under a duty not to kill you – then we could, Finnis suggests, just as well say that
there are no rights outside the state.
While Finnis accepts the post-Thomist pluralisation of rights he argues that the
Hobbesian tradition loses sight of the connection between right and rights. The
justification of human rights depends upon understanding that connection. The
limitations on the rights contained in the UDHR and the ECHR are significant: they
demonstrate that rights derive their validity from an underlying structure of ‘right’.
Were the only limitation on your rights the rights of others then Finnis’s observation
would not be particularly interesting, but others’ rights do not constitute the only
limits: there is also reference to morality, public morality, public health and public
order. These considerations cannot be reduced to the effects on identifiable
individuals, but are ‘diffuse common benefits in which all participate in
indistinguishable and unassignable shares’ (Finnis, 1980: 216). A scheme of human
rights, such as the UDHR or the ECHR is:
Simply a way of sketching the outlines of the common good, the various aspects
of individual well-being in community. What the reference to rights contributes
to this sketch is simply a pointed expression of what is implicit in the term
‘commongood’, namely that each and everyone’s well-being, in each of its basic
aspects, must be considered and favoured at alltimes by those responsible for
co-ordinating the common life.
(Finnis, 1980: 214, his emphases)
It may be true that there is a necessary connection between right and rights, and
that others’ rights are not the only limitation on rights, but we need to establish in
what sense rights are natural, and thus universal. Finnis maintains that there are
goods which all cultures value: (a) life (including self-preservation and procreation);
(b) knowledge (considered valuable in itself); (c) play (activities enjoyed for their
own sake, lacking any point beyond their own performance); (d) aesthetic experience
(appreciation of beauty); (e) sociability (including friendship, which is a non-
instrumental relationship); (f) practical reasonableness; (g) religion (even if one
rejects religious claims, to ask questions about the origin and purpose of life is
essential to a ‘full life’) (Finnis, 1980: 83–4). Human rights are grounded in the
protection of these goods: it is not difficult to see how particular articles of the
UDHR function to enable their pursuit.
There are several problems with Finnis’s argument. First, even if we can identify
cross-cultural activities, such as the pursuit of knowledge or play, it does not follow
that what we have characterised as ‘common’ to different cultures amount to ‘goods’
which can be pursued. Does the scientific knowledge of Western societies correspond
to the voodoo knowledge of some African societies? Does the Netherlands fail to
uphold respect for life because – under strict conditions – it permits a doctor to
assist a person to die? Second, Finnis – like Habermas – wants to argue that we
can derive these goods from reason. But unlike Habermas he generates a substantive
list of goods which we ‘ought’ to pursue and protect. Furthermore, although
Habermas can be criticised, at least his theory was grounded in the formal aspects
of communication. Finnis, on the other hand, continually appeals to the intuitions
of his reader; he has nothing else in his intellectual armoury. Third, the value of a
particular activity is not as straightforward as Finnis suggests. For example the
‘pursuit of knowledge’ may be motivated not by a search for truth but a desire for
Chapter 18 Human rights 417