Human Rights

An Introduction

Darren O'Byrne

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317873976
• Edition: 1
• Topic: Politique et relations internationales
• Subtopic: Politique

Human Rights: An Introduction is an important text that provides a comprehensive overview of human rights and related issues from a social science perspective.

First, this book does more than discuss theory, it uses case studies and personal testimonies in the debate. Human rights as an area of academic interest cannot be easily divorced from human rights struggles and the reality of contemporary conditions.

Second, the book is aimed at what is an emerging and growing cross-disciplinary field of study. Human rights issues are increasingly coming to the fore in a number of academic debates. Whereas the study of human rights has traditionally been included in departments of law, international relations and philosophy, a number of courses are now being set up in departments of sociology and anthropology. Consequently, there is an increasing need to bring these disparate approaches together.

CHAPTER ONE

Theorising human rights

● What are human rights?

In 1948, the Universal Declaration of Human Rights was signed by the member states of the United Nations. For many, that document was the single most important of the twentieth century, for it lays down certain claims regarding the rights of all peoples around the world, and formalises them within the framework of international law, albeit in a suggestive, rather than legally binding, manner. Over 50 years on, however, we are still faced with a world which does not fully recognise the claims made in the Declaration. Human rights abuses continue in nation-states across the globe. Western democracies preach the observance of human rights regulations to non-Western nations whilst blatantly ignoring them at home. The world of international relations is still as chaotic and competitive as it was before 1948; only it has become more hypocritical.

Why this document was signed, what its claims are, and why it has not succeeded in eradicating human rights abuses around the world, are the subjects of the next chapter. Before we discuss any of these, though, we need to understand exactly what we mean when we talk about human rights, a term that is used frequently and understood rarely. Indeed, very often when we hear human rights discussed, we find that what is actually being discussed is citizenship rights, or civil liberties. To avoid confusion, we should bear in mind that civil liberties are those rights which are not legitimated according to some universal feature of humanity; instead they are rights only in so far as they are allowed by the state, they are ‘granted from above’. Citizenship is often defined in terms of a reciprocal relationship between an individual (the citizen) and the machinery of political administration (the state), and the terms and conditions of this relationship – the rights and duties –are enshrined in positive law. Accordingly, they differ across time and space. Human rights, by contrast, come from ‘below’, from a universal set of ethical principles which seek to ensure the equal worth of each individual life, and which are applicable to all peoples at all times and in all places. Thus, in principle, if not in practice, they are not subject to the whims of any political machinery.

This seems at first glance to be a simple distinction, but as this chapter progresses, it should become clear that it is far from it. I want to divide the remainder of this chapter into the following sections. First, I will offer a brief history of the idea of human rights, partly as an overview and partly as an introduction to some of the major themes and names that will reappear throughout the book. Second, I want to look in more detail at the three claims which are made about the properties of human rights, namely:

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■ Human rights are universal, that is, they belong to each of us regardless of ethnicity, race, gender, sexuality, age, religion, political conviction, or type of government.

■ Human rights are incontrovertible, that is, they are absolute and innate. They are not grants from states, and thus cannot be removed or denied by any political authority, and they do not require, and are not negated by the absence of, any corresponding duties.

■ Human rights are subjective. They are the properties of individual subjects who possess them because of their capacity for rationality, agency and autonomy.

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Each of these properties can be analysed in terms of the problems which arise from it. So, the claim that rights are universal has been subject to criticism from those who suggest that universality is too reliant upon the meaningless abstract notion of natural law, as well as from those who argue that it is ignorant of cultural difference. Similarly, the claim that rights are incontrovertible forces us, in the first instance, to devise a hierarchy of rights to overcome any potential conflicts, and also to counter any suggestion that rights always require reciprocal duties. Also, to claim that rights are subjective requires us to consider the thorny topic of human rationality and agency, and then, since active subjects are usually individuals, to assess the charge that human rights betray a Western bias towards individualism.

Third, I want to make the link – an important link if human rights are to be upheld in practice – between the idea of human rights as a moral convention and that of ethics as a social practice.

Fourth, I will discuss the extent to which the current discourse on human rights is interwoven with the discourse on social change, and in particular modernity, which invariably connects this discourse with the development of the social sciences.

● A brief history of human rights theory

The discourse on human rights may be a relatively modern creation, but the ideas that underpin it can be traced back at least as far as the classics, if not before. Indeed, most ancient religions included codes of practice which might be interpreted as implying certain rights, even if these were largely stratified. Ancient and classical philosophers also contributed to this discourse. The Enlightenment allowed for a renewal of secular moral universalism, and it is from these roots that we can trace the evolution of the idea of human rights recognisable today.

