violators typically do? (16)
3. What is it to "have a right"? A right is ______________ (17)
4. What sorts of questions should be answered in justifying rights? (17)
5. Why does Orend reject the account of rights as properties? (18-19)
6. What does it mean to say that rights are trumps? Is this view "absolutist"? (What would absolutism about rights be?) (20)
7. Distinguish between Hohfeld's concepts of rights as:
(a) claims (21)
(b) liberties (21-22)
(c) powers (22)
(d) immunities (22)8. Which of these four is central? How are these meanings related? (23)
9. Does having a claim right exist only if one utters a claim? How are rights understood at mid page 24?
10. Distinguish legal rights from moral rights; social moralities from critical moralities (24-25).
11. What two differences between legal rights and moral rights does Orend note? (25-26)
12. Why does Orend say "human rights exist first and foremost as rights in critical and social moralities"? (27-28)
13. Distinguish general from special rights. (28)
14. What is the different between a right and the object of the right? (28-29)
15. What points is Orend making about abstract and concrete objects of rights? (29-30)
16. What encompassing description for objects of our rights claims does Orend offer? (30)
17. Distinguish between so-called first generation rights and so-called second generation rights. Why do some deny that this is a distinction in kind? (31)
18. Distinguish between so-called negative rights and so-called positive rights. Does this distinction line up with the distinction between first and second generation rights? Explain. (31-32)
19. When is a human right violated? What, from a moral perspective, may happen to a person who violates human rights? (33)
20. What is it for a social institution to violate human rights? How does Orend distinguish between intentional and non-intentional failure on the part of institutions? What general differences of approach to such institutions does he recommend? (33)
Chapter 2 1. What classes of beings are possible counter-examples to the idea of universal, equal human rights? (37-38)?
2. What allegedly sober conclusion suggested by Orend would have an unfortunate consequence? What would that consequence be? (39)
3. What does it mean to say that X is a necessary condition for Y? that X is a sufficient condition for Y? What does it mean to say that a set of conditions S provides jointly necessary and sufficient conditions for Y? (40)
4. What is the main strength of the view that having human rights is rooted in human biology? (41-42) How does Orend respond to Singer's view that limiting human rights to human beings is an arbitrary preference in favor of our own kind? (42)
5. What is the main weakness of the biological humanity perspective? (42-43) Relate to the problem of forfeiture and the question of whether having a right is like having a property or attribute.
6. Is "humane" a factual or a moral description? (Why is this distinction important?)
7. What is the idea of metaphysical humanity? What feature of metaphysical claims makes them incapable of grounding a critical morality? Why does Orend say that metaphysical appeals are double-edged swords? (44-45)
8. What aspect of rationality is centrally involved in rational agency (and what aspect is less central)? In what two basic ways does reason apply to action? (46)
9. What two conditions, according to Alan Gewirth, are necessary to be capable of purposive action? (What do these two words mean?) How does Gewirth argue that we are entitled to these things? (47)
10. How does Gewirth defend the universality of such entitlement? (48)
11. What weaknesses of the rational agency perspective does Orend note? (48-49)
12. What are the strengths of the view that capacity for pleasure and pain is the basis for having human rights? (50) What special cases and considerations call this explanation of having human rights into question? Explain Orend's statement that "the variability of emotions would seem to imply the variability of rights" (50-52). Note that "variability of rights" is not his view.
13. What is meant by sympathy (in David Hume's sense) or empathy? (53)
14. What view regarding sufficient conditions for being a right-holder does Orend consider? (53)
15. Why does he conclude that emotional responsiveness is neither necessary or sufficient for being a right-holder? (53-54)
16. Consider the claim that only those capable of fully functioning as participants in the social contract are full-fledged human rights holders. What sorts of humans are excluded? What strengths does this view have? What problem regarding babies does Orend note? (55)
17. How does J. Narveson justify our duty not to harm babies? What problem with this justification does Orend raise? (56)
18. What does Orend's view ("superior view") seem to be about what beings are properly seen as rights-holders (as of p. 57)?
