Human rights are certain moral guarantees. This article examines the philosophical basis and content of the doctrine of human rights. The analysis consists of five sections and a conclusion. Section one assesses the contemporary significance of human rights, and argues that the doctrine of human rights has become the dominant moral doctrine for evaluating the moral status of the contemporary geo-political order. Section two proceeds to chart the historical development of the concept of human rights, beginning with a discussion of the earliest philosophical origins of the philosophical bases of human rights and culminating in some of most recent developments in the codification of human rights. Section three considers the philosophical concept of a human right and analyses the formal and substantive distinctions philosophers have drawn between various forms and categories of rights. Section four addresses the question of how philosophers have sought to justify the claims of human rights and specifically charts the arguments presented by the two presently dominant approaches in this field: interest theory and will theory. Section five then proceeds to discuss some of the main criticisms currently levelled at the doctrine of human rights and highlights some of the main arguments of those who have challenged the universalist and objectivist bases of human rights. Finally, a brief conclusion is presented, summarising the main themes addressed.
Table of Contents
- Introduction: the contemporary significance of human rights
- Historical origins and development of the theory and practice of human rights
- Philosophical analysis of the concept of human rights
- Moral vs. Legal Rights
- Claim Rights & Liberty Rights
- Substantive categories of human rights
- Scope of human rights duties
- Philosophical justifications of human rights
- Do human rights require philosophical justification?
- The interests theory approach
- The Will Theory Approach
- Philosophical criticisms of human rights
- Moral relativism
- Epistemological criticisms of human rights
- References and Further Reading
1. Introduction: the contemporary significance of human rights
Human rights have been defined as
basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. Calling these guarantees "rights" suggests that they attach to particular individuals who can invoke them, that they are of high priority, and that compliance with them is mandatory rather than discretionary. Human rights are frequently held to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country. (Nickel, 1992:561-2)
The moral doctrine of human rights aims at identifying the fundamental prerequisites for each human being leading a minimally good life. Human rights aim to identify both the necessary negative and positive prerequisites for leading a minimally good life, such as rights against torture and rights to health care. This aspiration has been enshrined in various declarations and legal conventions issued during the past fifty years, initiated by the Universal Declaration of Human Rights (1948) and perpetuated by, most importantly, the European Convention on Human Rights (1954) and the International Covenant of Civil and Political Rights (1966). Together these three documents form the centrepiece of a moral doctrine that many consider to be capable of providing the contemporary geo-political order with what amounts to an international bill of rights. However, the doctrine of human rights does not aim to be a fully comprehensive moral doctrine. An appeal to human rights does not provide us with a fully comprehensive account of morality per se. Human rights do not, for example, provide us with criteria for answering such questions as whether telling lies is inherently immoral, or what the extent of one's moral obligations to friends and lovers ought to be? What human rights do primarily aim to identify is the basis for determining the shape, content, and scope of fundamental, public moral norms. As James Nickel states, human rights aim to secure for individuals the necessary conditions for leading a minimally good life. Public authorities, both national and international, are identified as typically best placed to secure these conditions and so, the doctrine of human rights has become, for many, a first port of moral call for determining the basic moral guarantees all of us have a right to expect, both of one another but also, primarily, of those national and international institutions capable of directly affecting our most important interests. The doctrine of human rights aspires to provide the contemporary, allegedly post-ideological, geo-political order with a common framework for determining the basic economic, political, and social conditions required for all individuals to lead a minimally good life. While the practical efficacy of promoting and protecting human rights is significantly aided by individual nation-states' legally recognising the doctrine, the ultimate validity of human rights is characteristically thought of as not conditional upon such recognition. The moral justification of human rights is thought to precede considerations of strict national sovereignty. An underlying aspiration of the doctrine of human rights is to provide a set of legitimate criteria to which all nation-states should adhere. Appeals to national sovereignty should not provide a legitimate means for nation-states to permanently opt out of their fundamental human rights-based commitments. Thus, the doctrine of human rights is ideally placed to provide individuals with a powerful means for morally auditing the legitimacy of those contemporary national and international forms of political and economic authority which confront us and which claim jurisdiction over us. This is no small measure of the contemporary moral and political significance of the doctrine of human rights. For many of its most strident supporters, the doctrine of human rights aims to provide a fundamentally legitimate moral basis for regulating the contemporary geo-political order.
2. Historical origins and development of the theory and practice of human rights
The doctrine of human rights rests upon a particularly fundamental philosophical claim: that there exists a rationally identifiable moral order, an order whose legitimacy precedes contingent social and historical conditions and applies to all human beings everywhere and at all times. On this view, moral beliefs and concepts are capable of being objectively validated as fundamentally and universally true. The contemporary doctrine of human rights is one of a number of universalist moral perspectives. The origins and development of the theory of human rights is inextricably tied to the development of moral universalism. The history of the philosophical development of human rights is punctuated by a number of specific moral doctrines which, though not themselves full and adequate expressions of human rights, have nevertheless provided a number of philosophical prerequisites for the contemporary doctrine. These include a view of morality and justice as emanating from some pre-social domain, the identification of which provides the basis for distinguishing between 'true' and merely ‘conventional’ moral principles and beliefs. The essential prerequisites for a defence of human rights also include a conception of the individual as the bearer of certain 'natural' rights and a particular view of the inherent and equal moral worth of each rational individual. I shall discuss each in turn.
Human rights rest upon moral universalism and the belief in the existence of a truly universal moral community comprising all human beings. Moral universalism posits the existence of rationally identifiable trans-cultural and trans-historical moral truths. The origins of moral universalism within Europe are typically associated with the writings of Aristotle and the Stoics. Thus, in his Nicomachean Ethics, Aristotle unambiguously expounds an argument in support of the existence of a natural moral order. This natural order ought to provide the basis for all truly rational systems of justice. An appeal to the natural order provides a set of comprehensive and potentially universal criteria for evaluating the legitimacy of actual 'man-made' legal systems. In distinguishing between ‘natural justice' and 'legal justice’, Aristotle writes, ‘the natural is that which has the same validity everywhere and does not depend upon acceptance.' (Nicomachean Ethics, 189) Thus, the criteria for determining a truly rational system of justice pre-exist social and historical conventions. 'Natural justice' pre-exists specific social and political configurations. The means for determining the form and content of natural justice is the exercise of reason free from the distorting effects of mere prejudice or desire. This basic idea was similarly expressed by the Roman Stoics, such as Cicero and Seneca, who argued that morality originated in the rational will of God and the existence of a cosmic city from which one could discern a natural, moral law whose authority transcended all local legal codes. The Stoics' argued that this ethically universal code imposed upon all of us a duty to obey the will of god. The Stoics thereby posited the existence of a universal moral community effected through our shared relationship with god. The belief in the existence of a universal moral community was maintained in Europe by Christianity over the ensuing centuries. While some have discerned intimations towards the notion of rights in the writings of Aristotle, the Stoics, and Christian theologians, a concept of rights approximating that of the contemporary idea of human rights most clearly emerges during the 17th. And 18th. Centuries in Europe and the so-called doctrine of natural law.
The basis of the doctrine of natural law is the belief in the existence of a natural moral code based upon the identification of certain fundamental and objectively verifiable human goods. Our enjoyment of these basic goods is to be secured by our possession of equally fundamental and objectively verifiable natural rights. Natural law was deemed to pre-exist actual social and political systems. Natural rights were thereby similarly presented as rights individuals possessed independently of society or polity. Natural rights were thereby presented as ultimately valid irrespective of whether they had achieved the recognition of any given political ruler or assembly. The quintessential exponent of this position was the 17th. Century philosopher John Locke and, in particular, the argument he outlined in his Two Treatises of Government (1688). At the centre of Locke's argument is the claim that individuals possess natural rights, independently of the political recognition granted them by the state. These natural rights are possessed independently of, and prior to, the formation of any political community. Locke argued that natural rights flowed from natural law. Natural law originated from God. Accurately discerning the will of God provided us with an ultimately authoritative moral code. At root, each of us owes a duty of self-preservation to God. In order to successfully discharge this duty of self-preservation each individual had to be free from threats to life and liberty, whilst also requiring what Locke presented as the basic, positive means for self-preservation: personal property. Our duty of self-preservation to god entailed the necessary existence of basic natural rights to life, liberty, and property. Locke proceeded to argue that the principal purpose of the investiture of political authority in a sovereign state was the provision and protection of individuals' basic natural rights. For Locke, the protection and promotion of individuals’ natural rights was the sole justification for the creation of government. The natural rights to life, liberty, and property set clear limits to the authority and jurisdiction of the State. States were presented as existing to serve the interests, the natural rights, of the people, and not of a Monarch or a ruling cadre. Locke went so far as to argue that individuals are morally justified in taking up arms against their government should it systematically and deliberately fail in its duty to secure individuals' possession of natural rights.
Analyses of the historical predecessors of the contemporary theory of human rights typically accord a high degree of importance to Locke's contribution. Certainly, Locke provided the precedent of establishing legitimate political authority upon a rights foundation. This is an undeniably essential component of human rights. However, the philosophically adequate completion of theoretical basis of human rights requires an account of moral reasoning, that is both consistent with the concept of rights, but which does not necessarily require an appeal to the authority of some super-human entity in justifying human beings' claims to certain, fundamental rights. The 18th. Century German philosopher, Immanuel Kant provides such an account.