Classical origins of human rights thinking

Although it is not easy to find, in the ancient and classical scholars, a clear precursor to current thinking about human rights which might be recognisable to us, various strands of thought did originate in the philosophical and dramatic writings of these commentators. For example, the playwright Sophocles (495–406 BC) provided an early defence of the individual's right to resist state repression.¹ Plato (427–348 BC) developed an early version of universalism in ethical standards, implying fair treatment to all persons, whether they are citizens or not. Aristotle (384–322 BC) discussed the importance of virtue, justice and rights in accordance with the political community. The Greek Stoics and their Roman counterparts, notably Cicero and Seneca, were keen to talk about being citizens of the world. For these commentators, wise and rational men belonged to a universal community of world citizens. Cicero (106–43 BC) provided the philosophical foundations for later theories of natural law, when he advocated a general set of universal principles which should transcend local civil laws.

Early versions of human rights thinking can also be found in various religious texts. Geoffrey Robertson makes the useful point that one can read the Ten Commandments, which were intended to be applied universally as rules for moral and spiritual behaviour, as implying certain basic rights. For example, ‘Thou shalt not steal’ seems to suggest the right for individuals to own private property.² Much later, the religious universalists such as Aquinas and Augustine talked about the equality of people before God, thus affirming universal laws but again, not explicitly in the context of rights. Thomas Aquinas (1225–1274) believed that human dignity and value are innate properties which are validated according to natural law. Aquinas based this on his understanding of the Christian faith. Similar readings can be offered of other religious texts and credos.

Both traditions – the classical philosophers and the religious universalists – can be understood in terms of their contributions to the history of the idea of world citizenship, which of course is not easily separated from the history of the idea of human rights. However, we should not dwell too much on these contributions in this volume.³ Instead, we should turn to the more direct origins of human rights thinking, in the works of the European Enlightenment philosophers.

Natural law and the ‘state of nature’

In medieval and early modern Western philosophy, much discussion of politics had centred around the divine right of kings. According to this concept, only monarchs held their place in society by nature, and according to the will of God. All other individuals were subservient to the monarch. The only power they had over their own lives was that which was granted them by the monarch. These ideas were articulated, and challenged, via a meticulous analysis of what would constitute a pre-social human nature, by Thomas Hobbes (1588–1679) in his Leviathan, published in 1651. Hobbes claimed that humans are, essentially, violent and greedy animals, and that in their natural state they live in a world of anarchy. However, out of a strong desire for self-preservation, in order to protect themselves and ensure their personal security, they come together to establish a set of rules. The King (or indeed the modern state) is the manifestation of these rules. Individuals surrender their personal freedoms to the state in return for the security it offers. Thus, the King (or the state) is granted the right to rule, while the needy subjects (or citizens) have a duty to obey. This is the basis of what Hobbes (and subsequent writers) called ‘the social contract’. Hobbes's work was a masterpiece of political philosophy, although it has received unfair treatment from those who claim that it justifies an authoritarian state. In fact, Hobbes's defence of the King's right to rule was radical because, by appealing to some pre-social conditions and essential human nature, he justified it according to the consent and basic needs of the people. In effect, while Hobbes was arguing for the right of the monarch to rule, he was also claiming that the individual subject has the basic right to security, and that the state itself is formed out of a recognition of this basic right. Indeed, the legitimation of the state derives from its ability to ensure the security of its citizens. If it is unable to fulfil this requirement, the people still have the power to overthrow it.

When judging Hobbes's contributions, we should also bear in mind that the political situation in Europe at the time he was writing was nervous and uncertain. The power of the monarch was under attack from parliamentarians dedicated to establishing a system of government guided by the people. Even more significantly, the Dutch jurist Hugo Grotius (1583–1645) made the first significant case for the establishment of international laws to protect all citizens of the world. The laws of each nation-state should, he claimed, be measured against this standard of international law, which should primarily be applied to prevent the proliferation of unjust wars between states.

Hobbes had indicated that humans had an innate right to security from the state. Grotius based his beliefs on a moral commitment to international justice. It was John Locke (1632–1704), still working within this contractarian tradition, who first suggested that there are such things as natural rights: rights which are ours by virtue of the fact that we are human. According to Locke, these rights are shared by all people; they are inalienable, and cannot be removed by any political authority. Locke set himself the task of attacking Hobbes's defence of the legitimate rule of kings, while celebrating the establishment of the Bill of Rights. In his Second Treatise of Government, published in 1690, he used the same methodology as Hobbes but inverted his predecessor's conclusions. Rather than rely upon an image of pre-social human beings as warlike, greedy and violent, and in need of a strong state to ensure security, he claimed that in such a state of nature humans are ...