The rise in prominence of human rights in contemporary liberal capitalist societies is perhaps one of the most important ideological and political facts of the 20th century. As a relatively new foundation of human order, human rights have attained a position of immense power. Through various bodies, and under the façade of being ‘self-evident’, a poorly disguised set of Western values are enforced around the world. States are prompted to change their constitutions and fundamental laws in accordance with a set of norms and standards – namely, democracy, human rights and the rule of law – or to face international sanction. As a political and economic mechanism, human rights have become sacred in nature and, as a consequence, beyond criticism in many spheres of society. To challenge the ideology of human rights is to question the foundations of this theory, to query the nomological status of these rights, to evaluate their application and to examine the possibilities of manipulation to which these rights can be subjected.
Before such an examination can begin, it is pertinent to briefly contextualize human rights and to place them within their larger legal and theoretical framework. This is to elucidate what is at issue, and to create the basis for the focus of this examination. Political or civil rights differ from human rights in that they belong to certain kinds of political institutions. Rights of this kind operate within a given society to provide assurances for ordinary individuals. They act to legally constrain the actions of the government and provide a facility for making legal claims in a country’s courts when these rights are infringed upon. They are internally constructed and depend upon the society in which they are established. This is not to say that these rights are not often based upon, or influenced by, a particular conception of human rights. Indeed, numerous human rights and national rights documents are complimentary positivizations of the same idea. However, the consequences of the violation of politically constructed civil rights differ significantly from that of the violation of a human right. For example, judicial review of administrative action for the violation of a right in the first sense in contrast to the use of an extraordinary remedy for the violation of a right in the second sense (military intervention). Although there are undoubtedly more approaches to the study of and justification for human rights, I shall focus my attention on just two of the most popular conceptions. These are the traditional and the political conceptions of human rights.
Let us begin with the traditional conception of human rights. Here, human rights are defined as rights which rely on no contingent fact except for the laws of nature, the nature of humanity and the fact that the right holder is a human being. These are innate rights, thought to be inherent in human nature, that have existed in every individual before the development of social relations. That is, they are subjective attributes of every human and are pre-political and pre-social. They are necessarily individual in nature and constitute the privileges which the agent that possesses them can enjoy. Prerogative of all humans, they are independent of space and time, are valid at all times and in all places and independent of personal conditions, political situations and historical attributes. By their very definition they are universal and inalienable. As such, no state can abrogate them, create them or grant them. This approach aims to derive human rights from basic features of human beings. In creating a normative list the traditionalist is confronted with numerous problems. I shall focus on two of them.
First, the traditionalist blurs the lines between that which is considered valuable and that of a right. In doing so, he misconstrues the relations between the values and the rights he seeks to uphold or create. Simply put, the traditionalist argues that because something is greatly valued or desired by society, we must claim a right to it. This presupposes the fact that that which is desired by society is not subject to change. This may sound counterintuitive but a study on culture and moral development around the world has shown that certain moral themes are recurring in these societies. According to Steven Pinker, and on the basis of this study, there are five primary moral spheres on which we base our actions. These are harm, fairness, community, authority and purity. Clearly the traditional approach would be supported by the fact that humans, around the world, share certain moral norms. However, one should note that this study was confined to the Indian city of Bhubanesewar and Hyde Park in the United States. This hardly constitutes a worldwide study. Furthermore, Bhubanesewar forms part of the “Golden Triangle” and is one of India’s most frequented destinations. This, coupled with the fact that it is one of India’s fastest-developing cities, places the study in the appropriate context. As noted above, it would certainly adds substance to the traditionalist’s case if it were the fact that humans share general moral norms but, to place certain moral elements as “primary”, as Pinker does, a more systematic analysis is required. Surely more is required than a poll and one, it should be noted, that does not make its principles of interpretation explicit. Furthermore, Pinker’s examples do not make room for the more complicated questions regarding morality which, in turn, would allow for a more in depth analysis and comparison of the content of general morals in different regions. For example, Pinker claims that one of the hallmarks of moralization is that people feel that those who commit immoral acts deserve to be punished. As a consequence, it is allowable to inflict pain on those who commit an immoral action. In fact, it is wrong not to do so. On this basis, a more interesting question, it is submitted, would have concerned the morality of state execution or, alternatively, questions pertaining to the morality of allowing prima facie immoral actions to be committed against persons who have acted immorally. Furthermore, one can readily accept that the content of certain rights or freedoms have changed throughout history. For example, certain primitive societies did not consider the abandonment of the infirm or elderly to be murder, nor did they consider exposing their new-borns to the elements to be murder. Addressing these questions would determine whether, in contemporary societies, the content of such rights are, likewise, subject to change. Aside from this, there may be a more logical approach to Pinker’s study: Societies that did not adopt these ‘moral’ guidelines failed to progress as a society and, as a result, perished. These principles may simply lead to the most efficient structuring of society and those that failed to adopt them were unable to properly structure their societies, unify and defend themselves against more ordered societies.