Many of the central themes first expressed within Kant's moral philosophy remain highly prominent in contemporary philosophical justifications of human rights. Foremost amongst these are the ideals of equality and the moral autonomy of rational human beings. Kant bestows upon contemporary human rights' theory the ideal of a potentially universal community of rational individuals autonomously determining the moral principles for securing the conditions for equality and autonomy. Kant provides a means for justifying human rights as the basis for self-determination grounded within the authority of human reason. Kant's moral philosophy is based upon an appeal to the formal principles of ethics, rather than, for example, an appeal to a concept of substantive human goods. For Kant, the determination of any such goods can only proceed from a correct determination of the formal properties of human reason and thus do not provide the ultimate means for determining the correct ends, or object, of human reason. Kant's moral philosophy begins with an attempt to correctly identify those principles of reasoning that can be applied equally to all rational persons, irrespective of their own specific desires or partial interests. In this way, Kant attaches a condition of universality to the correct identification of moral principles. For him, the basis of moral reasoning must rest upon a condition that all rational individuals are bound to assent to. Doing the right thing is thus not determined by acting in pursuit of one's own interests or desires, but acting in accordance with a maxim which all rational individuals are bound to accept. Kant terms this the categorical imperative, which he formulates in the following terms, 'act only on that maxim through which you can at the same time will that it should become a universal law.' (1948:84). Kant argues that this basic condition of universality in determining the moral principles for governing human relations is a necessary expression of the moral autonomy and fundamental equality of all rational individuals. The categorical imperative is self-imposed by morally autonomous and formally equal rational persons. It provides the basis for determining the scope and form of those laws which morally autonomous and equally rational individuals will institute in order to secure these very same conditions. For Kant, the capacity for the exercise of reason is the distinguishing characteristic of humanity and the basis for justifying human dignity. As the distinguishing characteristic of humanity, formulating the principles of the exercise of reason must necessarily satisfy a test of universality; they must be capable of being universally recognized by all equally rational agents. Hence, Kant's formulation of the categorical imperative. Kant’s moral philosophy is notoriously abstract and resists easy comprehension. Though often overlooked in accounts of the historical development of human rights, his contribution to human rights has been profound. Kant provides a formulation of fundamental moral principles that, though exceedingly formal and abstract, are based upon the twin ideals of equality and moral autonomy. Human rights are rights we give to ourselves, so to speak, as autonomous and formally equal beings. For Kant, any such rights originate in the formal properties of human reason, and not the will of some super-human being.
The philosophical ideas defended by the likes of Locke and Kant have come to be associated with the general Enlightenment project initiated during the 17th. and 18th. Centuries, the effects of which were to extend across the globe and over ensuing centuries. Ideals such as natural rights, moral autonomy, human dignity and equality provided a normative bedrock for attempts at re-constituting political systems, for overthrowing formerly despotic regimes and seeking to replace them with forms of political authority capable of protecting and promoting these new emancipatory ideals. These ideals effected significant, even revolutionary, political upheavals throughout the 18th. Century, enshrined in such documents as the United States' Declaration of Independence and the French National Assembly’s Declaration of the Rights of Man and Citizen. Similarly, the concept of individual rights continued to resound throughout the 19th. Century exemplified by Mary Wollstencraft's Vindication of the Rights of Women and other political movements to extend political suffrage to sections of society who had been denied the possession of political and civil rights. The concept of rights had become a vehicle for effecting political change. Though one could argue that the conceptual prerequisites for the defence of human rights had long been in place, a full Declaration of the doctrine of human rights only finally occurred during the 20th. Century and only in response to the most atrocious violations of human rights, exemplified by the Holocaust. The Universal Declaration of Human Rights (UDHR) was adopted by the UN General Assembly on 10th. December 1948 and was explicitly motivated to prevent the future occurrence of any similar atrocities. The Declaration itself goes far beyond any mere attempt to reassert all individuals' possession of the right to life as a fundamental and inalienable human right. The UDHR consists of a Preamble and 30 articles which separately identify such things as the right not to be tortured (article 5), a right to asylum (article 14), a right to own property (article 17), and a right to an adequate standard of living (article 25) as being fundamental human rights. As I noted earlier, the UDHR has been further supplemented by such documents as the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) and the International Covenant on Economic, Social and Cultural Rights (1966). The specific aspirations contained within these three documents have themselves been reinforced by innumerable other Declarations and Conventions. Taken together these various Declarations, conventions and covenants comprise the contemporary human rights doctrine and embody both the belief in the existence of a universally valid moral order and a belief in all human beings' possession of fundamental and equal moral status, enshrined within the concept of human rights. It is important to note, however, that the contemporary doctrine of human rights, whilst deeply indebted to the concept of natural rights, is not a mere expression of that concept but actually goes beyond it in some highly significant respects. James Nickel ( 1987: 8-10) identifies three specific ways in which the contemporary concept of human rights differs from, and goes beyond that of natural rights. First, he argues that contemporary human rights are far more concerned to view the realization of equality as requiring positive action by the state, via the provision of welfare assistance, for example. Advocates of natural rights, he argues, were far more inclined to view equality in formalistic terms, as principally requiring the state to refrain from 'interfering' in individuals’ lives. Second, he argues that, whereas advocates of natural rights tended to conceive of human beings as mere individuals, veritable 'islands unto themselves', advocates of contemporary human rights are far more willing to recognize the importance of family and community in individuals' lives. Third, Nickel views contemporary human rights as being far more 'internationalist' in scope and orientation than was typically found within arguments in support of natural rights. That is to say, the protection and promotion of human rights are increasingly seen as requiring international action and concern. The distinction drawn by Nickel between contemporary human rights and natural rights allows one to discern the development of the concept of human rights. Indeed, many writers on human rights agree in the identification of three generations of human rights. First generation rights consist primarily of rights to security, property, and political participation. These are most typically associated with the French and US Declarations. Second generation rights are construed as socio-economic rights, rights to welfare, education, and leisure, for example. These rights largely originate within the UDHR. The final and third generation of rights are associated with such rights as a right to national self-determination, a clean environment, and the rights of indigenous minorities. This generation of rights really only takes hold during the last two decades of the 20th. Century but represents a significant development within the doctrine of human rights generally.
While the full significance of human rights may only be finally dawning on some people, the concept itself has a history spanning over two thousand years. The development of the concept of human rights is punctuated by the emergence and assimilation of various philosophical and moral ideals and appears to culminate, at least to our eyes, in the establishment of a highly complex set of legal and political documents and institutions, whose express purpose is the protection and promotion of the fundamental rights of all human beings everywhere. Few should underestimate the importance of this particular current of human history.
3. Philosophical analysis of the concept of human rights
Human rights are rights that attach to human beings and function as moral guarantees in support of our claims towards the enjoyment of a minimally good life. In conceptual terms, human rights are themselves derivative of the concept of a right. This section focuses upon the philosophical analysis of the concept of a 'right' in order to clearly demonstrate the various constituent parts of the concept from which human rights emerges. In order to gain a full understanding of both the philosophical foundations of the doctrine of human rights and the different ways in which separate human rights function, a detailed analysis is required.
a. Moral vs. Legal Rights
The distinction drawn between moral rights and legal rights as two separate categories of rights is of fundamental importance to understanding the basis and potential application of human rights. Legal rights refer to all those rights found within existing legal codes. A legal right is a right that enjoys the recognition and protection of the law. Questions as to its existence can be resolved by simply locating the relevant legal instrument or piece of legislation. A legal right cannot be said to exist prior to its passing into law and the limits of its validity are set by the jurisdiction of the body which passed the relevant legislation. An example of a legal right would be my daughter's legal right to receive an adequate education, as enshrined within the United Kingdom's Education Act (1944). Suffice it to say, that the exercise of this right is limited to the United Kingdom. My daughter has no legal right to receive an adequate education from a school board in Southern California. Legal positivists argue that the only rights that can be said to legitimately exist are legal rights, rights that originate within a legal system. On this view, moral rights are not rights in the strict sense, but are better thought of as moral claims, which may or may not eventually be assimilated within national or international law. For a legal positivist, such as the 19th. Century legal philosopher Jeremy Bentham, there can be no such thing as human rights existing prior to, or independently from legal codification. For a positivist determining the existence of rights is no more complicated than locating the relevant legal statute or precedent. In stark contrast, moral rights are rights that, it is claimed, exist prior to and independently from their legal counterparts. The existence and validity of a moral right is not deemed to be dependent upon the actions of jurists and legislators. Many people argued, for example, that the black majority in apartheid South Africa possessed a moral right to full political participation in that country's political system, even though there existed no such legal right. What is interesting is that many people framed their opposition to apartheid in rights terms. What many found so morally repugnant about apartheid South Africa was precisely its denial of numerous fundamental moral rights, including the rights not to be discriminated against on grounds of colour and rights to political participation, to the majority of that country's inhabitants. This particular line of opposition and protest could only be pursued because of a belief in the existence and validity of moral rights. A belief that fundamental rights which may or may not have received legal recognition elsewhere, remained utterly valid and morally compelling even, and perhaps especially, in those countries whose legal systems had not recognized these rights. A rights-based opposition to apartheid South Africa could not have been initiated and maintained by appeal to legal rights, for obvious reasons. No one could legitimately argue that the legal political rights of non-white South Africans were being violated under apartheid, since no such legal rights existed. The systematic denial of such rights did, however, constitute a gross violation of those peoples' fundamental moral rights.
From the above example it should be clear that human rights cannot be reduced to, or exclusively identified with legal rights. The legal positivist's account of justified law excludes the possibility of condemning such systems as apartheid from a rights perspective. It might, therefore, appear tempting to draw the conclusion that human rights are best identified as moral rights. After all, the existence of the UDHR and various International Covenants, to which South Africa was not a signatory in most cases, provided opponents of apartheid with a powerful moral argument. Apartheid was founded upon the denial of fundamental human rights. Human rights certainly share an essential quality of moral rights, namely, that their valid existence is not deemed to be conditional upon their being legally recognized. Human rights are meant to apply to all human beings everywhere, regardless of whether they have received legal recognition by all countries everywhere. Clearly, there remain numerous countries that wholly or partially exclude formal legal recognition to fundamental human rights. Supporters of human rights in these countries insist that the rights remain valid regardless, as fundamental moral rights. The universality of human rights positively entails such claims. The universality of human rights as moral rights clearly lends greater moral force to human rights. However, for their part, legal rights are not subject to disputes as to their existence and validity in quite the way moral rights are. It would be a mistake to exclusively identify human rights with moral rights. Human rights are better thought of as both moral rights and legal rights. Human rights originate as moral rights and their legitimacy is necessarily dependent upon the legitimacy of the concept of moral rights. A principal aim of advocates of human rights is for these rights to receive universal legal recognition. This was, after all, a fundamental goal of the opponents of apartheid. Human rights are best thought of, therefore, as being both moral and legal rights. The legitimacy claims of human rights are tied to their status as moral rights. The practical efficacy of human rights is, however, largely dependent upon their developing into legal rights. In those cases where specific human rights do not enjoy legal recognition, such as in the example of apartheid above, moral rights must be prioritised with the intention that defending the moral claims of such rights as a necessary prerequisite for the eventual legal recognition of the rights in question.
b. Claim Rights & Liberty Rights
To gain an understanding of the functional properties of human rights it is necessary to consider the more specific distinction drawn between claim rights and liberty rights. It should be noted that it is something of a convention to begin such discussions by reference to W.N. Hohfeld's (1919) more extended classification of rights. Hohfeld identified four categories of rights: liberty rights, claim rights, power rights, and immunity rights. However, numerous scholars have subsequently tended to collapse the last two within the first two and hence to restrict attention to liberty rights and claim rights. The political philosopher Peter Jones (1994) provides one such example.
