12 Philosophical Foundations of human rights
Dr. Y S R Murthy
Learning Outcomes
- To gain an insight into the philosophical foundations of human rights.
- To understand the various sources of moral foundations of human rights and explore the philosophical and theoretical underpinnings.
Introduction
The debate around the idea of human rights has gone on for a long time in different parts of the world. It took centuries for the humankind to realise the true worth of a human being so as to have a better understanding of the concept of human rights. The history of this struggle is replete with accounts of brutal regimes characterised by practices like prejudice, discrimination, exploitation, oppression, enslavement, persecution, torture and extermination. Still, the notion of human rights did not become a universal idea where there was any coherent position.
The Second World War changed this narrative forever. And since then, the body of international human rights law has seen tremendous growth. With the growth and evolution of the body of human rights doctrine, it has also been observed that the idea of human rights has found acceptance in the world. Today, when we review the developments in the post-UN charter period, we find that more than 70 legally binding international human rights conventions and 30 non-binding standards have been adopted by the UN General Assembly in the little over seven decades of UN’s existence. They constitute rules in the international level to regulate the conduct of States.
Even after this remarkable growth and acceptance of the human rights doctrine, the seach for its philosophical foundations continues to be debated. There is a school of thought which argues that for gaining universal acceptance, the philosophical underpinnings of the idea of human rights needs to be uncovered.
However, this thought is severly contested by another school of thought which argues that it is unnecessary to get into the debate of philosophical foundations. The premise of this argument is that the Miguel Vatter, Politico-Theological Foundations of Universal Human Rights: The Case of Maritain, Social Research, Vol. 80, No. 1, Political Theology? (SPRING 2013), pp. 233-260 world has already made huge progress towards accepting the idea of human rights and hence, any debate in this regard would be inconsequential.
The world is huge and complex. There are different types of political regimes. One finds monarchy, dictatorship, democracy, communist rule so and so forth. Protection and promotion of human rights is closely associated with the type of political regime in place. In addition to this, when we review in terms of culture, the world is not a homogenous place. How can one moral human rights doctrine have a universal applicability in the backdrop of tremendous diversity? These are few of the key questions that this module seeks to examine and address.
Need for Philosophical Foundations
As mentioned earlier, the human rights doctrine has gained a strong foothold in the world as a result of the numerous enactments under the aegis of the United Nations and other bodies. The body of international human rights law as it stands is very different from what it was 70 years ago.
This brief historical overview and context of the present status of the idea of human rights begs the question- whether it is at all fruitful to indulge in an exploration of the philosophical foundations. Philosophers and political theorists have been arguing for very long that the human rights theory needs to be strengthened with philosophical foundations.
It is well-established that several social movements and revolutions have contributed to the development of the current understanding of the idea of human rights. Although, it is said that the international human rights law has its roots in the western worldview, it is equally true that the notion of human rights has been enriched through the contributions of all parts of the world.
Therefore, the body of human rights doctrine, that we currently have, is a symbolic of the “overlapping consensus” around the notion of human dignity. It is but natural that there is a complex web of theoretical and philosophical underpinnings beneath this structure.
Each milestone in the history of development of human rights contributed towards the theoretical framework of the human rights doctrine. This is precisely the reason why it is even more difficult to arrive at a definitive conclusion as to what exactly is the philosophical foundation of human rights.
Even though there have been many contestations regarding the notion of philosophical foundations of human rights, the questions have continued to maintain their relevance. Do human rights have philosophical underpinnings? Is it necessary that they have one?
In this context, Jerome Shestack questions whether there is any need for identifying the philosophical foundations of human rights. Listing several reasons for such an enterprise, Shestack points out that there is better adherence to human rights law when one understands the moral justifications that underlie that law. It is also necessary for people across the world, with great diversity in terms of culture, to transcend these differences and speak to each other. Shestack is essentially encouraging conversation around this subject so as to advocate the universal recognition of international law principles.
