Philosophy of Human Rights

A Systematic Introduction

Anat Biletzki

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9781138787346
• eBook ISBN: 9781317661023
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

An introductory text to the philosophy of human rights, this book provides an innovative, systematic study of the concepts, ideas, and theories of human rights. It examines the principal philosophical issues that arise in specific areas of rights, such as women's rights, minority rights, or disability rights, and addresses the human rights aspects of world problems such as global poverty and humanitarian intervention. Along with the presentation of these established subjects, the book provides a vibrant critique of both the liberal fundamentals of human rights and the legal and political aspects of the concrete practice by individuals and organizations.

Key Features:

• Presents a thorough philosophical introduction to human rights for anyone from any subject (e.g., international law, politics, public policy, philosophy).
• While grounded in philosophy, demonstrates a clear, organized understanding of real-world aspects of the field, with a deep analysis of vital, current issues.
• Is attentive to critical stances on human rights and to stultifying privations in the field.
• Offers a well-organized overall structure, moving from historical treatment, to conceptual analysis, to a set of current issues, and finally to criticism.

Part I

Overview

1 Fundamentals

Human rights are the rights human beings have by virtue of being human. Although this claim seems simple enough, even superficial, perhaps even tautological, it is – as we shall see in this book – a statement that holds many philosophical questions. Just to begin with typical philosophical, conceptual questions, we might ask: What does it mean to be human? What is a right? What does it mean to have a right? And, finally – what is hiding behind that phrase “by virtue of”? In other words: what is it about being human that entitles us, as human beings, to something that is due precisely, exclusively, and universally, to human beings?

The conversation about human rights has various beginnings, but it is usually seen as starting in the middle of the twentieth century. Indeed, the story of human rights is typically told in the context of twentieth-century history and, more exactly, against the background of that most egregious of human tragedies, the Holocaust. It is after such atrocities as were perpetrated in the Holocaust, we are told, that the community of humankind awoke to the realization that a fundamental obligation had been breached, allowing humanity to perform actions which are absolutely prohibited. The search for the basis of that fundamental obligation led naturally to the concept of human rights. And that conceptual basis just as naturally resulted in what some have called the bible of human rights: the Universal Declaration of Human Rights of 1948.

This is not to say that our discussion here will start there – in 1948. In fact, since we are intent on asking conceptual, philosophical questions about human rights, there are several different ways of marking the beginning of the discussion. First, one can reject any chronological or historical perspective on human rights and aspire to be purely “analytical.” This would mean that we propose to analyze the concepts “human” and “right,” and pretend that we can provide a satisfactory understanding of human rights by analysis alone. Such is not necessarily a moot exercise in the semantics of only those two words. This analysis would certainly be asked to elaborate on questions such as “what are the objects of human rights?”, “what are the criteria of being human?”, “why are human rights more significant than other rights?”, etc. But such analyses could not be responsible for the historical, contextual use of the term “human rights” or the practical doings of the community that is today labeled as the “human rights community.” It would be a truly conceptual analysis.

A very different project would tell the historical story of human rights, deciding in some well-explained fashion, or perhaps in a more arbitrary one, where that history begins. We have mentioned that common wisdom puts its beginning after World War II. But since human rights are a sub-category of rights in general, it might behoove the teller of the story to begin where the concept of “rights” began. Without going into minute textual investigation, it is generally safe to say that the idea of rights belongs in seventeenth-century philosophy with the advent of philosophical-political liberal thought. So our story would begin in the seventeenth century with the usual suspects – famous protagonists like Thomas Hobbes, John Locke, and Jean Jacques Rousseau. It would, however, need to identify the intellectual point in time where rights in general gave way to human rights. And it would have to address other challenges to that conventional 1948 birth of human rights, propounded by historians and scholars of a more political or historical bent who look to the current praxis of human rights and identify its beginnings in various concrete rather than merely legalistic or formalistic contexts.¹

Our aim in this book is to provide a working philosophical synthesis of both of these perspectives. In other words, we aspire to treat the conceptual framework of human rights simultaneously in both an analytic and contextual manner: the terms “human” and “rights” – along with their amalgamation and derivatives – will be examined not in a purely meaning-ridden enquiry but rather as items of a discourse and practice that carry both historical baggage and contemporary weight. In this chapter we begin with some terminological clarifications for such a synthesis.