If one were to accept that that which is considered valuable by society is subject to change then the reasoning of the traditionalist fails for human rights, in the traditionalist sense, are said to rely on no contingent factors and are independent of the norms of society. But this argument fails on another ground. In attempting to derive an inherent right from that which is considered valuable, the traditionalist fails to show why, because something is considered valuable, it establishes a right. Gewirth, in attempting to create a foundation for human rights based on agency, thinks that in voluntary and purposive action, every agent must consider freedom and well-being as necessary goods. He believes that there is a general right to freedom because it is a necessary condition of human purposive action. This claim is clearly false as it would mean that slaves cannot act purposively. Furthermore, those who are not in a position to act purposively (the infirm or elderly) would never be in a position to attain or utilize such a right.
Another advocate of the traditionalist conception, Griffin, takes human rights to be those important rights that are grounded by the fact that we are human. He claims that because humans have a conception of ourselves and of our past and future, we are different from other animals. Human rights are therefore the protections of human standing or, as he puts it, personhood. The notion of personhood is broken down into three components. First, to be an agent in the fullest sense, we must not be dominated or controlled by something else; therefore, his first argument is for autonomy. Secondly, he argues that one’s choice must be real; one must have a certain minimum education and information and, following this, one must have the minimum resources to act in accordance with this choice. He calls this the minimum provision. Finally, he argues that one must be able to pursue what one deems worthwhile without being forcibly stopped. He calls this liberty. Griffin’s theory relies not only on the fact that people value their personhood but that it is valuable. However, he fails to offer any convincing reason as to why that value establishes a right. This is not the only problem that confronts his theory. Take, for instance, the first condition. By Griffin’s reasoning, a person who is controlled by his commitment to his employer does not enjoy the full status of personhood. Now, one could argue that exercising a contractual right to limit one’s own freedom is, in fact, the highest form of freedom. The validity of this argument would depend on the interpretation of the claim. The first interpretation would be that, in limiting one’s freedom one is unrestricted and what occurs after that is irrelevant as one has utilized full contractual capacity. That is, by choice, one has restricted one’s self. The second interpretation would regard what follows, that of having limited one’s own personal liberty and autonomy and the inability to escape such commitments as being the focus. As a consequence of exercising such a freedom one is now limited and cannot exercise a similar freedom until the initial commitments are met. As a result, one has a diminished personhood. It is submitted that the second interpretation is correct. Logically, it makes sense to examine the consequences of exercising the freedom, rather than simply the initial action.
Another issue confronts the second component of personhood: the minimum provision. For freedom of choice to be real, by Griffin’s reasoning, one must have a certain level of education and resources in order to enact said choice. It follows that those who have only a ‘pseudo-choice’, such as the choice offered to the adolescents of Amish communities after Rumspringa, have a diminished personhood. It is logical that a large majority, unable to cope, would return to Amish society. Thus, as a consequence of social conditioning and the fact that they are brought up in virtual ignorance of the excess of American society, Amish youth have what Žižek refers to as the “unfreedom of choice”. That is, while they are formally given a free choice, the conditions in which they must make such a choice render the choice unfree. By Griffin’s reasoning, this is a violation of the minimum condition, therefore, a human right. It seems readily apparent that Griffin is conflating the notion of personhood with his particular conception of a good life.
