Handbook of Human Rights

Thomas Cushman, Thomas Cushman

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781134019076
• Edition: 1
• Topic: Filosofía
• Subtopic: Historia y teoría de la filosofía

In mapping out the field of human rights for those studying and researching within both humanities and social science disciplines, the Handbook of Human Rights not only provides a solid foundation for the reader who wants to learn the basic parameters of the field, but also promotes new thinking and frameworks for the study of human rights in the twenty-first century.

The Handbook comprises over sixty individual contributions from key figures around the world, which are grouped according to eight key areas of discussion:

• 
  
  

• foundations and critiques;
• new frameworks for understanding human rights;
• world religious traditions and human rights;
• social, economic, group, and collective rights;
• critical perspectives on human rights organizations, institutions, and practices;
• law and human rights;
• narrative and aesthetic dimension of rights;
• geographies of rights.

In its presentation and analysis of the traditional core history and topics, critical perspectives, human rights culture, and current practice, this Handbook proves a valuable resource for all students and researchers with an interest in human rights.

Part I

Foundations and critiques

1

Philosophical foundations
of human rights

Andrew Fagan

Introduction

This chapter presents and analyzes philosophical contributions to the theory and practice of human rights. More specifically, I will focus on attempts to justify human rights as a universally valid moral doctrine in a culturally and politically diverse and complex world. The task of seeking to identify and formulate an ultimate justification for a commitment to human rights is complex and has attracted consistent criticism. Many supporters of human rights have argued that institutionally established human rights require no ultimate justification: the very fact that they have been legally recognized and implemented is sufficient evidence in support of human rights claims. Others have also declined an appeal to philosophical reasoning and argumentation in their commitment to human rights and have argued that we have human rights simply by virtue of being human. As Jack Donnelly has stated, human rights “are the rights one has because one is a human” (2002, p. 7). Many advocates of human rights base their belief in the moral authority of human rights on such apparently self-evidently or intuitively true proclamations and rarely, if ever, subject these assumptions to critical scrutiny. Basing one's belief in the moral authority of a doctrine as potentially controversial and revolutionary as human rights upon mere assumption provides a poor basis for defending one's commitments in the face of skepticism or systematic opposition. There are many people in the world who simply do not believe in human rights. One of the major criticisms of human rights is that the ideals of individual liberty and equality, which are central elements of the foundations of human rights, simply do not apply to the cultural or religious traditions and practices to which they adhere. It is rare that such opponents reject all human rights to the same degree in such instances, but restrictions are commonly applied to the human rights of members of such societies that entail imposing severe restrictions upon the human rights of many. An inability to offer sound justification for one's commitments to protecting and promoting the individual liberty and equality of all human beings will further compound the human rights violations of many human beings, including, for example, many women across the globe, as well as those belonging to ethnic, religious, and sexual minorities.

In addition to disputes over who is entitled to possess human rights, there are also serious disputes and controversies surrounding which human rights should be considered as such: disputes reign over what may legitimately be included in the category of human rights. Thus, some have long held to the view that civil and political rights are somehow more important and legitimate than their economic, social, and cultural counterparts. It has been argued that in cases where the protection of a civil and political right may come into conflict with an economic, social, and cultural counterpart, priority should generally be accorded to the former over the latter on the grounds that civil and political rights are somehow more incontestably human rights than their economic, social, and cultural counterparts (Cranston 1973). A separate position holds that human rights can only be said to exist meaningfully as legally recognized elements by a legally sovereign authority (Kelsen 1978). So-called legal positivists have long argued that a belief in the universal and pre-legal existence of human rights is intellectually incoherent and, in some cases, politically dangerous. On this view, rights gain their authority over us only through the process of becoming legally codified. Until that point, they are better understood as mere moral aspirations or prejudices. Both of these positions warrant serious consideration by supporters of human rights as defensible elements of a universally and generally valid moral doctrine. Simply relying upon a position that imagines that genuine human rights are self-evidently recognizable or intuitively identifiable is of no use in settling such disputes and offering a defense of human rights that have yet to be legally recognized within specific jurisdictions. It is important to note that such issues have life-and-death implications and consequences for many; these concerns are not mere artifacts or philosophical language games. Many of these disputes and conflicts are settled not by appeal to an assumption of the universal validity of human rights but by the use of power and force, which results in countless incidences of systematic human rights violations.

Thus, disputes over the ultimate basis and scope of human rights remain. It is manifestly not the case that all societies recognize the moral authority of human rights. Many remain to be persuaded by the arguments offered in support of human rights as a universally valid doctrine. There remains a normative challenge that confronts supporters of human rights and consists of the need to establish genuinely compelling and rationally acceptable arguments in support of human rights. How is this challenge being addressed and how successful have these responses been?