Jones restricts his focus to the distinction between claim rights and liberty rights. He conforms to a well-established trend in rights' analysis in viewing the former as being of primary importance. Jones defines a claim right as consisting of being owed a duty. A claim right is a right one holds against another person or persons who owe a corresponding duty to the right holder. To return to the example of my daughter. Her right to receive an adequate education is a claim right held against the local education authority, which has a corresponding duty to provide her with the object of the right. Jones identifies further necessary distinctions within the concept of a claim right when he distinguishes between a positive claim right and a negative claim right. The former are rights one holds to some specific good or service, which some other has a duty to provide. My daughter's claim right to education is therefore a positive claim right. Negative claim rights, in contrast, are rights one holds against others' interfering in or trespassing upon one's life or property in some way. My daughter could be said to possess a negative claim right against others attempting to steal her mobile phone, for example. Indeed, such examples lead on to the final distinction Jones identifies within the concept of claim rights: rights held 'in personam' and rights held ‘in rem’. Rights held in personam are rights one holds against some specifically identified duty holder, such as the education authority. In contrast, rights held in rem are rights held against no one in particular, but apply to everyone. Thus, my daughter's right to an education would be practically useless were it not held against some identifiable, relevant, and competent body. Equally, her right against her mobile phone being stolen from her would be highly limited if it did not apply to all those capable of potentially performing such an act. Claim rights, then, can be of either a positive or a negative character and they can be held either in personam or in rem.
Jones defines liberty rights as rights which exist in the absence of any duties not to perform some desired activity and thus consist of those actions one is not prohibited from performing. In contrast to claim rights, liberty rights are primarily negative in character. For example, I may be said to possess a liberty right to spend my vacations lying on a particularly beautiful beach in Greece. Unfortunately, no one has a duty to positively provide for this particular exercise of my liberty right. There is no authority or body, equivalent to an education authority, for example, who has a responsibility to realize my dream for me. A liberty right can be said, then, to be a right to do as one pleases precisely because one is not under an obligation, grounded in others' claim rights, to refrain from so acting. Liberty rights provide for the capacity to be free, without actually providing the specific means by which one may pursue the objects of one's will. For example, a multi-millionaire and a penniless vagrant both possess an equal liberty right to holiday in the Caribbean each year.
c. Substantive categories of human rights
The above section was concerned to analyse what might be termed the 'formal properties' of rights. This section, in contrast, proceeds to consider the different categories of substantive human rights. If one delves into all of the various documents that together form the codified body of human rights, one can identify and distinguish between five different categories of substantive human rights. These are as follows: rights to life; rights to freedom; rights to political participation; rights to the protection of the rule of law; rights to fundamental social, economic, and cultural goods. These rights span the so-called three generations of rights and involve a complex combination of both liberty and claim rights. Some rights, such as for example the right to life, consist of both liberty and claim rights in roughly equal measure. Thus, the adequate protection of the right to life requires the existence of liberty rights against others trespassing against one's person and the existence of claim rights to have access to basic prerequisites to sustaining one's life, such as an adequate diet and health-care. Other rights, such as social, economic, and cultural rights, for example, are weighted more heavily towards the existence of various claim rights, which requires the positive provision of the objects of such rights. The making of substantive distinctions between human rights can have controversial, but important, consequences. Human rights are typically understood to be of equal value, each right is conceived of as equally important as every other. On this view, there can exist no potential for conflict between fundamental human rights. One is simply meant to attach equal moral weight to each and every human right. This prohibits arranging human rights in order of importance. However, conflict between rights can and does occur. Treating all human rights as of equal importance prohibits any attempts to address or resolve such conflict when it arises. Take the example of a hypothetical developing world country with severely limited financial and material resources. This country is incapable of providing the resources for realising all of the human rights for all of its citizens, though it is committed to doing so. In the meantime, government officials wish to know which human rights are more absolute than others, which fundamental human rights should it immediately prioritise and seek to provide for? This question, of course, cannot be answered if one sticks to the position that all rights are of equal importance. It can only be addressed if one allows for the possibility that some human rights are more fundamental than others and that the morally correct action for the government to take would be to prioritise these rights. A refusal to do so, no matter how consistent it may be philosophically would be tantamount to dogmatically sticking one's head in the metaphorical sands. Attempting to make such distinctions is, of course, a philosophically fraught exercise. It clearly requires the existence of some more ultimate criteria against which one can 'measure' the relative importance of separate human rights. This is a highly controversial issue within the philosophy of human rights and one which I shall return to when I consider how philosophers attempt to justify the doctrine of human rights. What remains to be addressed in our analysis of the concept of a human right are the questions of what adequately implementing human rights generally requires, and upon whom does this task fall; who has responsibility for protecting and promoting human rights and what is required of them to do so?
d. Scope of human rights duties
Human rights are said to be possessed equally, by everyone. A conventional corollary of this claim is that everyone has a duty to protect and promote the human rights of everyone else. However, in practice, the onus for securing human rights typically falls upon national governments and international, inter-governmental bodies. Philosophers such as Thomas Pogge (1995) argue that the moral burden for securing human rights should fall disproportionately upon such institutions precisely because they are best placed and most able to effectively perform the task. On this reading, non-governmental organizations and private citizens have an important role to play in supporting the global protection of human rights, but the onus must fall upon the relevant national and international institutions, such as the governments of nation-states and such bodies as the United Nations and the World Bank. One might wish to argue that, for example, human rights can be adequately secured by the existence of reciprocal duties held between individuals across the globe. However, 'privatizing' human rights in this fashion would ignore two particularly salient factors: individuals have a tendency to prioritise the moral demands of those closest to them, particularly members of their own family or immediate community; individuals' ability to exercise their duties is, to a large extent, determined by their own personal financial circumstances. Thus, global inequalities in the distribution of wealth fundamentally undermine the ability of those in the poorer countries to reciprocate assistance provided them by those living in wealthier countries. Reasons such as these underlie Pogge's insistence that the onus of responsibility lies at the level of national and international institutions. Adequately protecting and promoting human rights requires both nation-states ensuring the adequate provision of services and institutions for their own citizens and the co-operation of nation-states within international institutions acting to secure the requisite global conditions for the protection and promotion of everyone's human rights.
What must such bodies actively do to adequately secure individuals' human rights? Does my daughter’s human right to receive an adequate education require the education authority to do everything possible to assist and enhance my child's education? Does it require the provision of a world-class library, frequent study trips abroad, and employing the most able and best-qualified teachers? The answer is, of course, no. Given the relative scarcity of resources and the demands placed upon those resources, we are inclined to say that adequately securing individuals' human rights extends to the establishment of decent social and governmental practice so as to ensure that all individuals have the opportunity of leading a minimally good life. In the first instance, national governments are typically held to be primarily responsible for the adequate provision of their own citizens' human rights. Philosophers such as Brian Orend (2002) endorse this aspiration when he writes that the object of human rights is to secure 'minimal levels of decent and respectful treatment.' It is important to note, however, that the duty ensure the provision of even minimal levels of decent and respectful treatment cannot be strictly limited by national boundaries. The adequate protection and promotion of everyone's human rights does require, for example, the more affluent and powerful nation-states providing sufficient assistance to those countries currently incapable of adequately ensuring the protection of their own citizens' basic human rights. While some may consider Orend's aspirations for human rights to be unduly cautious, even the briefest survey of the extent of human suffering and deprivation in many parts of the world today is sufficient to demonstrate just how far we are from realizing even this fairly minimal standard.
National and international institutions bear the primary responsibility of securing human rights and the test for successfully fulfilling this responsibility is the creation of opportunities for all individuals to lead a minimally good life. The realization of human rights requires establishing the conditions for all human beings to lead minimally good lives and thus should not be confused as an attempt to create a morally perfect society. The impression that many have of human rights as being unduly utopian testifies less to the inherent demands of human rights and more to the extent to which even fairly modest aspirations are so far from being realized in the world today. The actual aspirations of human rights are, on the face of it, quite modest. However, this should not distract from a full appreciation of the possible force of human rights. Human rights call for the creation of politically democratic societies in which all citizens have the means of leading a minimally good life. While the object of individual human rights may be modest, the force of that right is intended to be near absolute. That is to say, the demands of rights are meant to take precedence over other possible social goals. Ronald Dworkin has coined the term 'rights as trumps' to describe this property. He writes that, 'rights are best understood as trumps over some background justification for political decisions that states a goal for the community as a whole.' (1977:153) In general, Dworkin argues, considerations of rights claims must take priority over alternative considerations when formulating public policy and distributing public benefits. Thus, for example, a minority's possession of rights against discriminatory treatment should trump any and all considerations of the possible benefits that the majority would derive from discriminating against the minority group. Similarly, an individual's right to an adequate diet should trump other individuals’ desires to eat lavish meals, despite the aggregate gain in pleasure these individuals would derive. For Dworkin, rights as trumps expresses the fundamental ideal of equality upon which the contemporary doctrine of human rights rests. Treating rights as trumps is a means for ensuring that all individuals are treated in an equal and like fashion in respect of the provision of fundamental human rights. Fully realizing the aspirations of human rights may not require the provision of 'state of the art' resources, but this should not detract from the force of human rights as taking priority over alternative social and political considerations.
4. Philosophical justifications of human rights
We have established that human rights originate as moral rights but that the successful passage of many human rights into international and national law enables one to think of human rights as, in many cases, both moral rights and legal rights. Furthermore, human rights may be either claim rights or liberty rights, and have a negative or a positive complexion in respect of the obligations imposed by others in securing the right. Human rights may be divided into five different categories and the principal object of securing human rights is the creation of the conditions for all individuals to have the opportunity to lead a minimally good life. Finally, human rights are widely considered to trump other social and political considerations in the allocation of public resources. Broadly speaking, philosophers generally agree on such issues as the formal properties of human rights, the object of human rights, and the force of human rights. However, there is much less agreement upon the fundamental question on how human rights may be philosophically justified. It would be fair to say that philosophers have provided many different, at times even conflicting, answers to this question. Philosophers have sought to justify human rights by appeal to single ideals such as equality, autonomy, human dignity, fundamental human interests, the capacity for rational agency, and even democracy. For the purposes of clarity and relative simplicity I will focus upon the two, presently most prominent, philosophical attempts to justify human rights: interests theory and will theory. Before I do that, it is necessary to address a prior question.
a. Do human rights require philosophical justification?