That human rights are independent of space and time, are valid at all times and in all places requires further examination. Clearly, the argument proposed requires human rights to be rights that we have and not that we think we have. Take, for example, European early modern humans. For this argument to hold true, we must be able to attribute what we characterise to be human rights today to an early modern human forty thousand years ago. Regardless of the circumstances of his human life and societal construction (if any), the rights that we hold to be valid today must have application then. Admittedly, one must concede that human rights-claims are normative rather than descriptive in nature but we are not examining how early modern humans were treated, rather, how they ought to have been treated.
Even accepting this it seems absurd to attribute such rights to a people who lived in such a distinctly different environment and with such a limited field of knowledge. The General Assembly of the United Nations has declared, inter alia, that everyone has the fundamental and universal right to work and protection against unemployment. The rights to work and to protection against unemployment presuppose modern institutions and the state. Quite obviously this cannot have applied to Cro-Magnons and early modern Homo sapiens who existed in a time where the state (the institution intended to protect against unemployment) did not exist, nor did any such conception of it. One could broaden the scope and argue that, since time immemorial, we have had the right to the state and that, as a consequence of this, all of the rights simply flow once the state has been established. Aside from the considerable amount of proof that would be required to prove such a thing, it seems strange that throughout the existence of mankind these rights have existed, only to be realised after thousands of years. Simply put, it does not make for a compelling argument.
This problem has not been diminished by time. The fact is that this issue is still relevant today where creating a normative list, in the face of such diversity of cultural, societal and economic environments, seems insurmountable. The problem becomes most evident by the fact that although there have been a multiplicity of human rights declarations, not all of these stress the same rights (some stress certain rights over others, others add duties etc.). In fact, these declarations are not even founded upon the same principles.
The Western conception of human rights, that is – one that takes account of individual rights – is hardly one shared by the rest of the world. This includes countries that adopt charters and declarations regarding so called fundamental rights. A clear example of this can be found upon an examination of the Universal Islamic Declaration of Human Rights. In its Preamble, the declaration announces that “Therefore we, as Muslims who believe a) in God, the Beneficent and Merciful , the Creator, the Sustainer, the Sovereign, the sole guide of mankind and the Source of all Law.” The declaration goes on, clearly basing itself on religious grounds and making further reference to the Prophet Muhammed, divine guidance and the obligation to create an Islamic order. Basing universality on a certain religious doctrine does not make for a compelling argument, particularly so because the set of values are supposed to be valid for the entire world. Clearly the universality that is referred to here is quite different from the Western conception of universality as found in the European Convention of Human Rights or the Universal Declaration of Human Rights, both of which cautiously avoid any such references to God. Universality properly so called – namely that of individualist, secularised societies – is the universality referred to by the West when such claims concerning human rights are made. It is this model alone that is promoted and offered to the rest of the world, often as an overriding principle. But even within this model, the application of human rights can be seen to be internally contradictory. Take, for instance, the laws concerning abortion in France. Since 1975, French law has guaranteed the right to abortion but in 1994 France adopted a text on bioethics in the National Assembly which prohibits the experimentation on embryos, alleging the need for “the respect of the human being from the commencement of life”. If the embryo is not a human being, why would one be prohibited from experimenting on it? If it is, abortion cannot be justified. It seems apparent that, at least in this context, human rights are becoming more of an “all-purpose expression”, having an ever changing meaning that one attributes to them depending on the circumstances of their invocation.
Having scrutinized the traditionalist conception of human rights, it is necessary to examine the political conception. That is, human rights as visualized by Joseph Raz and John Rawls. However, before an examination is undertaken, it is pertinent to make a few preliminary remarks about the content of these writers work. Although Raz and Rawls may both be defined as advocates of the political conception, they are not always in agreement. It is therefore appropriate to examine these writers individually. For the purposes of this inquiry, the political conception of human rights is defined as rights which set limits to the sovereignty of states. A violation of said rights, or the anticipated violation, is a defeasible reason for taking action against the rights violator by the international community. Sovereignty, in itself, did not justify any such violation of what we now deem to be ‘human rights’ but it protected the states from external interference. A violation of human rights now disables any appeals to state sovereignty in order to rebuff international intervention.