The Basic Building Blocks

Human rights are the rights to which humans are entitled; or, to put it more accurately, human rights concepts articulate what it is that humans are entitled to. It should be immediately stressed that entitlement is not – as it might sound to some – a matter of privilege. The entitlement of which we speak here is an entitlement of necessity, not of indulgence. Saying that human beings are entitled to something does not thereby make that something an object to be fashionably coveted or popularly desired. It rather implies that these are things without which a human life is not complete or properly human. The entitlement associated with human rights is a requirement of certain things due to any human being.

A common axiom of human rights (which will, in the sequel, be questioned and discussed, despite being sometimes considered axiomatic) is that it is the individual human being who is owed these rights. Such individualism is a staple of modern liberal thought, coming on the heels of the Enlightenment recognition of the human individual – rather than the family, the tribe, the religious group, the community, the society, or the nation – as a source of rational and sometimes even moral authority. We will soon examine the issue of authority but, for the meantime, it is a relatively straightforward insight that places the single, distinct human being at the center of human rights. Although groups of human beings, like the family, the tribe, the religious group, the community, the society, and the nation, may seem to carry an identifiable existence of their own, and although we may entertain the notion of the rights of such groups,² it is the individual who is the emblematic subject of human rights. Saying that individual humans rather than groups, for instance, are entitled to human rights does not preclude asking further questions about which individuals these might be: Each and every human being? Does that include children? And what about prisoners, or disabled persons? These are weighty questions that need answering; but they do not belie the exclusive focus on the singular human being who functions as the main protagonist in the human rights story.

An immediate additional query, after we posit that individuals are owed human rights, is “who (or what) owes these rights?” Here again, in almost axiomatic form, the conventional modern answer is a consequence of a modern political construct – the state. True, we might find ourselves saying things like “I have a right to that house that I bought,” and surmising that the seller of the house that I bought must deliver on my right. Or we might discuss the issue of students’ rights in school and accost a teacher or a principal as responsible for protecting those rights. We might even speak of prisoners’ rights in a penitentiary and hold the guards or warden accountable for upholding those prisoners’ rights. But in the case of the human rights of individuals, in general, it is the political authority of the state that is looked to for support, protection, defense, and safeguarding; and it is, contrarily, the state which houses the greatest potential for violation of human rights. By saying “the state” we mean the persons, institutions, and roles that together make up and perform the functions of political authority. Political theories, within the context of political science and political philosophy, may be called upon to explicate the essence of these bodies and to elaborate on their functioning. (Some of them will, indeed, come up in subsequent chapters.) Suffice for now to acknowledge the modern state, more often than not a nation-state, as the main player³ in the international arena and therefore the body that is considered responsible for the individual’s human rights.

Individuals, and the states that house them, are subsequently the actors on the human rights stage. But aren’t we missing the main actor on the stage? Or perhaps what is needed is a better description of the stage itself. Who, or what, is it that prescribes human rights? Who, or what, is it that formulates the rules for recognizing human rights and their violations? Who, or what, is it that is called upon to enforce the guardianship of human rights by states and then to castigate or punish their violators? Here, it is time to continue climbing the staircase that leads from individuals to states to … the global order. It is the somewhat abstract level of international authority that is accepted as the power which, from on-high, from “above” the authority of the state itself, must undergird the arena of human rights. Such an international or global body might be seen as a purely theoretical construct – the higher-than-the-state authority which can be discerned in our quest for a general association of humanity. It has, however, acquired more concrete and down-to-earth expression in the workings of international politics and international law. For it is in international agreements, treaties, conventions or covenants, and in global institutions, courts, tribunals, and commissions, that human rights have been “grounded.” The legal and political bodies to which we allude will be duly elaborated in the coming chapters, but it is important to note, immediately, that the theoretical structure we are describing – from individuals who hold human rights, to states that are responsible for them, to a world society which ensures their protection – is deceptively simple, tracing, as it seems to do, a progression from the human ground up to a global sky.