Scholars like Sheshtak have long argued that addressing this normative question regarding the philosophical foundations of human rights is very critical. Such an enquiry calls for a large debate in the world which may or may not end up giving the rights answers. At several points in the history of the modern human rights doctrine, there has been a huge backlash against the idea of universality of human rights.
While there is one section which argues that the core human rights treaties constitute the de-facto “basic law” for the modern world, there is significant opposition to this idea as well. As a result of this contestation, the idea of cultural relativism took birth. Over the years, there have been several ups and downs with respect to the acceptance of this argument of the cultural relativists. However, the relevance is very much there and hence, there is a need to engage with them. The principal argument of the concept of cultural relativism
It is important to highlight here that the primary reason for the yearning of philosophical foundations is to advance the cause of universalism of human rights as a doctrine. It can only happen when the two factions of this debate, namely- the universalists and cultural relativists arrive at a normative consensus about the philosophical foundations. Sheshtack said the following behind the need to understand the philosophical foundations:
“How one understands meaning of human rights will influence one’s judgment on such issues which rights are regarded as universal, which should be given priority, which can be overruled by other interests, which call for international pressures, which can demand programs for implementation, and for which one will fight.
What is meant by human rights? To speak of human rights requires a conception of what rights one possesses by virtue of being human.
That does not mean human rights in the self-evident sense that those who have them are human, but rather, the rights that human beings have simply because they are human beings and independent of their varying social circumstances and degrees of merit.”
Essentially, Sheshtack is arguing that settling the debate around the philosophical foundations is extremely necessary so as to make the idea of human rights truly universal in nature.
The Discipline of Philosophy and Notion of Human Rights.
It is a widely held view that philosophy is a discipline which deals with abstract concepts. Much of the academic knowledge produced by this discipline is an outcome of rigorous intellectual discourse which seldom has any practical application for the real world. Human rights activists regularly raise this issue that indulging in a debate about the philosophical foundations does not serve the cause of the advancing human dignity. Rather, the human rights activists exhort the institutional and legislative mechanism to continue with the development of the human rights doctrine and take it to the level where all sections of the world can be brought under its umbrella.
The key difference of opinion between the two sections-human rights theorists and activists has been aptly articulated by Michael Freeman in the following words:
“The concept of human rights raises problems that are, on the one practical and urgent, and, on the other hand, theoretical and abstract. human rights proponents and academics whose work is oriented activism, the concept connotes the prevention of political murders, pearances,” torture, and unjust imprisonment. The concept of human also raises theoretical issues about the requirements of legitimate means and the nature of the good life. It is widely recognized that these dimensions of human rights work exist and should, in principle, integrated with one another. This integration, however, can prove difficult practice. For activists, the pressure of rescuing fellow human-beings actual and imminent injustice relegates theoretical questions priority. Those who look to philosophers and political theorists for once may be disappointed, for the theoretical disputation is inconclusive. Thus, there is a gap between human rights activism and theory.”
It is very much clear from the above quote that the activists do not attach much importance to the idea of philosophical foundations of human rights. Their primary focus has been to continuously advance the cause of human rights. Several theorists have made an attempt to bridge this gap between the activists and theorists. Jack Donnely has made significant contribution towards building this bridge with regard to this gap. Donnely has argued:
“Human rights can be grounded in a variety of comprehensive doctrines. For example, they can be seen as encoded in the natural law, called for by divine commandment, political means to further human good or utility, or institutions to produce virtuous citizens. During the past few decades, more and more adherents of a growing range of comprehensive doctrines in all regions of the world have come to endorse human rights-but only as a political conception of justice.
Human rights, in other words, have no single philosophical or religious foundations. They instead have many such foundations that converge (but do not perfectly coincide) on the rights specified in international human rights law. Christians, Muslims, Buddhists, Kantians, Utilitarians, and neo-Aristotelians come to human rights from rather different paths. Nonetheless, for their own varied reasons, these and most other leading doctrines today see human rights as the political expression of their deepest values.”