Many people tend to take the validity of human rights for granted. Certainly, for many non-philosophers human rights may all too obviously appear to rest upon self-evidently true and universally valid moral principles. In this respect, human rights may be perceived as empirical facts about the contemporary world. Human rights do exist and many people do act in accordance with the correlative duties and obligations respecting human rights entails. No supporter of human rights could possibly complain about such perceptions. If nothing else, the prevalence of such views is pragmatically valuable for the cause of human rights. However, moral philosophers do not enjoy such licence for epistemological complacency. Moral philosophers remain concerned by the question of the philosophical foundations of human rights. There is a good reason why we should all be concerned with such a question. What might be termed the 'philosophically naïve' view of human rights effectively construes human rights as legal rights. The validity of human rights is closely tied to, and dependent upon, the legal codification of human rights. However, as was argued earlier, such an approach is not sufficient to justify human rights. Arguments in support of the validity of any moral doctrine can never be settled by simply pointing to the empirical existence of particular moral beliefs or concepts. Morality is fundamentally concerned with what ought to be the case, and this cannot be settled by appeals to what is the case, or is perceived to be the case. From such a basis, it would have been very difficult to argue that apartheid South Africa, to take an earlier example, was a morally unjust regime. One must not confuse the law with morality, per se. Nor consider the two to be simply co-extensional. Human rights originate as moral rights. Human rights claim validity everywhere and for everyone, irrespective of whether they have received comprehensive legal recognition, and even irrespective of whether everyone is agreement with the claims and principles of human rights. Thus, one cannot settle the question of the philosophical validity of human rights by appealing to purely empirical observations upon the world. As a moral doctrine, human rights have to be demonstrated to be valid as norms and not facts. In order to achieve this, one has to turn to moral philosophy. Presently, two particular approaches to the question of the validity of human rights predominate: what might be loosely termed the 'interests theory approach' and the ‘will theory approach’.
b. The interests theory approach
Advocates of the interests theory approach argue that the principal function of human rights is to protect and promote certain essential human interests. Securing human beings' essential interests is the principal ground upon which human rights may be morally justified. The interests approach is thus primarily concerned to identify the social and biological prerequisites for human beings leading a minimally good life. The universality of human rights is grounded in what are considered to be some basic, indispensable, attributes for human well-being, which all of us are deemed necessarily to share. Take, for example, an interest each of us has in respect of our own personal security. This interest serves to ground our claim to the right. It may require the derivation of other rights as prerequisites to security, such as the satisfaction of basic nutritional needs and the need to be free from arbitrary detention or arrest, for example. The philosopher John Finnis provides a good representative of the interests theory approach. Finnis (1980) argues that human rights are justifiable on the grounds of their instrumental value for securing the necessary conditions of human well-being. He identifies seven fundamental interests, or what he terms 'basic forms of human good', as providing the basis for human rights. These are: life and its capacity for development; the acquisition of knowledge, as an end in itself; play, as the capacity for recreation; aesthetic expression; sociability and friendship; practical reasonableness, the capacity for intelligent and reasonable thought processes; and finally, religion, or the capacity for spiritual experience. According to Finnis, these are the essential prerequisites for human well-being and, as such, serve to justify our claims to the corresponding rights, whether they be of the claim right or liberty right variety.
Other philosophers who have defended human rights from an interests-based approach have addressed the question of how an appeal to interests can provide a justification for respecting and, when necessary, even positively acting to promote the interests of others. Such questions have a long heritage in western moral and political philosophy and extend at least as far back as the 17th. Century philosopher Thomas Hobbes. Typically, this approach attempts to provide what James Nickel (1987:84) has termed 'prudential reasons' in support of human rights. Taking as the starting point the claim that all human beings possess basic and fundamental interests, advocates of this approach argue that each individual owes a basic and general duty to respect the rights of every other individual. The basis for this duty is not mere benevolence or altruism, but individual self-interest. As Nickel writes, 'a prudential argument from fundamental interests attempts to show that it would be reasonable to accept and comply with human rights, in circumstances where most others are likely to do so, because these norms are part of the best means for protecting one's fundamental interests against actions and omissions that endanger them.' (ibid). Protecting one’s own fundamental interests requires others' willingness to recognize and respect these interests, which, in turn, requires reciprocal recognition and respect of the fundamental interests of others. The adequate protection of each individual's fundamental interests necessitates the establishment of a co-operative system, the fundamental aim of which is not to promote the common good, but the protection and promotion of individuals' self-interest.
For many philosophers the interests approach provides a philosophically powerful defence of the doctrine of human rights. It has the apparent advantage of appealing to human commonality, to those attributes we all share, and, in so doing, offers a relatively broad-based defence of the plethora of human rights considered by many to be fundamental and inalienable. The interests approach also provides for the possibility of resolving some of the potential disputes which can arise over the need to prioritise some human rights over others. One may do this, for example, by hierarchically ordering the corresponding interests identified as the specific object, or content, of each right.
However, the interests approach is subject to some significant criticisms. Foremost amongst these is the necessary appeal interests' theorists make to some account of human nature. The interests-approach is clearly operating with, at the very least, an implicit account of human nature. Appeals to human nature have, of course, proven to be highly controversial and typically resist achieving the degree of consensus required for establishing the legitimacy of any moral doctrine founded upon an account of human nature. For example, combining the appeal to fundamental interests with the aspiration of securing the conditions for each individual leading a minimally good life would be complicated by social and cultural diversity. Clearly, as the economic philosopher Amartya Sen (1999) has argued, the minimal conditions for a decent life are socially and culturally relative. Providing the conditions for leading a minimally good life for the residents of Greenwich Village would be significantly different to securing the same conditions for the residents of a shanty town in Southern Africa or South America. While the interests themselves may be ultimately identical, adequately protecting these interests will have to go beyond the mere specification of some purportedly general prerequisites for satisfying individuals' fundamental interests. Other criticisms of the interests approach have focused upon the appeal to self-interest as providing a coherent basis for fully respecting the rights of all human beings. This approach is based upon the assumption that individuals occupy a condition of relatively equal vulnerability to one another. However, this is simply not the case. The model cannot adequately defend the claim that a self-interested agent must respect the interests of, for example, much less powerful or geographically distant individuals, if she wishes to secure her own interests. On these terms, why should a purely self-interested and over-weight individual in, say, Los Angeles or London, care for the interests of a starving individual in some distant and impoverished continent? In this instance, the starving person is not in a position to affect their overweight counterpart's fundamental interests. The appeal to pure self-interest ultimately cannot provide a basis for securing the universal moral community at the heart of the doctrine of human rights. It cannot justify the claims of universal human rights. An even more philosophically oriented vein of criticism focuses upon the interests' based approach alleged neglect of constructive human agency as a fundamental component of morality generally. Put simply, the interests-based approach tends to construe our fundamental interests as pre-determinants of human moral agency. This can have the effect of subordinating the importance of the exercise of freedom as a principal moral ideal. One might seek to include freedom as a basic human interest, but freedom is not constitutive of our interests on this account. This particular concern lies at the heart of the so-called 'will approach' to human rights.
c. The Will Theory Approach
In contrast to the interests approach, the will theory attempts to establish the philosophical validity of human rights upon a single human attribute: the capacity for freedom. Will theorists argue that what is distinctive about human agency is the capacity for freedom and that this ought to constitute the core of any account of rights. Ultimately, then, will theorists view human rights as originating in, or reducible to, a single, constitutive right, or alternatively, a highly limited set of purportedly fundamental attributes. H.L.A. Hart, for example, inferentially argues that all rights are reducible to a single, fundamental right. He refers to this as 'equal right of all men to be free.' (1955:77). Hart insists that rights to such things as political participation or to an adequate diet, for example, are ultimately reducible to, and derivative of, individuals' equal right to liberty. Henry Shue (1996) develops upon Hart's inferential argument and argues that liberty alone is not ultimately sufficient for grounding all of the rights posited by Hart. Shue argues that many of these rights imply more than mere individual liberty and extend to include security from violence and the necessary material conditions for personal survival. Thus, he grounds rights upon liberty, security, and subsistence. The moral philosopher Alan Gewirth (1978, 1982) has further developed upon such themes. Gewirth argues that the justification of our claims to the possession of basic human rights is grounded in what he presents as the distinguishing characteristic of human beings generally: the capacity for rationally purposive agency. Gewirth states that the recognition of the validity of human rights is a logical corollary of recognizing oneself as a rationally purposive agent since the possession of rights are the necessary means for rationally purposive action. Gewirth grounds his argument in the claim that all human action is rationally purposive. Every human action is done for some reason, irrespective of whether it be a good or a bad reason. He argues that in rationally endorsing some end, say the desire to write a book, one must logically endorse the means to that end; as a bare minimum one's own literacy. He then asks what is required to be a rationally purposive agent in the first place? He answers that freedom and well-being are the two necessary conditions for rationally purposive action. Freedom and well-being are the necessary means to acting in a rationally purposive fashion. They are essential prerequisites for being human, where to be human is to possess the capacity for rationally purposive action. As essential prerequisites, each individual is entitled to have access to them. However, Gewirth argues that each individual cannot simply will their own enjoyment of these prerequisites for rational agency without due concern for others. He bases the necessary concern for others' human rights upon what he terms the 'principle of generic consistency' (PGC). Gewirth argues that each individual’s claim to the basic means for rationally purposive action is based upon an appeal to a general, rather than, specific attribute of all relevant agents. I cannot logically will my own claims to basic human rights without simultaneously accepting the equal claims of all rationally purposive agents to the same basic attributes. Gewirth has argued that there exists an absolute right to life possessed separately and equally by all of us. In so claiming, Gewirth echoes Dworkin's concept of rights as trumps, but ultimately goes further than Dworkin is prepared to do by arguing that the right to life is absolute and cannot, therefore, be overridden under any circumstances. He states that a 'right is absolute when it cannot be overridden in any circumstances, so that it can never be justifiably infringed and it must be fulfilled without any exceptions.' (1982:92). Will theorists then attempt to establish the validity of human rights upon the ideal of personal autonomy: rights are a manifestation of the exercise of personal autonomy. In so doing, the validity of human rights is necessarily tied to the validity of personal autonomy. On the face of it, this would appear to be a very powerful, philosophical position. After all, as someone like Gewirth might argue, critics of this position would themselves necessarily be acting autonomously and they cannot do this without simultaneously requiring the existence of the very means for such action: even in criticizing human rights one is logically pre-supposing the existence of such rights.