19. Explain Orend's point that "having the same human rights is compatible with having slightly different sets of objects," for example, physical security with respect to babies and adults. (58)
20. How does the view (attributed controversially to Aristotle) that only good persons are entitled to human rights gain some plausibility? (59)
21. What is the defensible core of the idea of forfeiture? (59-60)
22. Does punishment involving forfeiture really violate the universality and equality so central to the human rights tradition? Explain. (60-61)
23. What element inspired by the moral goodness perspective does Orend wish to retain? (61)
24. How does the rights-as-reasons perspective fit with Orend's account of forfeiture of [some] rights by offenders? (61-62)
25. What condition must be added to biological humanity and non-violation of other's human rights to provide sufficient conditions for being a human rights holder? (62)
26. Distinguish having an interest in something from taking an interest in something. (Do some people fail to take an interest in what they have an interest in? Do they sometimes take an interest in what they do not have vital interests in?)
27. What three conditions must hold for someone to have a vital need for X, according to David Wiggins? (63-64)
28. What five "abstractly defined objects" meet Wiggins' criteria, according to Orend? (64)
29. What three characteristics must one have to hold human rights, according to Orend? (65)
Chapter 3
1. Upon what must a good justification rest? What do these usually involve? (69)
2. What does Orend mean by "pluralism in justification"? How does he justify this approach? (69-70)
3. What is Richard Rorty's view on the justification of human rights? (70-71) How does Orend respond to Rorty's view? (71-72) In what way is Rorty inconsistent, according to Orend? (73)
4. What is legal positivism? Why does it fail as a justification of human rights? (74-75)
5. What sort of argument for human rights can be constructed on the basis of Walzer's notion of a thin social morality? (Distinguish between thick social morality and a thin one.) (75-77) Does everyone follow the prescriptions of "thin" morality? (78) What are the strengths of Walzer's view? (78) Why does Orend find Walzer's justification not completely satisfactory? (79)
6. State the prudential argument for one's own human rights. (79-80) State Gauthier's prudential argument for respecting other persons' human rights. (81) What criticisms of these arguments does Nickel present? (80, 81-82) Why does the prudential argument have "much to commend it"? (82)
7. How does John Rawls' derive a moral commitment to human rights? (82-85) Orend's account here is based upon Rawls' early work, A Theory of Justice (1971).
Most of what Orend attributes to Rawls here carries over to Rawls' later thinking about justice within nation-states such as the U.S. or Canada. (A question we'll eventually have to face is whether this approach is applicable between states or between individuals who are not citizens of the same state.)8. What is the dignity argument for human rights? Why does Orend find it unsatisfactory? (87-89)
9. State the gist of the consequentialist argument for human rights? (89-90) What is one common worry about consequentialist justifications often expressed by critics of consequentialism? (90) What other problems with consequentialist justifications does Orend mention? (91)
10. State the gist of H. L. A. Hart's argument for the existence of a general right to liberty. (91-92) What is Henry Shue's version of Hart's argument? (93-94)
11. Distinguish a thick vision of the good life and a thin vision of the good life. To which do human rights primarily relate? (95)
12. Is it obvious that every human being has a right to what he or she vitally needs? (Consider the example of Thomson's violinist discussed on p. 96) What, therefore, is the proper description of what we have human rights to? What proviso does Orend add to the duty to provide persons with what they vitally need? (96)
13. What, according to Orend, is the ultimate principle on which the reasoning for human rights rests? Does this entail any positive duties toward other persons? What does it mean to respect the human rights of others? What kind of harm is "grievous"? (97)
Chapter 4 1. How does the First Amendment (in the U.S. Bill of Rights) compare with the English Bill of Rights on rights of liberty? (102,104) How are first amendment freedoms related to religion and to the "pursuit of happiness" mentioned in the Declaration of Independence?
