A Critique of the Status Function Account of Human Rights

Abstract

This contradiction ”1. The universal right to free speech did not exist before the European Enlightenment, at which time it came into existence. 2. The universal right to free speech has always existed, but this right was recognized only at the time of the European Enlightenment.” (Searle) draws on two common and conflicting intuitions: The human right to free speech exists because institutions, or the law, says so. In contrast, the human right to free speech can exist independently of institutions—these institutions simply recognize a right we already have. John Searle argues that his status function account of human rights can preserve both intuitions by showing that the inconsistency between (1) and (2) is merely apparent. I argue that this solution works for tokens of human rights but not for types, while the contradiction concerns types. Hence, the status function account of human rights fails to preserve both intuitions.