At a glance:
- Rights originate from speech acts and are essentially linguistic, therefore, they:
- Have a subjective ontological mode of existence;
- Are the ontological basis of all rights from which deontology emerges;
- Their linguistic structure dictates that they:
- Have the illocutionary force of a declaration;
- Contains propositional content with a double direction of fit: world-to-word and word-to-world;
- Exist by representing itself as existing (Searle, 2010: 86);
- Exist as standing status function declarations;
- Creates deontic powers:
- Positive deontic powers (e.g., when one has a right) – Not to be confused with positive claim “rights” (entitlement claims);
- Negative deontic powers (e.g., when one has an obligation) – Not to be confused with negative liberty right claims;
- Duties and obligations created by rights have propositional content, directions of fit, and have an illocutionary force of directives with a world-to-word direction of fit;
- Certain Human Rights include conditional deontic powers or disjunctive deontic powers due to the interrelation with social institutions, such as regarding procedural due process;
- Are absolute due to their logical structure as status function declarations (Searle, 2010: 196);
- Are neither inherently conditional nor prima facie (Searle, 2010: 196-197);
- Are deontological, not teleological or utilitarian, providing greater strength;
- Are inherently normative in structure which introduces epistemically objective normativity;
- Creates an “ought” from an “is” through the creation of desire-independent reasons for action such as rights, duties, and obligations;
- Institutional facts = status functions → deontic powers → desire-independent reasons for action (Searle, 2010: 23);
- Requires collective recognition which requires justification;
- Must be epistemically objective in order to function structurally in social institutions;
- Requires agents with free-will which accords with current legal structure;
- The very occurrence of the thought “mine” creates, linguistically, the notion of property, rights, duties, and obligations while public speech acts create public deontology with stronger commitments and codification into law solidifies and strengthens the public deontology;
IT has been asked, “If rights are real, where are they?” Understanding the reality of rights is a question of ontology, or social ontology more specifically. The nature of social institutions has a long and sordid history in the West full of blunders and false assumptions about reality.
In very recent history, the philosopher John R. Searle has made enormous contributions to the understanding of social ontology. Most fundamentally, social institutions are linguistic in nature and have a subjective ontological mode of existence. In modern Western thought, many will take this to mean that social institutions, including rights, are purely conventional and arbitrary linguistic entities, supporting a constructivist stance toward rights. However, this common view is the result of more basic assumptions about language and the world itself.
Most important is the understanding of language. In the philosophy of language, there are two main “strands” known as ‘analytic’ and ‘speech act theory.’ Analytic philosophy of language is by far the most dominate stance in the philosophy of language, with speech act theory as a relatively small minority. Speech act theory essentially began with J. L. Austin and has since been elaborated by one of his students John R. Searle.
Speech act theory recognizes that language is composed of actions rather than syntactic manipulation of constructed formal systems. These actions have meaning imposed on them by conscious linguistic organisms, and the logical structure of the underlying conditions can be analyzed. Speech act theory, in this way, can be viewed as a subset of praxeology, which is the study of the logical structure of human action and best known as the basis of sound economic theory.
The analysis of the logical structure of the speech acts maps the logical structure of the Intentional mental states of the conscious organisms performing the speech acts. What is meant by “Intentional mental states”? A mental state is Intentional (with a capital ‘I’ to differentiate from the sense involving intention) in the philosophical sense in that it is of or about objects and states of affairs in the world.
The idea that language involves actions was realized by J. L. Austin by designating them as ‘performatives’ in that there is the performance of an illocutionary act. The intention of the speaker in performing the illocutionary act determines the illocutionary force, of which there are five (Searle, 2010: 69):
- Assertives – describe a state of affairs
- Directives – tell someone to do something
- Commisives – commit oneself to something
- Expressives – express a feeling or attitude
- Declaration – make something exist by declaring it to be the case
Rights are not attempting to describe a state of affairs in the world, nor are they simply orders or commands, nor are they commitments or expressives. Rights are declarative speech acts, which make something exist by representing it as existing. This fundamentally linguistic entity exists in so far as it is collectively recognized, what John Searle refers to as collective Intentionality. The term ‘collective’ must not be taken to mean collectivism, which is a political stance, but rather that if a sufficient number of individuals recognize the entity of existing, then it exists in that capacity with a subjective, first-person ontological mode of existence, in that it only exists to the extent that it is collectively recognized by persons.