Despite the apparent logical force of the will approach, it has been subjected to various forms of criticism. A particularly important form of criticism focuses upon the implications of will theory for so-called 'marginal cases'; human beings who are temporarily or permanently incapable of acting in a rationally autonomous fashion. This would include individuals who have diagnosed from suffering from dementia, schizophrenia, clinical depression, and, also, individuals who remain in a comatose condition, from which they may never recover. If the constitutive condition for the possession of human rights is said to be the capacity for acting in a rationally purposive manner, for example, then it seems to logically follow, that individuals incapable of satisfying this criteria have no legitimate claim to human rights. Many would find this conclusion morally disturbing. However, a strict adherence to the will approach is entailed by it. Some human beings are temporarily or permanently lacking the criteria Gewirth, for instance, cites as the basis for our claims to human rights. It is difficult to see how they could be assimilated within the community of the bearers of human rights on the terms of Gewirth's argument. Despite this, the general tendency is towards extending human rights considerations towards many of the so-called 'marginal cases'. To do otherwise would appear to many to be intuitively wrong, if not ultimately defensible by appeal to practical reason. This may reveal the extent to which many peoples' support of human rights includes an ineluctable element of sympathy, taking the form of a general emotional concern for others. Thus, strictly applying the will theorists' criteria for membership of the community of human rights bearers would appear to result in the exclusion of some categories of human beings who are presently recognized as legitimate bearers of human rights.
The interests theory approach and the will theory approach contain strengths and weaknesses. When consistently and separately applied to the doctrine of human rights, each approach appears to yield conclusions that may limit or undermine the full force of those rights. It may be that philosophical supporters of human rights need to begin to consider the potential philosophical benefits attainable through combining various themes and elements found within these (and other) philosophical approaches to justifying human rights. Thus, further attempts at justifying the basis and content of human rights may benefit from pursuing a more thematically pluralist approach than has typically been the case to date.
5. Philosophical criticisms of human rights
The doctrine of human rights has been subjected to various forms of fundamental, philosophical criticism. These challenges to the philosophical validity of human rights as a moral doctrine differ from critical appraisals of the various philosophical theories supportive of the doctrine for the simple reason that they aim to demonstrate what they perceive to the philosophical fallacies upon which human rights are founded. Two such forms of critical analysis bear particular attention: one which challenges the universalist claims of human rights, and another which challenges the presumed objective character of human rights principles.
a. Moral relativism
Philosophical supporters of human rights are necessarily committed to a form of moral universalism. As moral principles and as a moral doctrine, human rights are considered to be universally valid. However, moral universalism has long been subject to criticism by so-called moral relativists. Moral relativists argue that universally valid moral truths do not exist. For moral relativists, there is simply no such thing as a universally valid moral doctrine. Relativists view morality as a social and historical phenomenon. Moral beliefs and principles are therefore thought of as socially and historically contingent, valid only for those cultures and societies in which they originate and within which they are widely approved. Relativists point to the vast array of diverse moral beliefs and practices apparent in the world today as empirical support for their position. Even within a single, contemporary society, such as the United States or Great Britain, one can find a wide diversity of fundamental moral beliefs, principles, and practices. Contemporary, complex societies are thus increasingly considered to be pluralist and multicultural in character. For many philosophers the multicultural character of such societies serves to fundamentally restrict the substance and scope of the regulative political principles governing those societies. In respect of human rights, relativists have tended to focus upon such issues as the presumed individualist character of the doctrine of human rights. It has been argued by numerous relativists that human rights are unduly biased towards morally individualist societies and cultures, at the necessary expense of the communal moral complexion of many Asian and African societies. At best, some human rights' articles may be considered to be redundant within such societies, at worse they may appear to be positively harmful if fully implemented, replacing the fundamental values of one civilization with those of another and thereby perpetuating a form of cultural and moral imperialism.
The philosophical debate between universalists and relativists is far too complex to adequately summarise here. However, certain immediate responses to the relativist critique of human rights are immediately available. First, merely pointing to moral diversity and the presumed integrity of individual cultures and societies does not, by itself, provide a philosophical justification for relativism, nor a sufficient critique of universalism. After all, there have existed and continue to exist many cultures and societies whose treatment of their own people leaves much to be desired. Is the relativist genuinely asking us to recognize and respect the integrity of Nazi Germany, or any other similarly repressive regime? There can be little doubt that, as it stands, relativism is incompatible with human rights. On the face of it, this would appear to lend argumentative weight to the universalist support of human rights. After all, one may speculate as to the willingness of any relativist to actually forego their possession of human rights if and when the social surroundings demanded it. Similarly, relativist arguments are typically presented by members of the political elites within those countries whose systematic oppression of their peoples has attracted the attention of advocates of human rights. The exponential growth of grass-roots human rights organizations across many countries in the world whose cultures are alleged to be incompatible with the implementation of human rights, raises serious questions as to the validity and integrity of such 'indigenous' relativists. At its worst, the doctrine of moral relativism may be being deployed in an attempt to illegitimately justify oppressive political systems. The concern over the presumed incompatibility between human rights and communal moral systems appears to be a more valid issue. Human rights have undeniably conceived of the principal bearer of human rights as the individual person. This is due, in large part, to the Western origins of human rights. However, it would be equally fair to say that the so-called 'third generation' of human rights is far more attuned to the communal and collective basis of many individuals' lives. In keeping with the work of political philosophers such as Will Kymlicka, there is increasing awareness of the need to tailor human rights principles to such things as the collective rights of minorities and, for example, these minorities' claims to such things as communal land rights. While human rights remain philosophically grounded within an individualist moral doctrine, there can be no doubt that attempts are being made to adequately apply and human rights to more communally oriented societies. Human rights can no longer be accused of being 'culture-blind'.
b. Epistemological criticisms of human rights
The second most important contemporary philosophical form of human rights' criticism challenges the presumed objective basis of human rights as moral rights. This form of criticism may be thought of as a river into which run many philosophical tributaries. The essence of these attempts to refute human rights consists in the claim that moral principles and concepts are inherently subjective in character. On this view moral beliefs do not emanate from a correct determination of a rationally purposive will, or even gaining insight into the will of some divine being. Rather, moral beliefs are fundamentally expressions of individuals' partial preferences. This position therefore rejects the principal ground upon which the concept of moral rights rests: that there exist rational and a priori moral principles upon which a correct and legitimate moral doctrine is to be founded. In modern, as opposed to ancient, philosophy this argument is most closely associated with the 18th. Century Scottish philosopher David Hume. More recently versions of it have been defended by the likes of C.L.Stevenson, Ludwig Wittgenstein, J.L.Mackie, and Richard Rorty. Indeed, Rorty (1993) has argued that human rights are based not upon the exercise of reason, but a sentimental vision of humanity. He insists that human rights are not rationally defensible. He argues that one cannot justify the basis of human rights by appeal to moral theory and the canons of reason since, he insists, moral beliefs and practices are not ultimately motivated by an appeal to reason or moral theory, but emanate from a sympathetic identification with others: morality originates in the heart, and not in the head. Interestingly, though unambiguously sceptical about the philosophical basis of human rights, Rorty views the existence of human rights as a 'good and desirable thing', something whose existence we all benefit from. His critique of human rights is this not motivated by an underlying hostility to the doctrine. For Rorty, human rights are better served by emotional appeals to identify with the unnecessary suffering of others, than by arguments over the correct determination of reason.
Rorty's emphasis upon the importance of an emotional identification with others is a legitimate concern. It may, for example, provide additional support for the philosophical arguments presented by the likes of Gewirth. However, as Michael Freeman has recently pointed out, 'Rorty's argument…confuses motivation and justification. Sympathy is an emotion. Whether the action we take on the basis of our emotions is justified depends on the reasons for the action. Rorty wishes to eliminate unprovable metaphysical theories from philosophy, but in his critique of human-rights theory he goes too far, and eliminates reasoning.' (2002:56) Rorty’s own account of the basis and scope of moral knowledge ultimately prohibits him from claiming that human rights is a morally desirable phenomenon, since he explicitly rules out the validity of appealing to the independently verifiable criteria required to uphold any such judgement. What we require from Rorty is an independent reason for accepting his conclusion. It is precisely this that he denies may be legitimately provided by moral philosophy.
Rorty aside, the general critique of moral objectivity has a long and very well-established heritage in modern moral philosophy. It would be false to claim that either the objectivists or the subjectivists have scored any ultimate 'knock-down' over their philosophical opponents. Human rights are founded upon the claim to moral objectivity, whether by appeal to interests or the will. Any critique of moral objectivism is bound, therefore, to have repercussions for the philosophical defence of human rights. As I noted above, philosophers such as Alan Gewirth and John Finnis, in their separate and different ways, have attempted to establish the rational and objective force of human rights. The reader interested in pursuing this particular theme further is therefore recommended to pursue a close philosophical analysis of either, or both, of these two philosophers.
Human rights have a long historical heritage. The principal philosophical foundation of human rights is a belief in the existence of a form of justice valid for all peoples, everywhere. In this form, the contemporary doctrine of human rights has come to occupy centre stage in geo-political affairs. The language of human rights is understood and utilized by many peoples in very diverse circumstances. Human rights have become indispensable to the contemporary understanding of how human beings should be treated, by one another and by national and international political bodies. Human rights are best thought of as potential moral guarantees for each human being to lead a minimally good life. The extent to which this aspiration has not been realized represents a gross failure by the contemporary world to institute a morally compelling order based upon human rights. The philosophical basis of human rights has been subjected to consistent criticism. While some aspects of the ensuing debate between philosophical supporters and opponents of human rights remain unresolved and, perhaps, irresolvable, the general case for human rights remains a morally powerful one. Arguably, the most compelling motivation for the existence of human may rest upon the exercise of imagination. Try imagining a world without human rights!
