A substantive account is a theistic account:

Why we need the resources of theism for grounding human rights

A.S. (Stef) Groenewoud, 9940332

Worldwide, human rights are seen as an important source for the protection and promotion of the
interests of members of the human race. Human rights though not always conceived of as we do
nowadays have a long historic tradition. According to some scholars, it was already in the Classic
Antiquity that the concept of rights was used (Brouwer 2011), be it in a more objective way; to
describe a good or just situation. However, the probably most accepted historic reconstruction of the
origin of human rights as we see them today; namely as subjective entitlements that a person possesses
to control or claim something, is that they first appeared in the late twelfth or the early thirteenth
century (Griffin 2008). It was after the death of Franciscus of Assisi (1182-1226) that the Franciscans
began disputing what exactly their vow of poverty implied. Franciscans have not renounced their
property, they claimed. Each of us has an inalienable natural right to goods when in extreme needs
(ibid, 2008, p 31). After that, William of Ockham (1285-1349) saw reason as giving us freedom, and
freedom as giving us dignity, which became later (at least according to several treaties and
declarations) the ground for human rights. Later, Pico della Mirandola (1463-1494), an early
Renaissance philosopher, gave an influential account of the link between our freedom and the dignity
of our status. Centuries later, both the American (1776) and the French (1789) declarations of
independence, form the next milestones in the history of human rights. The U.S. Declaration of
Independence ringingly declared: We hold these truths to be self-evident, that all men are (...)
endowed by their Creator with certain inalienable rights, that among these are life, liberty, and the
pursuit of happiness. And the French declared (...) to set forth in a solemn declaration the natural,
unalienable, and sacred rights of man (...). Since the United Nations adopted the Universal
Declaration of Human Rights (UDHR) in 1948, the concept of human rights has been playing a
prominent role within the moral and political thought of human beings around the globe.

What grounds human rights morally?

An important question regarding human rights is; what justifies, or grounds them morally1? Or
stated differently: what gives me a morally justified claim to being treated according to a certain
human right? If we look at preambles of many international treaties and declarations, we see that
dignity forms the basis for human rights. The preamble of the 1948 UDHR for instance, says:
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of
the human family is the foundation of freedom, justice and peace in the world (United Nations.
1

I explicitly discern here the moral justificatory grounds from other grounds, for example, legal justifications.

General 1948). The problem is however, that in these treaties and declarations, the concept of dignity
is deliberately kept vague (Sensen 2011), giving us no direct moral justificatory ground for human
rights. The quest for a moral grounding for human rights becomes even more pressing when the
question rises whether many purported human rights claims are genuine human rights and who can
claim them. For example, the UDHR lists such rights as the right to employment and periodic holidays
with pay (ibid, article 24). But what about someone who has no paid work? Can he claim this right as
well? And if he cannot; can we still claim this to be a human right? After all, according to many,
human rights are expected to be applicable to all human beings equally (Gewirth 1981).

Aim of the paper

What is needed to answer these questions, is a substantive account of human rights, that is, an account
that tells us what human rights we have, who have them, and why we have these rights (Liao 2014). In
this paper, I will not elaborate on the first part: what human rights we have. I will also not go into
much detail about the moral subjects of human rights2. My focus will be on the third part of such an
account: the moral grounds for having certain rights.
In order to arrive at that point, I will first look at a category of accounts for the justification of human
rights that is dominant in the field: the Naturalistic Conception of human rights. In contrast with this, I
will shortly mention other accounts, and I will come to the conclusion that human rights are grounded
in the worth of the rights-bearer. This faces us in the second paragraph with the challenge to identify
that (combination of) feature(s) of human beings on which that worth supervenes. Though I will not
identify that feature(s) immediately, I will mention five criteria or conditions for such (a combination
of) feature(s). Third, I will look at three existing Naturalistic accounts: Griffins Agency Approach,
Nussbaums Central Capabilities Approach, and a recent one: Liaos Fundamental Conditions
Approach. I will argue that none of the existing accounts meet the criteria set in the second paragraph
so that these accounts will not provide us with features in human beings that might ground human
rights. Then, in the fourth paragraph, I will look at Nicholas Wolterstorffs approach (Wolterstorff
2010), in which he claims that we need resources of certain versions of theism for the grounding of
human rights. I will conclude that a (slightly amended) version of his account does fit the criteria from
paragraph two, thus showing us the core feature(s) that all human beings inherently possess. Finally, I
will discuss whether or not such an account could not only be of value for Christian philosophers but
might also hold for secular thinkers.