Human rights, Rawls tells us, are a class of rights that play an important role in a sensible law of people. These rights limit the justifications for war and its conduct, and they specify limits to a regime’s personal autonomy. On this, Raz and Rawls are in agreement. However, Rawls claims that human rights are necessary conditions of any system of cooperation. If these rights are regularly violated, we have command by force, a slave system and no cooperation of any kind. Social cooperation, argues Rawls, acts to fulfil fair terms of cooperation and mutual advantage, it is always for mutual benefit and every participant can be reasonably expected to accept these terms, provided that everyone else accepts them. All who cooperate must benefit or share in common benefits. As a consequence of this, Rawls creates a numerus clausus of human rights. Amongst others, the right to life, to liberty, to property, and to formal equality are human rights. In The Law of Peoples, Rawls extends his hypothetical social contract to apply beyond the individual state. In doing so, Rawls modifies it so that the parties that choose the law of the peoples are representatives of peoples – and not the individuals. Peoples, in the Rawlsian sense, are groups that are united by “common sympathies” and who have a shared sense of justice or conception of the good. Rawls imagines an international “original position” in which all reasonable liberal peoples are represented. Liberal peoples are defined as having a basic structure that includes a constitutional regime that respects certain basic rights and liberties equally and for all citizens. Furthermore, it gives protection of these rights and liberties preference over the claims of the social good and assures that all citizens have access to the primary good required to make productive use of these freedoms.
An important criticism of this approach is that, in saying that the parties represent peoples, one is propagating a view in which the fundamental principles of international law that will be chosen will reflect the interest of those who support the dominant or official conception of the good or of justice in society. As a consequence of this, the interests of dissident individuals or minorities are utterly disregarded. Aside from having dominant societal views as representatives of the people, a number of criticisms can be levelled against Rawls’ theory. First, like the traditionalist, Rawls fails to scrutinize the relationship between values and the rights he argues for. Although Rawls accepts that not all wrongs committed constitute a violation of human rights, he fails to distinguish human rights from other forms of rights or values. Rawls creates a list of principles which, it is claimed, would be readily accepted by reasonable peoples. Anticipating criticism that his principles are purely Western in nature, Rawls creates a “second original position”. While the first original position represents the perspective of decent liberal peoples, the second represents the perspective of decent nonliberal ones. A decent people satisfy two conditions. First, the society in question does not have aggressive, interventionist aims in foreign policy and respects the sovereignty of other societies. Second, the society has a common good conception of justice. Each person’s interests must be taken into account, public decisions and basic human rights are secured for all, people are treated as the subjects of legal rights and duties and judges accept and apply the common good conception of justice in carrying out their public responsibilities. Rawls accepts that there will always be some degree of cultural diversity and that this will be represented by a diversity of political forms, many of which may be incompatible with his first original position but still satisfy conditions that justify their recognition as cooperating members of international society. Although, as a list of liberal aspirations, this sounds quite compelling, it exposes a contradiction in Rawls’s approach. The veil of ignorance, at least in A Theory of Justice, is said to screen the choice of principles from the influence of any variable elements, including any conceptions of good. This cannot be reconciled with the creation of a second original position which takes account of cultural, political and social differences. Finally, it does not follow that a society that does not respect the human rights listed by Rawls rules by force. It would be absurd to consider a society which does not and has never recognised the right to private property as a society which rules by force. The society may have communal property, owned by the clan and utilized by all. Would this society not enjoy social cooperation?
Raz, as an adherent of the political conception of human rights, is in agreement with Rawls as to the definition of human rights. That is, human rights operate to limit the sovereignty of the state. However, Raz argues that human rights are moral rights held by individuals. These moral rights attain the status of human rights only when the social and political organization of a country make it appropriate to hold the state to have a duty to protect these rights. That is, they are contingent rights and lack universality as they exist only when certain conditions are met. If these conditions are met, the individual attains a moral right. If these conditions are met throughout the world, then the right becomes a human right and the state does not enjoy immunity from international intervention if it violates such a right. Using education as an example, Raz argues that the relevant interest of the right-holder is to be equipped with the skills and knowledge which will enable him to lead a rewarding life. This is dependent upon the conditions in which the individual finds himself. If formal education is required to meet this interest in the society, the individual attains a right to it. Raz offers a conception of human rights that lack a foundation (in that they are not grounded in a fundamental moral concern) but, he claims, enjoy rational justification.