It is well known that for any political or philosophical theory to take the final shape, it is imperative to present a logically coherent argument. To arrive at a definitive conclusion regarding the direction of the concept, it is essential to take into account all possible contradictions. In any academic discipline, it is required that there are well-defined methods of conducting such debates and analysis. It is a common practice in academic traditions to create theoretical constructs that can assist the practitioners to conduct their analysis.6 With this quaint introduction to the discipline of philosophy, it is now appropriate to understand the conundrum related to the idea of human rights.
There are several attributes of the idea of human rights and each has its own set of ambiguities. Another challenge for theorists working on philosophical foundations is that the notion of human rights has been primarly justified through moral arguments which are more self-evident than explicable.
Sources of Human Rights
Having laid down the need for philosophical foundations and the discipline of philosophy, it is now appropriate to undertake the journey of understanding human rights from the point of view of moral foundations. The focus of this analysis is to understand the source of moral legitimacy for the idea of human rights. Also, the ambit and nature of human rights will be explored.
As argued earlier, the journey of human rights is replete with contributions of social movements across the world and even revolutions. Each step in the evolution of human rights has been taken in a differnet contextual setting. Therefore, an understanding of the moral foundations is necessary from that standpoint.
In this section, an analysis of the sources of human rights is undertaken with a special emphasis of understanding the philosophical underpinnings of human rights.
Before the dawn of modernity, religion was the guiding force behind political philosophy and hence, it had a huge influence on the development of the conception of human rights. While the exact term-human rights is not found in most religious texts, the underlying notion behind human rights has been deliberated in religious traditions across the world.
The idea of inherent value of human life and dignity can be traced to religious scriptures. While there is enough emphasis on the rights of an individual, the religious doctrine is particularly centered around the idea of duties. Therefore, there is a world of difference between the religious conception of human rights as opposed to the understanding of the human rights in the modern world.
2. Arguments based on Natural Law
Theorists and philosophers have often looked into the Natural Law to understand the philosophical underpinnings of the idea of human rights. From ancient times to medieval times, philosophers from different parts of the world have articulated and emphasized the elementary principles of justice which are embodied in Natural Law.
John Locke is said to have given flesh and blood to this understanding of the human rights. John Locke said the following with respect to the natural law foundations and existence of human beings in the nature:
“In that state men and women were in a state of freedom, able to determine their actions, and also in a state of equality in the sense that no one was subjected to the will or authority of another. However, to end the hazards and inconveniences of the state of nature, men and women entered into a “social contract” by which they mutually agreed to form a community and set up a body politic. Still, in setting up that political authority, individuals retained the natural rights of life, liberty, and property. Government was obliged to protect the natural rights of its subjects, and if government neglected this obligation, it forfeited its validity and office.”
The most outstanding milestones in the history of human rights- the French Declaration of the Rights of Man9 and the American Declaration of Independence10 are a testament of the contribution of natural law in the foundation of human rights.
The whole idea of inalienable rights is an outcome of the Natural law theory only. However, the trouble has been that it is difficult to specify the normative framework that supports this idea.
Again the challenge of understanding the philosophical foundations through this school is that it becomes difficult to explain the self-evident nature of the claims which are naturally inexplicable. The natural rights theory came with a set of assumptions which were not likely to remain constant in a dynamic world and hence, this theory met with a lot of criticism on account of being highly contextual.
3. The Claims of the Positivists
The Positivists school opposed the Natural law on account of source of legitimacy of the theory of rights. It argued that a claim for legitimacy has to come from the state and then only it can have any authoritative value. Therefore, the primary source of human rights for the positivists could be discerened only through formal enactments of the law.
The Positivists school created a distinction between the different claims of legitimacy for a theory of human rights. This understanding found acceptance in developing the international framework of human rights. Although the positivists school of thought gives primacy to national sovereignity in determination of law, the whole international framework of human rights is premised on several enactments.
Therefore, it can be seen that the positivist school provides a significant contribution to the current conception of human rights. However, the contradiction regarding primacy of national sovereignity has given rise to a serious challenge to the idea of international human rights. As a result of which, the states have reserved the prerogative of giving the final shape of human rights to themselves.