In the second part of this paper I will state that human rights are universal and equal and thus can be claimed by
all members of the human family.

1. Naturalistic and other Conceptions of Human Rights

In the discussion about the moral justification of human rights, Naturalistic Conceptions are dominant.
In summary, naturalistic views are characterized by the fact that they conceive of human rights as
rights that can be possessed by persons in a state of nature (i.e. independent of any legal or political
institution, recognition, or enforcement). Human rights are those natural rights that are innate and that
cannot be lost (given or taken away), and they have the properties of universality, independence (from
social or legal recognition), naturalness, inalienability, non forfeitability and imprescriptability. Or, to
say it shortly: human rights are rights possessed by all human beings (at all times and places), simply
in virtue of their humanity (Beitz 2009). Naturalistic approaches (there are quite a few, as we will see
in the third paragraph) agree that there must be a justificatory ground within the human being (or being
human), that functions as a moral justificatory ground for human rights. They differ however in their
views of what forms this specific (set of) feature(s).
Not everybody in the modern world accepts and employs the concept of natural human rights.
Classical utilitarians do not; ones choice of what to do is to be guided solely by comparative estimates
of life-goods to be brought about. Some Christians do not; they believe they are always and only to act
out of gratuitous benevolence, not out of respect for rights. A good many Muslims dismiss the idea of
natural human rights as an invention of the West (Wolterstorff 2014). But there is another, important
school that conceives differently of human rights and their (moral) justification, and this is the
Political Conception of human rights. This account, that is represented by renowned philosophers as
Rawls, Raz and Beitz, understands human rights in their role of function in modern international
political practice (Liao, 2014, p.28-40). Owing the lack of space, I shall only shortly mention Beitzs
political conception of human rights here. What Beitz discusses, is that the border between human
rights and political ideals has disappeared. Many rights that are claimed to be human rights, clearly do
not meet the criteria of what human rights should be; namely, being not dependent on positive law and
moral conventions, pre-institutional, universal (possessed by persons in all times and all places and
belonging to persons as such, simply in the virtue of their humanity (Beitz, 2009, p. 52,53). This
brings him to the conclusion that it is not clear that there is any nontrivial sense in which human
rights must somehow be grounded in features that all persons necessarily share(ibid., p. 59). What
Beitz proposes instead is that we do better to approach human rights practically, not as the
application of an independent philosophical idea to the international realm, but as a political doctrine
constructed to play a certain role in global political life (ibid., p. 48-49). The problem I have with
Beitzs analysis, is that it heavily leans on (an inventory of) the (too?) broad spectrum of current
human rights of which some can be disputed to be genuine human rights, as we saw before. To say
it differently; why should the fact that there are nowadays human rights that do not meet the criteria
of genuine human rights inevitably lead to the conclusion that human rights cannot be grounded in a
(set of) shared feature(s) all human beings possess? Beitzs critique on this point is also dealt with by
Griffin as he discerns between basic and applied human rights, of which only the first category are

grounded by features that are inherent in all human beings: But we must keep in mind the distinction
between basic rights and applied or derived rights. Rights may be expressed at different levels of
abstraction. The highest level would emerge when we articulate the values that we attach to agency
(...)(Griffin, 2008, p. 50).

