A non-foundationalist human rights discourse

So far I have used the concept of human rights without much elucidation. I have relied on Kantian moral premises to explicate the philosophical strategy behind the right of hospitality. In my discussion of the ambivalences of Arendt's concept of rights, I have also distinguished between the moral and the juridico-civil sense of the term. I have followed this strategy in part because I have sought to clarify the internal contradictions of the normative commitments of liberal democracies. What is the status of rights within a discourse theory of ethics? Can a discourse-ethical justification of rights claims lead us beyond the impasses that usually afflict “rights talk”?

Since Jeremy Bentham's quip that belief in natural rights is “nonsense on stilts” (1843, II, 501), rights claims have been mistaken to refer to certain moral properties or attributes of human beings. The language of “natural rights” perpetrated the naturalistic fallacy in that it conflated a claim about moral grounds – the reasons why we ought to recognize each others' claims to action or forbearance, resources or services of certain sorts – with a seeming description of the physical and psychological attributes of existing moral entities – that individuals could not but act in pursuit of self-preservation (Hobbes) or for the protection of their life, liberty, and property (Locke).