Philosophical arguments for human rights

There have been many attempts by philosophers to offer compelling arguments in support of human rights. Existing attempts to justify human rights may be classified into two somewhat different perspectives or approaches: the interest theory approach and the choice theory approach. The latter is more complex and detailed than the former, so I shall begin by analyzing the interest theory approach before analyzing the choice theory approach in greater detail.

It is impossible to begin to engage with the foundational questions of human rights without delving into the theoretical questions on the nature of being human. Typically, attempts to answer these questions and thereby provide a justification for human rights as a distinct moral doctrine seek to identify the fundamental elements or prerequisites for human agency. Theoretical justifications of human rights invariably begin and end with an attempt to identify what it is that ultimately constitutes us as human agents. All such attempts aim to identify what we all commonly share by virtue of being human and then construct from this commonality an account of the scope and application of human rights. Both the interest theory and the choice theory approaches attempt to identify the essential attributes of humankind. They differ in respect of what they consider to be the fundamental basis for the possession of human rights.

The interest theory approach is a label that has been applied to the work of John Finnis, Bryan S. Turner, Martha Nussbaum, and Amartya Sen, among others. The common basis for the interest theory approach consists of the appeal each theorist makes to the existence of fundamental human interests. Human beings are viewed as physiological and social agents who require the sufficient protection and promotion of certain interests in order to be human. These interests pre-exist, so to speak, the institution of human rights and social institutions more generally. That is to say, human rights are viewed as grounded in our very nature and exist in order to promote and protect those interests that constitute us: human rights are viewed as the mechanism through which these interests are best identified and secured. Historically and analytically, the concept of human interests precedes that of human rights. However, it would also be accurate to say that the language of human rights is fast replacing and superseding that of human interests, to the extent that the two are viewed in many quarters as simply synonymous. This can be unfortunate to the extent that it may obscure how some interest theorists conceive of human rights: as instrumental means for securing those “goods” and interests that (purportedly) make us what we are. On this view, human rights are considered to be instrumentally valuable to realizing our fundamental interests, rather than the form those interests must necessarily take.

Few interest theories foreground the concept of human nature in their formulations of the basis and scope of human rights, which is understandable, given the deeply controversial character of any such appeal. Many theorists, for example, have rejected the very notion of some essence or first nature to humankind. Over the past fifty years or so, the discussion of what our nature may be has been completely transformed by the contributions of historians, social anthropologists, and sociologists who have empirically challenged a conception of human “nature” as timeless and unchanging. Appeals to human nature or essential human interests have increasingly provoked disagreement and dissensus rather than agreement and consensus. This is also apparent within the interest theory approach, insofar as different interest theorists present different accounts of our fundamental interests.

Drawing upon a tradition of natural law, John Finnis (1980) argues that there are seven basic forms of human flourishing, which are universal and encompass social and physical attributes of the human condition, ranging from a capacity for practical reason, to play and recreation, and culminating in a capacity for spiritual experience. He argues that this account is not beholden to some overly physiological conception of human nature and is comprehensive and robust enough to encompass the empirical diversity of human life. According to Finnis, the function of human rights is to secure our access to and enjoyment of these seven basic forms of human flourishing and they are justified to the extent that they are successful in providing for this end. By contrast, the neo-Aristotelian philosopher Martha Nussbaum (2002) identifies ten basic goods, ranging from “life”; bodily health and bodily integrity; to emotions; affiliation, which comprises friendship and respect; and finally, control over one's environment. Some may be inclined to dismiss the differences between Finnis and Nussbaum as mostly irrelevant to the underlying vision of humankind they seek to express. The differences, however, are apparent enough and reveal the extent to which the two authors are influenced by different normative principles: visions of what humankind ought to be, rather than what it is. In this respect, they do share a somewhat “idealized” account of humanity that largely excludes human beings’ capacity for inhumanity. It seems somewhat counterintuitive to suggest that each and every one of us has a fundamental interest in our capacity for inhumanity, but perfectly reasonable to insist that an account of human rights takes this capacity into account, given that the very need for many human rights is most apparent in their being violated, rather than respected.

The interest theory approach may be analyzed through what I shall refer to as the motivational question: which motives are identified as securing individuals’ and states’ respect for human rights generally? The motivational question aims to account for why each and every human being has a fundamental interest in respecting human rights as a general institution. This is not a question for interest theories alone and it will also be applied to the latter discussion of the choice theory approach. Both Finnis and Nussbaum imply that this question can be answered adequately by an accurate understanding of our nature and of human reason as a constituent of that nature: the realization of our common attributes will entail the establishment of an institutional commonality. Both Finnis and Nussbaum, however, fail to adequately address those less worthy and salubrious aspects of our condition. One might say that both accounts fail to accord sufficient weight to the Holocaust and genocide as human facts; both neglect the phenomenon of systematically induced human suffering as an essential feature of any account of humankind and correlative rights.