2. What feature(s) of human beings ground(s)their worth and thus their rights?
Having said all of the above, we can (together with all UN declarations) assume that human rights
accrue to human beings on account of the dignity, the worth, the excellence or the estimability that
human beings possess. The big challenge however, is to identify a (set of) feature(s) of human beings
on which that worth supervenes. To successfully find that feature would be to offer a dignity-based
grounding of human rights. What kind of feature(s) are we looking for? We have already seen some
criteria for them in the previous paragraph (inalienable, universal, etc.), but I will frame them here a
little bit differently, based on Wolterstorff (2014, p.11,12).
First, it has to be a feature that is ineradicable from human beings; a feature that no human being
can lack so long as he or she exists. The reason for this goes as follows. Human rights are such that the
status sufficient for having them is that of being human. So if human rights are grounded in dignity,
then the dignity that grounds those rights must be ineradicable from the status of bgeing human;
otherwise the status sufficient for having those rights would not be that of being human. And if that
dignity is ineradicable from the status of being human, then the feature(s) on which that dignity
supervenes must likewise be ineradicable from the status of being human; otherwise one could have
the status without having that feature (those features) and hence without having that dignity. But the
status of being human is ineradicable from human beings. So the feature we are looking for, must be
ineradicable. Infants, Alzheimers patients, those in a permanent coma, anyone who is a human being
must possess the feature we are looking for.
Second, given that the entire package of human rights is not shared with any of the non-human
animals, the (set of) feature(s) on which the dignity that grounds human rights supervenes has to be
one that no non-human animals possess. It must be a uniquely human feature.
Third, in the literature on dignity-based attempts to ground human rights, one finds it commonly
assumed that the feature we are looking for gives to each human being a worth greater than that
possessed by any non-human animal; an animal-transcending worth.
Fourth, though human beings vary greatly in the worth they have on account of native
endowments, achievements, and so forth, it is assumed that there is something about our being human
that gives us equal dignity. So the feature we are looking for must be equally available in all human
beings.
Finally, there is another condition for success in developing a dignity-based grounding of human
rights that is of a sort quite different from the ones I have mentioned thus far. To make this one clear,
Wolterstorff (2014, p.13) gives the example of mutilating a human being for the pleasure it gives the

mutilator. Then he claims that if we look a feature that gives humans inherent dignity we want our
intuition to say: Yes, now I understand why even a person in a permanent coma has a right not to be
mutilated for the pleasure of the mutilator, why even she has a dignity that makes that impermissible.

3. (How) do current mainstream naturalistic approaches ground the dignity that accounts for
natural human rights?
According to James Griffin (2008), human rights are primarily grounded in personhood. In spirit
of the tradition3 he says that human life is different from the life of other animals. We form pictures of
what a good life would be (...) and we try to realize these pictures (ibid, p. 32). He then breaks down
the notion of personhood by breaking down the notion of agency. To be an agent, one must choose
ones own path through life, not dominated by someone else (autonomy), have the liberty to pursue
this conception, and have a minimum material provision and education. Vice versa, human rights
protect these fundamental values, in order to realize personhood. Secondly, Griffin grounds human
rights in, what he calls, practicalities. This means that my claim (on others), based on a human right,
must be socially manageable. Practicalities are empirical information about (...) human nature and
human societies, prominently about the limits of human understanding and motivation (ibid, p. 38).
Because practicalities are not based in the worth of the rights-bearer (see paragraph 1), we will not
further look at this part of Griffins account in our analysis that we will instantly present.
A second naturalistic account is Nussbaums Central Capabilities Approach (Nussbaum 2011).
Key to Nussbaums approach are the notions of capabilities and functionings where capabilities are an
individuals real opportunities to choose and to act to achieve certain functionings, and functionings
are various states and activities that an individual can undertake (ibid, p. 20-26). Nussbaum argues that
the following ten central human capabilities are particularly important, as they are entailed by the
idea of a life worthy of human dignity: life; bodily health; bodily integrity; senses; imagination and
thought; emotions; practical reason; affiliation; other species; play; and control over ones
environment (ibid, p. 33,34). Nussbaum believes that all human beings are entitled to these capabilities
and these capabilities form the basis of human rights (ibid., p. 62). In particular, to have human
dignity, Nussbaum argues that each human being must have enough of these capabilities (ibid., p. 36).
A third, naturalistic account, that was recently developed by Liao (2014) is the Fundamental
Conditions Approach. According to this account, human rights are grounded in the fundamental
conditions for pursuing a good life. A good life is is one spent in pursuing certain valuable, basic
activities. Basic activities are activities that are important to human beings qua human beings life as
a whole. Sunbathing, for example, is an activity, but not a basic activity because a human being qua
human being is not affected if a human being did not go sunbathing (ibid., p.6). Basic activities are for
example deep personal relationships with, e.g. ones partner, friends, parents, children; knowledge of,