The key to understanding the linguistic origin of rights is that language emerges from pre-linguistic Intentional states (Searle, 2004: 113), and with the advent of language these Intentional mental states are further structured into discrete states which are amenable to the syntactic manipulation necessary for complex reasoning and logic (Searle, 2010: 68).
Language expresses these Intentional states and has a logical structure from which deontology emerges (Searle, 2010: 82). A critical point of Searle’s is that the logical structure of language matches the logical structure of our Intentional states (Searle, 2010: 67) which provides what are referred to as conditions of satisfaction with directions of fit (Searle, 1983: 7). In other words, man’s Intentional states generally have propositional contents which are intended to fit the real patterns of the world, and the conditions of satisfaction obtain when they match.
This fit may have a particular direction, such as an idea which is intended to match the relevant pattern in the world, which is referred to as a mind-to-world direction of fit (the mind is to match the world) (Searle, 1983: 7). A desire may have the opposite direction, where the world is intended to match an Intentional state, which is referred to as a world-to-mind direction of fit (the world is to match the mind) (Searle, 1983: 35). A declaration has both directions of fit because it represents a state of affairs as existing (Searle, 2010: 69).
Rights exist as declarations, or more specifically as status function declarations, which represent a state of affairs as existing (Searle, 2010: 86: 176). As a result of their logical structure, if collectively recognized, rights create deontic powers (Searle, 2010: 177-179) with an illocutionary force of a directive and provide desire-independent reasons for action.
Desire-independent reasons for action are controversial due to the underlying assumptions regarding rationality theory: Classical rationality theory claims that there are only desire-dependent reasons for action (Searle, 2001: 26). However, it is clear that man can act on reasons (Searle, 2001: 27-28), which, when internalized through recognition, create a motivation for action (Searle, 2001: 124-125; Searle, 2010: 129).
From the logical structure of these declarative speech acts, a deontology emerges which is quite different from the typical analytic conception of deontology as a closed formal system. As with praxeology, the logical structure of action is not a closed formal system. The logical structure of the declarative speech acts underlying rights dictates that they are absolute in that they are absolute in their logical structure.
So while there is some truth in the constructivist stance that social institutions are linguistic in nature and founded on conventions, this does not make them arbitrary and they cannot be manipulated at will. This idea comes from the analytic strand of philosophy of language, which itself is a symptom of what can be called the Newtonian Worldview.
The Newtonian Worldview is the world of things and absolutes that ontologically has no place for human action. This results in a disconnect between consciousness and the physical world, or the subjective and objective ontological modes of existence.
An early manifestation of this disconnect was the Representative Theory of Perception as early as Locke, which is to say that objects and states of affairs in the world are not perceived, but rather the visual representation of them is perceived. This results in a disconnect with the world and had disastrous effects on epistemology up to the present day.
In this worldview is an implicit nihilism, for this disconnect eliminates the ability to really know anything about the world, and the ontological denial of action (since the universe is causally closed, consciousness cannot be causally effective) decouples man from the interaction with the world that is at the foundation of epistemology, for epistemology has a fundamental praxeological element. This disconnect treats language as purely formal systems, precluding the ability to properly understand consciousness, Intentionality, language, and, therefore, social institutions, which includes rights.
While there is an enormous amount left out in this very incomplete explanation, the point is that rights do in fact exist as the result of speech acts, from which an entire deontology emerges with deontic powers and desire-independent reasons for action. However, there is a more fundamental praxeological element behind these speech acts which must be explored later.
Searle; John R. (1983) Intentionality: An Essay in the Philosophy of Mind. New York, U.S.A.: Cambridge University Press (1989) ISBN: 0-521-27302-1.
Searle; John R.(2001) Rationality in Action. Cambridge, U.S.A.: The MIT Press, ISBN: 0-262-69282-1.
Searle; John R. (2004) Mind: a Brief Introduction. New York, U.S.A: Oxford University Press, ISBN-10: 0-19-515734-6.
Searle; John R. (2010) Making the Social World: The Structure of Human Civilization. New York, U.S.A.: Oxford University Press, 1 edition, ISBN: 978-0-19-539617-1.
