“Elements of a Theory of Human Rights” by Amartya Sen, in Philosophy & Public Affairs (Oct. 2004), 130 Corwin Hall, Princeton Univ., Princeton, N.J. 08544.

Never mind all those lofty pronouncements in America’s Declaration of Independence, France’s Declaration of the Rights of Man, and the United Nations’ Universal Declaration of Human Rights. The idea that humans have rights without specific legislation giving the rights legal definition and force is just “nonsense upon stilts,” utilitarian philosopher Jeremy Bentham (1748–1832) asserted—and many modern thinkers agree. But Nobel laureate Sen, an economist at Harvard University, takes an opposing view.

Human rights are “primarily ethical demands,” he says. Though they often inspire legislation, they’re not mainly legal commands. They derive their importance from the underlying freedoms that they’re about. “For example, the human right of not being tortured springs from the importance of freedom from torture for all.” And the ethical demand is not just for the would-be torturer to desist, but for other persons to consider how torture can be prevented and what they themselves should reasonably do toward that end.

Bentham regarded natural rights as false legal pretensions. A modern law–centered view that’s more accepting of the idea of human rights sees them as “laws in waiting.” But for Sen, human rights are not just the basis for new legislation; they can also influence public opinion and prompt agitation on their behalf. In monitoring abuses of human rights, for example, Amnesty International and other watchdog groups promote the cause of human rights.

Only a freedom important enough to justify obliging other people to consider what they can do to advance it can become the basis for a human right, Sen maintains. And those other people must plausibly be able to make a difference.

Some contemporary thinkers accept the general idea of human rights but reject the inclusion of so-called economic and social rights, such as a common entitlement to subsistence or health care, because the institutions needed to fulfill those rights may not yet exist in many societies. But this, Sen argues, only indicates the need to work toward changing the circumstances that prevent such rights from being realized.

The ultimate test of the validity of claimed human rights, he says, is whether they survive uninhibited, informed discussion and scrutiny, not merely in one society but “across national boundaries.” As Adam Smith once wrote, ethical scrutiny requires examining moral beliefs from “a certain distance.”