Deceptive and simplistic, since it appears to facetiously suggest that states are only conglomerates of individuals and the global order is only an amalgamation of states. Even supposing that we could easily define and identify the individual human who is the “hero” of the human rights story – that is to say, its main protagonist – these two higher levels of state and global authority need the attention given by the disciplines of political science, international relations, and legal studies to analyze their status in the realm of human rights. Think of it this way: Since human rights are to be accorded to all human beings, it is under the purview of a global power to prescribe and ensure their accordance universally. The state seems to be positioned somewhere between that universal authority that is reaching out to individuals and the individuals themselves, and it is the state that is considered the vehicle of providing for human rights (and being called to task if it doesn’t). But how are individuals to reach out, beyond or around or above the state, to the world power that governs human rights? And how can that world power access, under or around or below the state, the human beings that need its human rights support and protection? Clearly it is that entity called the state, positioned between the individual and the world, which plays both the political role and the legal functions that either provide for human rights or violate them. And states, rather than individuals or international institutions, might prove to be the indispensable characters in our story of human rights.

Categories of Rights

In the following chapters we will encounter numerous examples of human rights. An immediate, rather intuitive list that is made up of elements we are all familiar with probably looks like this: the right to life, the right to liberty, the right to be recognized before the law, freedom of movement, the right to honorable subsistence, the right not to be subjected to torture, the right to never be a slave, freedom of thought and religion, the right to work, the right to marry whomever one wishes to marry – or the right not to be married at all, the right of free association, the right to healthcare, the right to education. Some readers of this list may think there are basic human rights missing from it; others may feel it includes “rights” that are not, by their light, really human rights. The exact enumeration of those rights that are, or should be, recognized as human rights is one of the issues that a philosopher (of human rights) must elaborate upon; the criteria for including or excluding a right from the category of human rights are something a philosopher (of human rights) must investigate and then clarify. These questions are, in fact, an important part of our agenda in this book. For the moment, however, let us expound more generally on two main categories of human rights that have become part and parcel of the human rights suitcase: a family of human rights called civil and political rights and another family called economic, social, and cultural rights.

When looking at the usual suspects adumbrated in the lists of human rights that we – we who are mostly in the Western World – are accustomed to, like the right to vote, our rights before the law, the freedom to leave and re-enter a country, the right to a nationality, and other obvious candidates for the label of “human rights,” it seems clear that these are civil or political rights. That is to say, these are rights that one – an individual – can demand as a citizen of a political entity, usually of a state. There is something inherently political in this type of right, something that is manifested in the civil role that an individual plays vis à vis the state of which she is a citizen. Another type of right, seemingly less political, can be discerned in, for instance, the right to health care, the right to a reasonable subsistence, or the right to education. These rights appear to be a matter of one’s economic, social, or cultural well-being, not one’s political existence. True, these latter rights, if recognized as human rights, are also claimed by the individual facing her state authorities, but they are of a different kind than the evidently political or civil rights of the first group of rights.

Understandably, then, the human rights discussion has evolved (since 1948) to accept two relatively well-defined groups of rights: the civil-political class of human rights and the economic-social-cultural set of human rights.⁴ Relatively well-defined, since several problems arise from this handy distinction. First, how are we to situate some prominent human rights, like freedom of movement or the right to free speech? Are these political rights or social rights? And what about the right to education? Is that a civil right or an economic right? Or the rights having to do with marriage – are they political, civil, social, or perhaps even economic? Second, and not unconnected, what is it that justifies our placement of a right – supposing we have agreed that it is a human right – in one of these categories? In the annals of liberal thought, the twosome of freedom and equality have played a central role as the basic concepts that ground liberalism.⁵ And in the analysis of human rights it is often claimed that the construct of freedom grounds civil and political rights, while equality is the idea driving economic, social, and cultural rights. But this, of course, needs deep exploration, especially since these two stalwarts of liberalism – and of human rights – have led to some sore complexities in our political life. Not unrelated to this tension are, thirdly, the attitudes towards freedom and equality, and subsequently towards human rights, held by different societies in different parts of the world. Our historical story of the formal advent of human rights (in 1948) will illustrate the debates between various countries on issues of human rights that can be understood precisely through the bifurcation of liberty and equality. Recalling the French Revolution’s “liberty, equality, fraternity,”⁶ Martin Buber once famously quipped that liberty went West, equality went East, and fraternity was lost sight of by all (Friedman, 1983, 450). Be that as it may, we will see in the sequel how this essential and deep division between civil-political and economic-social-cultural human rights led to the evolvement of two separate formal-legal bodies of human rights. And we will ask, more philosophically, if this division is warranted and whether it carries essential or practical consequences.

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Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface and Acknowledgments
• Introduction
• PART I: Overview
• PART II: Philosophical Groundings
• PART III: Issues in Human Rights
• PART IV: Critique
• Formal Documents of Human Rights
• Bibliography
• Index