See the introduction of this paper

e.g., the workings of the world, of oneself, of others; active pleasures such as creative work and play;
and passive plearusres such as appreciating beauty; all ingredients of living a minimally decent life,
as Liao calls it (ibid., p.7). From these basic activities, Liao derives the contents of the fundamental
conditions for pursuing a good life. These fundamental conditions are various goods (items as food,
water, and air); capacities (capacity to think, to be motivated by facts, to know, to choose and act
freely and to appreciate the worth of something, to develop interpersonal relationships, and to have
control over the direction of ones life); and options (for example the option to have social interaction,
to acquire further knowledge, to evaluate and appreciate things, and to determine the direction of ones
life). According to Liao, these fundamental conditions for pursuing a good life ground human rights
because having these conditions is of fundamental importance to human beings, and because rights
can offer powerful protection to those who possess them (ibid., p.10).
I share the conviction that the above mentioned (capacities and conditions for) agency gives
those who possess it great worth. To act according to it and to live ones life facilitated by these
capacities and conditions is extraordinary and we should treasure that creature and treat her with the
respect due her as someone who possesses this agency and these capacities. I doubt however that
agency, as Griffin describes it, and that the capabilities and conditions Nussbaum and Liao discern,
really ground human rights. They simply cannot be the (set of) feature(s) we were looking for, on
which a human beings dignity, worth, excellence or the estimability, supervenes; because they do not
meet the criteria we set for such a (combination of) feature(s). First, some human beings are less, or
not at all capable of forming a plan on life as an autonomous and free agent, and do not possess the
minimum provisions, or the capabilities described above, or do not live a minimally decent life as
described by Liao. Think of newborn infants, or patients in deep coma or dementia. Thus, Griffins
agency, Nussbaums capabilities and Liaos conditions are not ineradicable4. Second, it has been
claimed that the capacity for rational agency is not unique to human beings; porpoises and
chimpanzees, for example also seem to have this capacity as well (Korsgaard 2009; Wolterstorff
2014). Again, the three attempts to ground human rights fail; this time because they do not satisfy the
requirement that the feature(s) we are looking for be uniquely human. And third, because there are
humans whose agency, capabilities, and capacities are lower than the lowest degree possessed by
some mature, well-formed animals, (take for example those in a deep comatose state), so we can also
not say that in these three accounts there is an animal transcending worth. Fourth, since infants,
those in deep coma, and demented persons are not equally gifted with autonomy, liberty, minimal
provisions, capabilities and capacities, they would be less dignified, or at least their claim to human
rights would be less grounded compared to other, mature, well-formed human beings. One could say

Wolterstorff (2014, p. 15-17) mentions that in the case of infants and those in coma, there is always a promise
of agency, capacities, etc. and demented persons carry the history of being agents. He comes however to the
conclusion that this does not illuminate our intuition of what should be the feature in humans that grounds
dignity (or fifth criterion).

that childrens capacities and agency come in degrees, but that would still violate the common equalworth assumption.