Having alluded to it above, it seems pertinent, at this point, to address what I have termed the internal inconsistency of human rights. In contemporary society, we view and identify rights in general terms – the right to life, the right not to be tortured and so forth. If, as Raz argues, the designation of human rights should depend on an all-things-considered-approach, this general approach to human rights must be rejected. Instead we must examine human rights and the appropriateness of intervention on a situational and conditional basis. The problem here is that, all-things-considered, we may have the right to free-speech-in-Kosovo in 2003 but what we would usually identify as that same right may not prove to be a human right in 2015. Furthermore, it seems strange to define such a regional set of rights as ‘human’ when the general discourse of rights has created the impression that human rights have a more settled basis. Jeremy Waldron argues that a conception of human rights that relies on contingent and situational factors is counterintuitive as it allows for too many factors to influence the relevant judgment. He argues that, because of technological advancement, humanitarian intervention is easier. As a consequence of this, it is appropriate to consider a wider range of cases as potential human rights violations. He infers from this that certain rights become human rights which were previously not, simply because it is easier to intervene upon their violation. However, this criticism seems misplaced. Raz does not argue that human rights are contingent upon the ability of other states to intervene upon their violation. Whether they have a right to intervene seems to be independent of any such ability to do so.
Rights, in terms of the political approach, only fall into the “special” category of human rights if their violation warrants the suspension of a state’s sovereignty. Regardless of the approach taken, whether it is traditional or political, almost everyone will accept that when an individual is tortured, a human right is violated. However, it is unlikely that one would accept that when just one individual is tortured, humanitarian intervention and the suspension of the state’s sovereignty is justified. Accepting this, Rawls writes that any systematic violation of these rights is serious in nature. He later adds that the principle of non-intervention does not apply when the serious violation of rights has become endemic in the state concerned. That is, human rights are a matter of international concern when a society fails to respect its people’s rights on a sufficiently large scale. Similarly, proponents of humanitarian intervention argue that the threat or use of force across borders by other states is aimed at preventing or ending widespread violations of human rights.
Raz, who prides himself in having offered an account that highlights the importance of individual rights, seems to be disillusioned. The approach offered highlights only the importance of a large cluster of rights violations. This only helps to further complicate the matter as we cannot infer from the fact that something is part of a cluster of human rights that are being violated that it is itself a human right. This is because if one does infer such a thing, it may imply that the violation of the individual right is in itself a justification for intervention. One could, perhaps, argue that this approach may embrace the individualism of human rights if one assumes that a single rights violation is a defeasible ground for intervention, which Raz does. However, such a case would rarely result in an actual intervention until it is accompanied by hundreds of other such instances. This would restore the normativity of human rights but this normativity would only be minimal. As a consequence, individual human rights lose their trumping importance and the relevance placed on them is considerably diminished.
Whether one accepts human rights as inherent and universal or as rights which enjoy rational justification, the manner in which these rights are applied often creates a cause for concern. In Europe, during the period of transition for many of the former Soviet states, human rights were invoked in order to promote what is often referred to as “democratic conditionality”. The European Commission for Democracy through Law acted to assist the former Soviet states change their constitutions and fundamental laws in accordance with the European norms. This was done by respecting the standards of the European Council, with a focus on democracy, human rights and the rule of law. In contemporary times we are witnessing much the same influence wielded by the European Court of Human Rights which is working to ever further its definition of what constitutes a real democracy. The Court, by setting the main standards of democracy, is increasingly affecting the constitutional laws of European states, so much so that it risks breaching their independence.
This is not to say that human rights should be abandoned or that their importance is overstated. It goes without saying that human rights play an important role in the law of nations and that they provide both a foundation for the good practice of states and recourse for the people within those states. Rather, I have argued that we should not overlook the foundations of such rights and, further, that these rights are not beyond scrutiny or criticism. The foundations of human rights are not without contradiction, neither are they as obvious as one would expect from such a demanding ideology. In fostering debate about the nature of such rights, their origins and the source of this “special” category of rights we may better understand the nature of the global community and the potential for interaction between the members of such a community.