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Clearly I didn’t do an adequate job of explaining my position on rights in this post, leading one commenter to suggest that my view came down to suggesting that rights and laws regarding rights are basically identical. Nothing could be further from the truth. I do think that the way governments respect human rights can be evaluated by an independent standard; I just think that evaluation needs to be done without reference to supposed natural laws of which we have no evidence.
In that post I referred to constructivism as “the metaethical view that certain ethical claims can be true or false, but that they’re true or false on terms constructed by human society.” What I left unsaid is what those terms are. And while there are a lot of different forms of constructivism, the one I tend to favor when it comes to political philosophy is the Rawlsian concept of the original position.
This is the view that John Rawls (pictured)—the founder of modern political liberalism (which is to say philosophical political liberalism, which is not the same thing as what we normally understand to be liberalism)—outlines in his landmark work A Theory of Justice. He writes that the ideally fair society is one in which all the laws and structure of government are decided and mutually agreed upon by its citizenry while this citizenry is in the original position. To be in the original position is to be behind something called the veil of ignorance; it means that while you are capable of rational reflection, you have no idea where you will fit into this society. You have no idea what your race, social class, income, religion, gender, sexual orientation (which I don’t think Rawls mentions, but I’m going to throw it in there anyway), etc. will be. Any rational individual in this position, Rawls argues, will advocate for laws and policies that are fair to even the worst off in the society, because they know that could be them.
I’m not completely onboard with everything Rawls writes in A Theory of Justice, but I think the concept of the original position is a good starting point for thinking about what an ideally fair society, one that respects human rights, would look like.
Incidentally, Rawls’ original position is what Sharon Street—an NYU professor, and, I think, one of the leading explicators of constructivism—would call restricted substantive constructivism. In other words, it is a theory of ethics that applies to a restricted field (politics), and is substantive in that you can’t rationally try to construct ethics within this system without (or at least Rawls would argue) ultimately deciding that universal fairness and respect for everyone’s rights are good things.