7. References and Further Reading
- Dworkin, Ronald. Taking Rights Seriously, (London: Duckworth, 1978)
- Freeman, Michael. Human Rights: An Interdisciplinary Approach, (Cambridge: Polity, 2002)
- Finnis, John. Natural Law and Natural Rights, (Oxford; Clarendon Press, 1980)
- Gewirth, Alan. Reason and Morality, (Chicago: Chicago University Press, 1978)
- Gewirth, Alan. Human Rights: Essays on Justification and Applications, (Chicago; University of Chicago Press, 1982)
- Jones, Peter. Rights, (Basingstoke; Macmillan, 1994)
- Mackie, J.L. Ethics: Inventing Right and Wrong, (Harmondsworth; Penguin, 1977)
- Nickel, James. Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights, (Berkeley; University of California Press, 1987)
- Rorty, Richard. "Human rights, rationality, and sentimentality". In S.Shute & S. Hurley (eds.) On Human Rights: the Oxford Amnesty Lectures 1993, (New York; Basic Books, 1993)
- Waldron, Jeremy. Theories of Rights, (Oxford; Oxford University Press, 1984) Chapters by Ronald Dworkin, Alan Gewirth, and H.L.A.Hart
University of Essex
Human rights are almost a form of religion in today's world. They are the great ethical yardstick that is used to measure a government's treatment of its people. A broad consensus has emerged in the twentieth century on rhetoric that frames judgment of nations against an international moral code prescribing certain benefits and treatment for all humans simply because they are human. Within many nations political debates rage over the denial or abuse of human rights. Even in prosperous, democratic countries like Canada much public discourse is phrased in the rhetoric of rights. Legal documents to protect human rights have proliferated in Canada, culminating in the 1982 entrenchment of the Charter of Rights in the Constitution. Especially since the advent of the Charter, many Canadians have claimed that particular benefits they desire are a matter of human rights and must be provided. Indeed, the claim that the desired benefit is a human right is often meant to undercut any opposition as unprincipled or even immoral.
Lost in much of the discussion is any justification for the high moral grounded occupied by human rights. Most political activists and commentators are content just to look at the United Nations' ever-growing body of human rights agreements as proof that these rights exist universally and therefore have to be respected by everyone. Domestic human rights legislation represents the local implementation of internationally-recognized rights that are universal and inalienable. Unfortunately, human rights are far more complicated phenomena than that.
Any inquiry into the origin, nature, and content of human rights reveals tremendous conceptual hurdles that need to be overcome before one can accept their pre-eminent authority. Indeed, many argue that the problems encountered in this analysis demonstrate that human "rights" are a misnomer, and that the rhetoric of human rights is really a description of ideals - and a controversial set of ideals at that.
The Historical Origins of Human Rights
Human rights are a product of a philosophical debate that has raged for over two thousand years within the European societies and their colonial descendants. This argument has focused on a search for moral standards of political organization and behaviour that is independent of the contemporary society. In other words, many people have been unsatisfied with the notion that what is right or good is simply what a particular society or ruling elite feels is right or good at any given time. This unease has led to a quest for enduring moral imperatives that bind societies and their rulers over time and from place to place. Fierce debates raged among political philosophers as these issue were argued through. While a path was paved by successive thinkers that lead to contemporary human rights, a second lane was laid down at the same time by those who resisted this direction. The emergence of human rights from the natural rights tradition did not come without opposition, as some argued that rights could only from the law of a particular society and could not come from any natural or inherent source. The essence of this debate continues today from seeds sown by previous generations of philosophers.
The earliest direct precursor to human rights might be found in the notions of `natural right' developed by classical Greek philosophers, such as Aristotle, but this concept was more fully developed by Thomas Aquinas in his Summa Theologica. For several centuries Aquinas' conception held sway: there were goods or behaviours that were naturally right (or wrong) because God ordained it so. What was naturally right could be ascertained by humans by `right reason' - thinking properly. Hugo Grotius further expanded on this notion in De jure belli et paci, where he propounded the immutability of what is naturally right and wrong:
Now the Law of Nature is so unalterable, that it cannot be changed even by God himself. For although the power of God is infinite, yet there are some things, to which it does not extend. ...Thus two and two must make four, nor is it possible otherwise; nor, again, can what is really evil not be evil. (1)
The moral authority of natural right was assured because it had divine authorship. In effect, God decided what limits should be placed on the human political activity. But the long-term difficulty for this train of political thought lay precisely in its religious foundations.
As the reformation caught on and ecclesiastical authority was shaken and challenged by rationalism, political philosophers argued for new bases of natural right. Thomas Hobbes posed the first major assault in 1651 on the divine basis of natural right by describing a State of Nature in which God did not seem to play any role. Perhaps more importantly, however, Hobbes also made a crucial leap from `natural right' to `a natural right'. In other words, there was no longer just a list of behaviour that was naturally right or wrong; Hobbes added that there could be some claim or entitlement which was derived from nature. In Hobbes' view, this natural right was one of self-preservation.
Further reinforcement of natural rights came with Immanuel Kant's writings later in the 17th century that reacted to Hobbes' work. In his view, the congregation of humans into a state-structured society resulted from a rational need for protection from each other's violence that would be found in a state of nature. However, the fundamental requirements of morality required that each treat another according to universal principles. Kant's political doctrine was derived from his moral philosophy, and as such he argued that a state had to be organized through the imposition of, and obedience to, laws that applied universally; nevertheless, these laws should respect the equality, freedom, and autonomy of the citizens. In this way Kant, prescribed that basic rights were necessary for civil society:
A true system of politics cannot therefore take a single step without first paying tribute to morality. ...The rights of man must be held sacred, however great a sacrifice the ruling power must make. (2)
However, the divine basis of natural right was still pursued for more than a century after Hobbes published his Leviathan. John Locke wrote a strong defence of natural rights in the late 17th century with the publication of his Two Treatises on Government, but his arguments were filled with references to what God had ordained or given to mankind. Locke had a lasting influence on political discourse that was reflected in both the American Declaration of Independence and France's Declaration of the Rights of Man and the Citizen, passed by the Republican Assembly after the revolution in 1789. The French declaration proclaimed 17 rights as "the natural, inalienable and sacred rights of man".
The French Declaration of Rights immediately galvanized political writers in England and provoked two scathing attacks on its notion of natural rights. Jeremy Bentham's clause-by-clause critique of the Declaration, entitled Anarchical Fallacies, argued vehemently that there can be no natural rights, since rights are created by the law of a society:
Right, the substantive right, is the child of law: from real laws come real rights; but from laws of nature, fancied and invented by poets, rhetoriticians, and dealers in moral and intellectual poisons come imaginary rights, a bastard brood of monsters, `gorgons and chimeras dire'. (3)
Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, - nonsense upon stilts. (4)
Edmund Burke also wrote a stinging attack on the French Declaration's assertion of natural rights, in which he argued that rights were those benefits won within each society. (5)The rights held by the English and French were different, since they were the product of different political struggles through history.
Soon after the attacks on the French Declaration, Thomas Paine wrote a defence of the conception of natural rights and their connection to the rights of a particular society. In The Rights of Man, published in two parts in 1791 and 1792, Paine made a distinction between natural rights and civil rights, but he continued to see a necessary connection:
Natural rights are those which appertain to man in right of his existence. Of this kind are all the intellectual rights, or rights of the mind, and also all those rights of acting as an individual for his own comfort and happiness, which are not injurious to the natural rights of others. Civil rights are those which appertain to man in right of being a member of society. Every civil right has for its foundation, some natural right pre-existing in the individual, but to the enjoyment of which his individual power is not, in all cases, sufficiently competent. Of this kind are all those which relate to security and protection.
(7) Rousseau then eleaborated a number of rights of citizens and limits on the sovereign's power.
This passage reflects another, earlier inspiration for human rights from the social contract views of writers such as Jean-Jacques Rousseau, who argued that people agree to live in common if society protects them. Indeed, the purpose of the state is to protect those rights that individuals cannot defend on their own. Rousseau had set the ground for Paine decades earlier with his Social Contract, in which he not only lambasted attempts to tie religion to the foundations of political order but disentangled the rights of a society from natural rights. In Rousseau's view, the rights in a civil society are hallowed: "But the social order is a scared right which serves as a basis for other rights. And as it is not a natural right, it must be one founded on covenants."
The debate in the late eighteenth century has left telling traces. Controversy continues to swirl over the question whether rights are creations of particular societies or independent of them.
Modern theorists have developed a notion of natural rights that does not draw its source or inspiration from a divine ordering. The ground work for this secular natural rights trend was laid by Paine and even Rousseau. In its place has arisen a variety of theories that are humanist and rationalist; the `natural' element is determined from the prerequisites of human society which are said to be rationally ascertainable. Thus there are constant criteria which can be identified for peaceful governance and the development of human society. But problems can develop for this school of thought when notions of a social contract are said to underlie the society from which rights are deduced.
Contemporary notions of human rights draw very deeply from this natural rights tradition. In a further extension of the natural rights tradition, human rights are now often viewed as arising essentially from the nature of humankind itself. The idea that all humans possess human rights simply by existing and that these rights cannot be taken away from them are direct descendants of natural rights.
However, a persistent opposition to this view builds on the criticisms of Burke and Bentham, and even from the contractarian views of Rousseau's image of civil society. In this perspective rights do not exist independently of human endeavour; they can only be created by human action. Rights are viewed as the product a particular society and its legal system.
In this vein, Karl Marx also left a legacy of opposition to rights that hindered socialist thinkers from accommodating rights within their theories of society. Marx denounced rights as a fabrication of bourgeois society, in which the individual was divorced from his or her society; rights were needed in capitalist states in order to provide protection from the state. In the marxist view of society, an individual is essentially a product of society and, ideally, should not be seen in an antagonistic relationship where rights are needed.(8) However, many socialists have come to accept certain conceptions of rights in the late twentieth century. (9)
Thus, the history of political philosophy has been one of several centuries of debate. The child of natural rights philosophers, human rights, has come to hold a powerful place in contemporary political consciousness. However, neither preponderant belief in, nor even a consensus of support for human rights do not answer the concerns raised by the earlier thinkers - are rights truly the product of a particular vision and laws of a society? Or, are human rights so inherent in humanness that their origins and foundations are incontestable?
A further difficulty, with profound implications, that human rights theories have to overcome is their emergence from these Western political traditions. Not only are they a product of European natural rights, but the particular rights that are viewed as `natural' have been profoundly shaped by the liberalism that emerged in the 19th and 20th centuries. With human rights, the rhetorical framework of the natural rights tradition has come to serve as a vehicle for the values of Western liberalism.