2. What is the distinctive contribution to human rights history of the French Declaration of the Rights of Man and Citizen? (106)
3. In the Universal Declaration of the United Nations, what objects of alleged rights are the most controversial? How is the Declaration a "resounding endorsement of human equality . . . ."? (108) Does the Declaration protect personal security? Freedom and liberty? (107, 108) What are the objects of rights covered by articles 6, 15, 20, 21, and 27? (109)
4. What is meant by "human rights inflation"? (110) What sort of rights are considered "third generation" rights? (110) How do thinkers like Robert Nozick respond to this "inflation"? Where, according to them, did the human rights movement start to go wrong? (110)
5. How do general defenders of the Universal Declaration like Henry Shue defend the principle behind socio-economic and cultural rights? (111)
6. What is the basic idea of the choice-based perspective on the objects of human rights? (112) How do choice-based theorists defend the inclusion of a right to own private property? (112-13) How does equality figure in the choice-based approach? (113)
7. How do the choice theorists use the issue of costs of human rights objects to defend their perspective? (114)
8. What is the main idea of the benefit perspective on the objects of human rights? (114) How do benefit theorists challenge choice theorists' tendency to rely on the right to private property? (115) Do benefit theorists generally advocate direct provision of clothes, food, water, etc. to people? Explain. (115)
9. What general case can be made for including health care and education among the objects of human rights? (116)
10. How does Orend distinguish between first-level and second-level specification of human rights objects? What objects does he list at the first-level? Where does he look to find a (rough) list of second-level objects? (117-18)
11. Where does the "real dispute" seem to lie between choice theorists and benefit theorists? (120) Why is the recoil of choice theorists at [fill in the blank after you answer the previous question] a mistake at the first level? (120-21) What are most of the differences between various human rights documents about? (122)
12. What is the valuable point contained in the "generations" metaphor? What would be a mistaken interpretation of the "generations" metaphor? (122)
13. What are some reasonable limitations on claims for objects of second-level human rights? (123) What must someone proposing a new second-level object of human rights show? (124) Would it be a worthwhile endeavor to try to discover a completely satisfactory never-to-be-improved-upon list of human rights objects? Explain. (125-26)
Chapter 5 1. What common answer to the question "who bears the duties" [corresponding to human rights claims] does Orend mention on p. 129?
2. What alternative answer does Thomas Pogge supply, and how does he try to justify this answer? (130)
3. What sort of institutions does Pogge have in mind? (130-32)
4. What additional justification does Pogge give for his theory? (132-33)
5. What reasons does Orend give for not unconditionally accepting the institutional account? (133-34)
6. What two kinds of individuals bear responsibility in connection with human rights? (134-35) What kind of human rights duties fall to individuals who are not government officials? (135)
7. What does Orend mean by the "integrative account" of who bears the duties, etc.? (136)
8. Some argue that we have human rights obligations only to our co-nationals. What is the relative self-enclosure thesis and why has the strength of the argument based on this thesis diminished in recent decades? What is the relevance of the use of armed force to this issue? (136-37)
9. What is the second reason the "nationalist view" fails, according to Orend? (137-38)
10. What "general principle"does Orend propose to guide us in this matter of local vs. international obligations? (139)
11. Review the meaning of positive duties, negative duties, positive rights, negative rights. (140)
12. In Shue's view, what three duties correspond to any single human right, including so-called negative rights such as the right not to be murdered or kidnapped? (141) How does Shue's theory point to the need to create the right kind of social institutions? (142)
Orend provides a new ("normative") definition of positive and negative duties on p. 143. On this definition all duties of justice (duties to respect human rights) are negative duties. But then a refusal to support sorely needed public funding for public education becomes a violation of negative duty.