4. Marxist Conception
The Marxist thought was apprehensive of the idea of human rights in its modern form for the simple reason that there was nothing natural or inalienable about the idea of human rights. The Marxist conceptualization of human rights precluded the idea of individual rights and made them contingent upon the fulfillment of obligations to the state and the society.
5. Sociological Understanding
The sociological approach laid enormous emphasis on arriving at a equilibrium of interests with regard to the prevailing moral, social and economic conditions. The sociological school looks for factual premises for having an interest before giving legitimacy to the notion of human rights.
6. Utilitarian Perspective
Classic utilitarianism, the most explored branch of this school, is a moral theory that judges the rightness of actions affecting outcomes in terms of securing the greatest happiness to all concerned.11 The Utilitarian perspective also gave significance to the idea of human rights. However, it failed to recognise individual autonomy12 and for these reasons it was held to be insufficient to explain the philosophical foundations.
Briding the gaps in the theoretical and philosophical foundation of human rights
It can be seen from the above discussion that it is enormously difficult to arrive at a definitive understanding of the human rights from a philosophical point of view. The competing principles contributing to the narrative are equally justified in their own particular context and therefore, they need to be reconciled.
Jack Donnelly has done a lot of work in this direction. Donnelly argues that owing to the current status of the universality of human rights, the debate around the philosophical foundations of human nature is more relevant rather than that of human rights. He argues that given the wide acceptance of human rights as a universally applicable concept, the philosophical debate is not as relevant as it used to be prior to the enactment of international human rights treaties. Today, a major section of the world has accepted the idea of universal human rights. Moreover, the present framework of the international human rights regime is the most inclusive form of international law-making. The testament of inclusiveness can be seen from the contribution of non-western socities in the current framework. For instance, the UDHR provides “references to economic and social rights that are not included in [most] Western documents on human rights.”
In conclusion, it must be said that the mankind has made enormous progress in adopting the current framework of human rights. The debate around the search for philosophical justifications may continue in the years to come but this debate should not be conducted in a way which inhibits the growth of international human rights law.
Summary
In this module, the focus was to understand the philosophical foundations of the idea of human rights. The discussion emanated from an analysis of the various sources of moral foundations of human rights to the idea of reconciling the differences in the debate.
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Reference
- Henry J. Steiner, Philip Alston, Ryan Goodman (eds.), International Human Rights in Context, (Oxford University Press, 2007)
- Thomas Cushman (ed.), Handbook of Human Rights, (Routledge, 2012)
- Jack Donnelly, Universal Human Rights in Theory and Practice, (Cornell University Press, 1989)
- Michael Freeman, Human Rights, (Polity Press, 2012)
- John Locke, The Second Treatise of Government (1952)
- Joseph Raz, The Morality of Freedom 267-87 (1986)
- John Rawls, A Theory of Justice 187 (1971)
- Miguel Vatter, Politico-Theological Foundations of Universal Human Rights: The Case of Maritain, Social Research, Vol. 80, No. 1, Political Theology? (SPRING 2013), pp. 233-260
- Francis Deng, “A Cultural Approach to Human Rights Among the Dinka,” in Abdullahi Ahmed An-Na’im and Francis Deng, Human Rights in Africa: Cross-Cultural Perspectives (Washington D.C.:, Brookings, Institution, 1990) at 261.
- Jerome J. Shestack, The Philosophic Foundations of Human Rights, Human Rights Quarterly, Vol. 20, No. 2 (May, 1998), pp. 201-234
- Michael Freeman, The Philosophical Foundations of Human Rights, Human Rights Quarterly, Vol. 16, No. 3 (Aug., 1994), pp. 491-514
- Serena Parekh, Resisting “Dull and Torpid” Assent: Returning to the Debate over the Foundations ofHuman Rights, Human Rights Quarterly, Vol. 29, No. 3 (Aug., 2007), pp. 754-778
- Leonard Swidler, Religious Liberty and Human Rights: In Nations and in Religions (1986)
- Declaration of the Rights of Man and of Citizens (France 1789)
- The Declaration of independence (US 1776)