An easy and powerful criticism is that human rights cannot be universal. In their basic concept they are a Western creation, based on the European tradition that individuals are separable from their society. But one may question whether these rights can apply to collectivist or communitarian societies that view the individual as an indivisible element of the whole society. Westerners, and many others, have come to place a high value on each individual human, but this is not a value judgment that is universal. There is substantive disagreement on the extent of, or even the need for, any protection of individuals against their society.
In addition to this problem with the concept itself, there are strong objections to the
manner in which human rights have been conceptualized. Many lists of human rights read like specifications for liberal democracy. A variety of traditional societies can be found in the world that operate harmoniously, but are not based on equality let alone universal suffrage.
A question that will recur in later discussions is whether the `human rights' advocated today are really civil rights that pertain to a particular - liberal - conception of society. To a large extent, the resolution of this issue depends upon the ultimate goal of human rights. If human rights are really surrogate liberalism, then it will be next to impossible to argue their inherent authority over competing political values. In order for human rights to enjoy universal legitimacy they must have a basis that survives charges of ideological imperialism. Human rights must have a universally acceptable basis in order for there to be any substantial measure of compliance.
The Motivation for Human Rights
Some understanding about the nature of human rights can be gleaned from the various reasons that can be advanced for holding them. A prime concern is to offer protection from tyrannical and authoritarian calculations. Capricious or repressive measures of an autocratic government may be constrained with the recognition of supreme moral limits on any government's freedom of action. But even among governments that are genuinely limited by moral considerations, there may still be a need to shield the populace from utilitarian decision-making. The greater good of the whole society may lead to sacrifice or exploitation of minority interests. Or, the provision of important benefits within the society may be limited by calculations that public resources should be spent on other enterprises.
The attraction of human rights is that they are often thought to exist beyond the determination of specific societies. Thus, they set a universal standard that can be used to judge any society. Human rights provide an acceptable bench mark with which individuals or governments from one part of the world may criticize the norms followed by other governments or cultures. With an acceptance of human rights, Moslems, Hindus, Christians, capitalists, socialists, democracies, or tribal oligarchies may all legitimately censure each other. This criticism across religious, political, and economic divides gains its legitimacy because human rights are said to enshrine universal moral standards. Without fully universal human rights, one is left simply trying to assert that one's own way of thinking is better than somebody else's.
The prime rhetorical benefit of human rights is that they are viewed as being so basic and so fundamental to human existence that they should trump any other consideration. Just as Dworkin has argued that any conception of `rights' trumps other claims within a society, human rights may be of a higher order that supersedes even other rights claims within a society.(10)
Other motivations for human rights may stem from a fear of the consequences of denying their existence. Because of the currency given human rights in contemporary political debate, there is a danger that such a denial will provide support for brutal regimes who defend their repression on the grounds that international human rights norms are simply a fanciful creation that has no universal authority. The United Nations conference on human rights held in Vienna in 1993 saw some of the world's most repressive governments making precisely this argument, and few people would wish to provide further justification for this position. In addition, a great deal of political advocacy relies on human rights rhetoric to provide a legitimating moral force. Without the appeal to human rights, democratic champions would have to argue the desirability of values such as equality and freedom of speech across the often incomparable circumstances of the world's societies, rather than asserting that such benefits just inherently flow from human existence.(11)
Challenges to the Universality and Inalienability of Human Rights
Unfortunately, the very motivations and benefits of human rights pose direct challenges to their existence. Human rights are universal since they are said to belong to all humans in every society. Human rights are also supposed to be inalienable; because they flow from and protect human existence, they cannot be taken away without endangering the value of that existence. However, these universal and inalienable qualities of human rights are disputable in both their conception and operation.
To some extent, the universality of human rights depends upon their genesis. Moral standards, such as human rights, can come into being in two manners. They may simply be invented by people, or they may only need to be revealed to, or discovered by, humans. If human rights are simply an invention, then it is rather difficult to argue that every society and government should be bound by something they disagree with. If human rights have some existence independent of human creation, however, then it is easier to assert their universality. But such independent moral standards may arise in only two ways: if they are created by God, or if they are inherent in the nature of humankind or human society. Unfortunately, both these routes pose substantive pitfalls. No divine origin for universal human rights would be acceptable, nor is it often advanced, since there is no one God that is recognized universally; just because Christians or Moslems claim that their divinity has ordained and proscribed certain treatment of humans does not provide the legitimacy needed for that moral code to bind devotees of another religion. The alternative origin that could justify universality would be the acceptance of human rights as natural rights that anyone could deduce from the nature of humankind or human society. However, an atheistic critique of divine moral standards is just as telling when applied to rights derived from human nature. The God or human nature that is said to be the source of human rights may be nothing more than an invention of the human mind, an invention that may vary according to whoever is reflecting on the issue. A less astringent argument is still just as damning. Even if one accepts that there is a God or a core human nature, there is no definitive way to sort out differing visions that people have of God or human nature. The universal authority of any particular view is initially endorsed only by the adherents of that view. Nevertheless it is possible for human rights to have their genesis in religion or the prerequisites of human society. Even if human rights start within a specific religious or societal tradition, they could acquire universality as other people come to agree. It is also possible for human rights to become globally recognized because several different approaches may reach the same conclusion. For instance, atheistic natural rights theorists, Christians, and Muslims, may all eventually agree for quite different reasons on a number of ways in which people should be treated; these then can form the basis of human rights standards. However, the different paths to that agreement only lead to an agreement on the benefits, not necessarily on their origin, justification, or application. The differences become important when one moves from a focus on the benefits identified as "human rights" to their practical operation; there is, as will be discussed below, a great difference between a duty-based and claim-based fulfillment of the benefits.
Another set of problems arise if human rights are creations, pure and simple, of the human intellect. Human rights standards could be created in a variety of ways. In one method, a gradual growth of consensus builds around norms of behaviour that eventually acquire an obligatory character. It may be difficult to trace the epistemological origins of this consensus, but the end result is a broad base of agreement that human beings should be treated in certain ways. In another method, there may be a conscious attempt to create binding rules of behaviour in a more contractarian manner. A certain group of individuals or state governments may lead the development of international agreements on human rights. And, as more states join in these agreements, the moral and legal force of the international accords become stronger and stronger. Essentially this is the course that has been followed in the development of the human rights documents created by the United Nations and other regional international organizations.
In both these approaches to the creation of human rights, the motivation may be principled or consequentialist. If principled, human rights are necessary because they reflect certain moral standards of how humans should be treated. If consequentialist, human rights are needed because they standards may prevent the awful repercussions of having no limits on the manner in which governments or groups may treat other human beings.
Beyond the genesis of human rights, wherever they come from, lies a fundamental challenge to their universality, regardless of their origin. With any inception of human rights, one is faced with having to acquire acceptance of their authority. There is a problem in that not everyone will share the same motivation or inspiration for human rights. Not everyone will agree that everything asserted as a human right is indeed one. At a very basic level, the proclamation and acceptance of human rights norms inherently involves majoritarian morality. Human rights are agreed to exist because a majority says they do. Specific goods and benefits are treated as human rights because a majority says they do. But, what of the minorities who object to the concept of universal human rights, or disagree with the particular entitlements to be included in lists of human rights? Why should they be bound by what others believe? What happens when a minority sincerely believe that some benefit being deliberately denied them by the majority is a matter that they view as a human right? In many specific human rights contexts, a problem of moral majoritarianism assumes central importance.
With either an invented or natural genesis, human rights are meant to protect some aspect of humanity. Human rights may be those entitlements that we have by virtue of being human, but there are real difficulties in determining which attributes of human life require protection under human rights standards.
Basic human traits are determined by both physical attributes and the activities undertaken by a human. The most obvious physical qualities encompass gender, race, size, shape, and health - including disabilities. Among human activities, one can distinguish between those necessary for sustaining life and those which fill that life. The requirements for sustaining life include nourishment, shelter, clothing, and sleep. Proper health care is needed for human life to be sustained in the long term. And the human species can only survive with procreation. But most humans do not merely exist, they fill their lives with myriad activities. Perhaps the most important activity is that which is usually referred to in order to distinguish humans from all other animals: humans have a creative imagination that provides higher forms of thought that lead to intellectual inquiry and spirituality. Humans also communicate constantly the results of their thinking. Physical movement from one place to another is another continuous activity of all but the most disabled humans. Human beings are in essence very social animals and much of our activities take place through associating with other humans. In some instances this association is the special intimacy of kinship or close friendships. In others, humans act gregariously with acquaintances and many perfect strangers.
The consequences of this gregariousness furnish the underlying problems of establishing universality in the human attributes described above. Most humans live within readily identifiable social units, such as family, tribal, or national groups, that fundamentally shape the manner in which an individual's most basic characteristics are manifested. These social groupings determine what languages one learns to speak, the style of dress, acceptable foods, religion, form of communication and etiquette, sense of physical beauty and ugliness, the kind of shelter, and the notion of division of roles within one's social groupings. These are not simply superficial differences. While some individuals willingly adopt new life styles, many believe that their lives can only be satisfying by maintaining their traditional ways. For some, indeed, styles of dress, food, and behaviour are inextricably linked to deep religious beliefs. One group's delicacies or even staples may be quite unacceptable to others. There may be just disdain or revulsion, such as the reaction of many people to eating raw fish, or there may be a strong, religious offence taken to certain foods, such as offering pork to Moslems or beef to Hindus.
Thus, many profound differences emerge among human beings that are the product of where they were born and with whom they grew up. While one could identify various qualities of human life that are universal, there is tremendous variation in the manner in which those qualities are realized.
These acquired societal values pose difficulties when they define, or even conflict with, the basic attributes of human life listed earlier. Individual societies develop particular conceptions of what constitutes a dignified life, the essential needs of humans, as well as the relationship between individuals and their community. Particularly complex issues arise when there is a clash between conflicting spiritual and temporal values within or between societies. These difficulties come to the forefront when one tries to ascertain whether global standards can be set by human rights on the treatment that must be given to all human beings.
The Theoretical Foundation of Human Rights
Several competing bases have been asserted for universal human rights. It is essential to understand these various foundations, since they can result in quite different understandings of the specific benefits protected by human rights. As well, each approach to human rights has different strengths and vulnerabilities in facing the challenges posed by relativism and utilitarianism.