13. What universal, general and abstract duty corresponds to any human right? What does this specify at the second, more concrete level of human rights objects? (144) If we cannot guarantee unfailing possession of the objects of our rights, what can we guarantee? (145)
14. Why does the duty to aid those lacking the objects of human rights fall primarily to institutions, and secondarily to individuals? What principle limits what institutions can be asked to do to aid those lacking the objects of human rights? (146)
15. What five features does Orend attribute to the social structures of societies where human rights have been more or less realized on a mass scale? (147-48)
16. Does Orend think that realization of human rights in the poorest countries is possible? Is resource transfer from the better-off countries a duty? (149)
17. What are the possible pitfalls of "development aid"? How have they been used to detrimental effect in the "interests" of the giver nation or elements within it? What factors internal to the poorer countries have hampered development even in the presence of aid? What lessons regarding the occurrence of famine have been drawn by Amartya Sen? (149-50)
18. What sort of help to poorer countries would be consistent with a human rights perspective? (150)
19. Who, according to Orend, has the main responsibility in the poorest countries? (150)
For discussion: Does Orend let the wealthy nations—particularly Europe and the United States, which have benefited for 200 years from their dominance over the poorer nations--off the hook too much? Explain, making such distinctions as are appropriate.1. What are the main elements of the argument against human rights that addresses Western bias? (Look for three or four main points on pp. 156-57) Chapter 6
2. What is the genetic fallacy? How does awareness of this fallacy help respond to the critic of human rights?
3. What does Orend mean when he says that the criticism of universality is often advanced in bad faith? (158-59) How does this criticism itself play into the hands of Western arrogance? (159)
4. What evidence exists to support the claim of cross-cultural consensus on human rights? (159-60)
5. Why does Orend say that human rights are not the be-all and end-all of moral and political debate? (160-61)
6. What is Orend’s “argument from globalization” in favor of human rights? (161)
For discussion: Is this argument undercut by the links noted by grassroots-based protests between neoliberal globalization and human rights violations?7. What criticisms of human rights discourse does Marx make? (162) In relation to the first of Marx’s two points, what historical facts make this point plausible? (162-63)
8. What right, according to Marx, seems to be the primary right that influences our understanding of all other rights? Why do human rights, according to Marx, have such prominence in modern society? (164)
9. What claim does Marx make regarding the “rhetoric of universal morality” associated with human rights? (165)
10. Briefly explain exploitation and alienation as Marx understands them. (166)
11. Why does Marx say that liberty, equality, and fraternity are myths? (166-68)
12. What changes made in (wealthier) capitalist countries in the mid-twentieth century seem to reflect a growing appreciation for human rights? (170)
Perhaps the fact that the capitalist world was competing with an apparently powerful “socialist” world and that European countries had large socialist and communist parties during this period modify our understanding of the point Orend is trying to make here.13. What point does Orend make about means and ends in the struggle for a rights-respecting society? (170-71)14. When Orend says that “human rights sometimes occupy an active position” (171), what does he mean? How does this point help show the one-sidedness of Marx’s critique of human rights?
15. How is the standpoint of an “ethics of care” used by some feminists to attack the idea of human rights? (172-73) How does Orend reply to this line of argument? (173-76)
16. What is the gist of the communitarian critique of human rights discourse? (176-77) Why does it fail to persuade? (177) What, if any, is the basis of the communitarian critique? (178) Would we be better off without human rights? Explain. (178-79)
17. What criticism did the hierarchical conservative writer Edmund Burke raise regarding rights advocacy in his time? (179-80) Why did the utilitarian moralist Jeremy Bentham (at about the same time) claim that rights discourse expressed “anarchical fallacies”? (181-82)
18. How does the “minimalism of human rights” provide a way to respond to Burke? (182-83)
19. If stability and respect for human rights are incompatible, should the former take precedence? Explain. (183)
20. What is right about Bentham’s claim that human rights have anti-democratic aspects? (184-85) How does Orend respond to the core of Bentham’s claim that rights are anti-democratic? (185)