The same cannot be said of another interest theorist, the sociologist Bryan S. Turner. Like other interest theorists, Turner (2002) ultimately appeals to central features of the human condition as providing the basis and scope for the social institution of human rights. Unlike some other sociological contributions to the study of human rights, however, he does attempt to identify some mostly asocial and trans-historical elements of the human condition out of which and in response to which our concern for human rights should be directed. Put succinctly, Turner argues that the institution of human rights exists to protect human beings from one another, as much as to provide for a more flourishing human life. The ultimate feature of the human condition, Turner argues, is that we are physically frail and potentially vulnerable to one another. Turner insists that this is a universal condition; by virtue of being physically embodied beings we are frail and vulnerable to one another. The function of human rights is to provide protection and security for all of us to a broadly equal degree. All must return to dust eventually, but in the meantime, we all have a similar capacity for suffering. To the extent that this suffering has man-made causes, we all have an interest in avoiding and preventing human suffering as much as possible. Human rights aims not at achieving some perfect humanistic utopia but rather is motivated by our physical and social frailty and a desire to avoid or reduce our exposure to this.

How might the interest theory approach be criticized? Its most apparent weakness would appear to lie in the necessary role played by the concept of human nature as the foundation for purportedly essential interests. Placing to one side those who challenge the very notion of a human essence, it is clear that even those who do appeal to human nature harbor different conceptions of what constitutes our nature. All accounts of human nature appear to be unduly partial and insufficiently comprehensive to provide a fully objective and accurate menu of essential human interests. While important, this is not the most important criticism of the interest theory approach. It would be foolish to deny that our physiological and social functioning is adversely affected by a lack of access to certain goods or attributes. The most obvious of these are, perhaps, food and water. I do not personally think that the identification of certain fundamental human interests, that is, interests that positively promote our individual well-being, is an exercise doomed to failure. Interest theories should be commended precisely to the extent that they do place the fact of our embodiment at the very center of any attempt to define the basis and scope of human rights. The interest theory approach, however, suffers from at least one fundamental weakness, and this consists of what I earlier referred to as the motivational question.

Human rights address humankind but are ultimately possessed by separate individuals; individual moral sovereignty is central to the human rights doctrine. Thus, in identifying the human rights that any individual may legitimately possess, we would appear to be bound to apply these to all human agents. Such neat conclusions can be easily drawn in the comfort of a theorist's study. In the real world, however, things are rather different. Put bluntly, it is easier to see why I should take a self-interested reason in having my human rights secured than why I should simultaneously act to ensure that some distant other's human rights should also be secured. This would not matter if my actions and inactions had no bearing at all upon others’ conditions. Unfortunately, however, they do. The unequal distribution of essential resources across the globe is an obvious case in point. Human rights exist against the backdrop of haves and have-nots, where the immediate self-interest of the former may positively require the continuing deprivation of the latter. This has significant consequences for an evaluation of the interest theory approach, which can be illustrated by critically analyzing Turner's argument.

Turner has been criticized on many grounds, including for not being sufficiently “sociological” in his approach to human rights. This claim harbors a number of rather different issues and concerns, but one of these is particularly important for present purposes. One may discern a distinct Hobbesian influence upon Turner's approach to human rights, grounded, as it is, upon our capacity to harm one another. Hobbes famously sought to identify a political means by which self-interested individuals may nevertheless prudentially live under the same political roof. Although few go so far as to endorse his account of the Leviathan as the ultimate guarantor of prudential self-interest, his approach has profoundly influenced modern political theorists who have similarly appealed to prudential self-interest as the basis for securing reciprocal respect for fundamental human rights (Gauthier 1986).

For some, drawing a comparison between Turner and Hobbes will serve to reinforce the validity of the former's claims. Turner's argument, however, shares with Hobbes's (and other such theorists) a fundamental weakness. The weakness is of a more empirical than purely normative character. I term this weakness a “false political economy of harm.” What do I mean by this? Like all contractarian accounts of the basis and scope of political authority, Turner's is vulnerable to an empirical falsification of one of his argument's central assumptions; namely, that all of these agents addressed by the theory are in fact similarly situated in respect of their capacity to harm or aid one another, or can be hypothetically represented as so situated. Turner's approach shares with other interest-theory-based accounts of human rights a desire to avoid appealing to unduly hypothetical or metaphysical visions of the nature of humankind and aims to restrict the vision to that which is empirically demonstrable or credible. Put simply, his account assumes the existence of a relatively level playing field, inhabited by each a...