Showing that some past human societies lacked a concept of subjective rights altogether, and tracing the way in which that concept developed contingently through history does not in any way "refute" the concept; that is, it does not demonstrate that it is in any way incoherent or defective, and it certainly does not show that we should, or even could, get rid of it. It would, of course, refute certain beliefs, tacit or explicit, which we might have about the concept, for instance the belief that the concept was so natural and indispensable that one could not imagine that a society might lack it. Demonstrating that subjective rights were a local invention of postmedieval Europe would also in no way invalidate the claim that it would be a good idea for every society to institute and impose a regime of individual legal rights, and encourage the members of the society to use the concept of a subjective right as widely as possible. Philosophers call the claim that reference to the genesis, history, or development of a view has some refutational force "the genetic fallacy," and in the form in which these alleged "genetic refutations" are usually presented in the philosophical literature they are correctly described as "fallacies." However, the immediate disqualification of historical arguments as instances of "the genetic fallacy" often misses the point that a historical narrative is intended to make. Historical arguments often have a completely different aim and structure from purported refutations. They are not in the first instance intended to support or refute a thesis; rather, they aim to change the structure of argument by directing attention to a new set of relevant questions that need to be asked. They are contributions not to finding out whether this or that argument is invalid or poorly supported, but to trying to change the questions people ask about concepts and arguments. One of the effects that one type of historical account ought to have is that of causing it to seem naïve or "unphilosophical" simply to make a certain set of assumptions. If very many different kinds of societies, some of them of significant complexity, lack the very idea of a subjective right, why assume with no further argument that subjective rights are a natural part of the framework for political thinking? No amount of cleverness in looking for solutions to puzzles, such as how it is that original acquisition gives someone the "right" to a piece of property, will be enlightening if one is asking the wrong question. Historical enquiry will not by itself necessarily ensure that one asks the right ones, but it can contribute to helping to avoid certain ways of thinking that will lead only to confusion. The reasons why we have most of the political and moral concepts we have (in the forms in which we have them) are contingent, historical reasons, and only a historical account will give us the beginnings of understanding of them and allow us to reflect critically on them rather than simply taking them for granted.
(Raymond Geuss, Philosophy and Real Politics [Princeton and Oxford: Princeton University Press, 2008], 67-9 [italics in original])
Note from KBJ: Do you see what Geuss is saying? The same proposition—for example, that the concept of rights originated in a particular place at a particular time to serve certain needs—can be used either offensively or defensively. It can be used to show that there is something defective about the concept (the offensive use) or it can be used to disprove the claim that the concept is universal or natural (the defensive use). Only the first use is fallacious.
The same distinction applies in the case of religion. The proposition that religion comforts people can be used either offensively or defensively. It can be used to show that religion is false (the offensive use) or it can be used to undermine the argument from the pervasiveness of religion to the truth of religion (the defensive use). Only the first use is fallacious. If you infer the truth of religion from the pervasiveness of religion, I will point out to you that there is an alternative explanation (besides truth) of the pervasiveness of religion, namely, that it comforts people. Even if religion were false, in other words, people would believe it, because it comforts them.
Keith Burgess-Jackson, J.D., Ph.D. 