4. A theistic account of human dignity that grounds human rights

In my view, there are two elements of a theistic account that provide us with the ineradicable, uniquely
human, animal transcending, and equally possessed feature that will illuminate our intuitions about
such a (combination of) feature(s). These are the two ways in which human beings stand in a relation
to God. The first way is that all humans bear the image of God5. The second one is being loved by
God.
In his book The City of God, Augustine (354-430) presents a clear view of what Christians mean if
the say that human beings are unique, because they are created in the image of God: But we must
understand in what sense man is said to be in the image of God, and is yet dust, and to return to the
dust. The former is spoken of the (...) soul, which God by His breathing, or, to speak more
appropriately, by His inspiration, conveyed to man, that is, to his body; but the latter refers to his
body, which God formed of the dust, and to which a soul was given, that it might become a living
body, that is, that man might become a living soul (Augustine and Dyson 1998, Book XII, Chapter
23). If we assume that Augustines definition of the soul does not contain elements of the body and
of ratio and intelligence, and we have good reasons to do so, based on how Augustine talks about
persons who are seriously physically and/or mentally limited (Boer and Groenewoud 2012), then the
human soul is a feature of human dignity that we were looking for. After all; it meets all four of the
criteria6.
A second relation human beings have with God is that of being loved by God, love being understood
as the desire for friendship. To explain this, Wolterstorff (2014, p. 23) gives the example of a monarch
who is a benefactor to all his subjects, though also is lonely. He therefore selects some of them as ones
with whom he would like to be friends. In his choice, he bestows worth on the chosen. The
application of the analogy is obvious. Suppose that one is chosen by God as someone with whom God
desires to be a friend. This is to be honoured by God. And to be honoured by God is to have worth
bestowed on one. Add now that every human being has the honour of being chosen by God as someone
with whom God desires to be friends and that this desire endures. Then every human being has the
ineradicable, (uniquely human, animal transcending), and equal worth that being so honoured
bestows on one (ibid., p. 25)7.
5

Wolterstorff (2014, 20-23) rejects the first one, but that is because in my view he does not conceive of the
image of God in a correct way. However, I do not have the space here, to go into that into detail.
6
We will later discuss whether it might also enlighten the intuition of non-Christians, which is our fifth criterion.
7
Three crucial additions have to be made to this: first, it was not arbitrary that God chose human beings (and, as
Wolterstorff says not crocodiles). God chose humans because of their nature, which means that God saw their
potential for friendship (which crocodiles lack, because of their nature). Second, there are blockages to the
realization of the (potential) friendship, such as the moral breach that came between humans and God, or our
current physical or mental conditions that hinder us to function as persons. These blockages will have to be

5. (To whom) is this theistic account really a substantive account?

The aim of this paper was to show that a substantive account for the grounding of human rights an
account that tells us what human rights we have, who have them, and why we have these rights is a
theistic account. I suggest that the first part of such an account (what human rights humans have,
based on a theistic account) will have to be subject of a next paper. What we did see in the above, is
that the reason why human beings (part two and three of a substantive account) have dignity, (which is
the ground for human rights), is that they have a soul in the image of God and that He has bestowed
worth on us by choosing us as His friends. We saw that this theistic account meets the criteria for a
(combination of) feature(s) of human beings in which human rights are grounded, whereas other
(naturalistic) accounts do not.
Nice for you, as Christians, would a non-Christian say, but where does that leave me? Of course,
this is not the place for a plea for the existence of God (if provable at all), but I also think that this is
not necessary. I would claim that this way of looking at the grounding feature(s) in humans for having
human rights, is rooted in much more worldviews than merely in Christianity; it may even be rooted in
mankind as a whole. In his book The Abolition of Man, C.S. Lewis claims that the importance we give
as humans to the rights of posterity8 are grounded in what he calls The Tao: The Innovator (this is
how he calls the enlightened human), for example, rates high the claims of posterity. He cannot get
any valid claim for posterity out of instinct or (in the modern sense) reason. He is really deriving our
duty to posterity from the Tao (Lewis 1956). This conception of Tao in all its forms, Platonic,
Aristotelian, Stoic, Christian, and Oriental alike commonly share something we cannot neglect. It is
the doctrine of objective value. In other words, it is possible to find a common and shared value, as I
described above, as the grounding feature for human rights, even if we are rooted in (at first sight)
very different worldviews. I suggest that a next paper should explore what a substantive account based
on Lewis Tao would look like.

repaired; either in this life or in the next. Third, the reason why God wants to be friends with us is presumably
much like the explanation for why we want to be friends with some of our fellow human beings. We desire to
become friends with someone not because we think she merits it or because we think her worth requires it but
because we anticipate that our friendship will be a significant good in the lives of both of us (Wolterstorff, 2014,
p.25-26).
8
Which is usually seen as a human right.

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