Many have argued that human rights exist in order to protect the basic dignity of human life. Indeed, the United Nations Declaration on Human Rights embodies this goal by declaring that human rights flow from "the inherent dignity of the human person". Strong arguments have been made, especially by western liberals, that human rights must be directed to protecting and promoting human dignity. As Jack Donnelly has written, "We have human rights not to the requisites for health but to those things `needed' for a life of dignity, for a life worthy of a human being, a life that cannot be enjoyed without these rights" (original emphasis).(12) This view is perhaps the most pervasively held, especially among human rights activists; the rhetoric of human-rights disputes most frequently invokes this notion of striving for the dignity that makes human life worth living. The idea of promoting human dignity has considerable appeal, since human life is given a distinctive weight over other animals in most societies precisely because we are capable of cultivating the quality of our lives.
Unfortunately, the promotion of dignity may well provide an unstable foundation for the construction of universal moral standards. The inherent weakness of this approach lies in trying to identify the nature of this dignity. Donnelly unwittingly reveals this shortcoming in expanding upon the deliberate human action that creates human rights. "Human rights represent a social choice of a particular moral vision of human potentiality, which rests on a particular substantive account of the minimum requirements of a life of dignity".(13)
Dignity is a very elastic concept and the substance given to it is very much a moral choice, and a particular conception of dignity becomes paramount. But, who makes this choice and why should one conception prevail over other views of dignity? Even general rejection of outlandish assertions of dignity may not indicate agreement on a core substance. There might be widespread derision of my assertion that I can only lead a truly dignified life if I am surrounded by 100 doting love-slaves. But a disapproval of the lack of equality in my vision of dignity does not necessarily demonstrate that equality is a universal component of dignity. While one of the most basic liberal beliefs about human dignity is that all humans are equal, social division and hierarchy play important roles in aspects of Hindu, Confucian, Muslim, and Roman Catholic views of human life. Indeed, `dignity' is often achieved in these views by striving to fulfill one's particular vocation within an ordered set of roles. But, if human rights are meant to be universal standards, the inherent dignity that is supposed to be protected should be a common vision. Without sufficient commonality, dignity cannot suffice as the ultimate goal of human rights.
An alternative basis for human rights draws from the requisites for human well-being. One advocate of this approach, Allan Gewirth, would agree with Donnelly that human rights are drawn in essence from humankind's moral nature, but Gewirth does not follow Donnelly's conclusion that human rights are a moral vision of human dignity. Rather, Gewirth argues that "agency or action is the common subject of all morality and practice".(14) Human rights are not just a product of morality but protect the basic freedom and well-being necessary for human agency. Gewirth distinguished between three types of rights that address different levels of well-being. Basic rights safeguard one's subsistence or basic well-being. Nonsubtractive rights maintain the capacity for fulfilling purposive agency, while additive rights provide the requisites for developing one's capabilities - such as education. Gewirth differentiates between these rights because he accepts that humans vary tremendously in their capacity for purposive agency. Through what he calls the principle of proportionality, humans are entitled to those rights that are proportionate to their capacity for agency. Thus, individuals who are comatose only have basic rights to subsistence, since they are incapable of any purposive action.
Gewirth's approach, however, has been strongly criticized by those who argue that human rights cannot be universal if they are derived from one's capacity for agency. Indeed Douglas Husak has used Gewirth's theories to argue that there can be no rights that extend to all human beings.(15) Husak makes the crucial distinction between humans and persons, and he points out that some humans may be considered non-persons because they are incapable of ever performing any purposive agency. Even if one accepts Gewirth's rebuttal that all humans are entitled to at least basic rights because they are either prospective or former purposive agents, there still remains in his theory the notion some will find unsettling: not all humans possess all human rights to the same degree (or at all).
Another basis for human rights has been put forward by John O'Manique that is based on evolution and human development.(16) O'Manique was motivated by the desire to find a truly universal basis for human rights theories that are not as susceptible, as is dignity, to controversial interpretations or denial by others. Thus, human rights should be founded upon something inherent to humans rather than some moral vision that is created by human action. O'Manique argues that a satisfactory basis may lie in the following set of propositions:
P1 I ought to survive
P2 X is necessary for my survival
P3 Therefore, I ought to do/have X.
(18) He does concede that there are religious beliefs that hold that a person's life can be sacrificed, but usually this sacrifice is done to further the survival of others. So O'Manique determines, "The exceptions do not `prove' the rule, but they do point to the strong probability that the belief that survival is good is found, explicitly or implicitly, in almost all human beings". (19) One might add that some value in human survival may be found in any society, since no culture comes to mind that has tolerated unrestricted, recreational homicide. O'Manique also draws from theories of evolution to establish that the goal of humans has to be the survival of the species. So, there would be universal agreement with the statement, "Humans ought to survive". But survival of the group, community, or human species is very different from the survival of each and every particular individual.
The real hurdle in this set of propositions lies in finding agreement in P1. The requisites for survival are fairly easily ascertained by scientific inquiry. Thus if there is concordance on the notion I ought to survive, then the logical construction of this model produces the conclusion that one ought to have X if it is necessary to survival. O'Manique is on fairly firm ground when he asserts that, "The belief that survival is good is virtually universal".
O'Manique develops his theory much beyond the notion of survival. Indeed, he explicitly dismisses the idea that the source of human rights lies in the needs for human subsistence. O'Manique wishes to propel human rights into a further plane, by basing human survival upon the full development of human potential. The initial proposition P1 in the model above really becomes "I ought to develop". As O'Manique says, "Human aspirations are not to the maintenance of existence but to the fulfilment of life... If we believe that one ought to survive, it is because we believe that one ought to develop".(20) In O'Manique's vision, human rights would include rights to things needed for subsistence but also go on to cover all aspects of intellectual and emotional development. He tries to limit in some way the range by insisting that the needs for development can be ascertained through research. However, he also reveals the broad sweep of matters that could be included when he addresses this issue: "The existence of such needs for human development - the need for association with other human beings, for self expression, for some control over one's destiny, and even the need for love and for beauty - can be observed and even empirically confirmed within the social sciences and psychology". (21) O'Manique may well lose some support with this incredibly vast range of issues that he would include within the human rights rubric.
A fundamental difficulty with using the fulfillment of human development as a basis for human rights is that it can have a meaning that is relative to each culture and individual. This relativism even creeps into O'Manique's discussion when he concludes, "A community and its members will develop to the extent that the members of the community support the development needs of others in the community, in ways that are appropriate to that community" (emphasis added).(22) Just what is needed for fulfillment in expression, love, or autonomy will be given profoundly different interpretations in Bedouin, German, or Japanese societies. O'Manique tries to address this aspect of his theory by conceding that the specific entitlements necessary to human development may vary over space and time, but the general grounds for those claims will remain constant.
The final alternative basis for human rights would provide the needs for human existence.(23) Human rights may be limited to providing all humans with the needs for their physical subsistence. But, this subsistence would involve a certain degree of minimal comfort beyond merely keeping one's organs working, because human subsistence also consists of being able to function. Advocates of the other approaches to human rights have dismissed needs to subsistence as too narrow a foundation, but this criticism may not account for the ramifications that flow from the range of human needs. Human rights would guarantee the provision of the food, clothing, and shelter without which anyone would perish. In addition, basic health care assures human survival; my grandmother died in 1924 from appendicitis, while I am alive today because an operation was available for my own attack of appendicitis in 1968. Since most households are not simply provided with the requisites to life but buy them with the wages of their labour, one can easily extend the range of human rights into other benefits relating to the work force. This extension is particularly true if the satisfaction of needs is accomplished not by directly supplying the specific goods needed, but in providing the capacity for individuals to provide for themselves. In a broad socialist view, work should be guaranteed to all that are capable. In a more restricted view, the education necessary to obtaining the work needed to sustain oneself is a human right. Thus, human rights can cover a large, and very expensive, array of social-welfare programs. Quite a fundamental reformation of most political systems would occur if governments seriously addressed welfare programs as essential human rights.
There are some distinct advantages in basing human rights on the needs of subsistence. The prime benefit lies in a universality possible with this foundation that eludes the other approaches to human rights that have been outlined above. One might possibly find a similar consensus on the propositions "Humans should survive", "Humans should develop", "Humans should lead a life of dignity (or well being)". However, there will be much less disagreement over what is meant by, or needed for, `survival' than one will find for `dignity', `well-being', or `development'. Human rights based on subsistence can be much more readily applied as global standards.
Nevertheless, there is still some concern with variations that will result from different societies' views of the specific ways in which needs should be satisfied. As noted earlier, different cultures have quite diverse notions of what food, dress, or shelter are acceptable. There are even profound differences in approaches to health care, with some societies rejecting `western' medicine in favour of spiritually-based theories of ailments and therapies.
There is also a concern that it is just not practical to translate the proposition that humans in general should survive into concrete action to ensure that each and every human being survives. There is a point at which no society can afford to devote the resources needed to keep every individual alive as long as possible.
These four approaches to human rights reflect quite different inspirations and ultimate goals, but there is common ground among them. Theories of human rights based on dignity, well-being, or development all are motivated by a desire to protect and cultivate some quality of life; because one is alive, one should lead a life filled with dignity, well-being, or continuing development. A view of human rights based on subsistence is ultimately concerned with simply preserving life itself. But this distinction should not ignore an overlap, as a common ground among all theories of human rights is the assumption that human rights include subsistence rights. Approaches based on dignity, well-being, and development add protections for these qualities of life onto the right to existence, although subsistence rights often seem to be forgotten.
However, the recognition of these common aspects of the four theories of human rights should not lead one to conclude that their differences are simply ones of emphasis. The distinctive focus of each theory results in significant variations in their lists of specific human rights or the kind of activities humans may indulge in. Human rights based on subsistence would not include the range of democratic rights that most liberals argue are an essential element of human rights based on dignity. Some liberals would argue that a life without dignity may not be a life worth living; so disenfranchised, repressed people - such as Iraqi Kurds - may be justified in an armed rebellion involving deaths but which ultimately brought liberty to the whole population. However, a human rights approach based on subsistence may require on a non-violent strategy for political change since the preservation of life is the ultimate goal.
In the end, the choice of foundation for human rights may depend upon what one wishes to protect. One may be alarmed that democratic rights or equality may not be included in a human rights approach based on subsistence, in which case a theory based on liberal dignity would be adopted. But consequentialist motivations will not serve as a firm basis upon which to promote human rights among those who do not share one's concerns.
These discussions illustrate that the foundation for human rights may be neither self-evident nor universally accepted. One chooses, explicitly or implicitly a particular justification or basis for human rights, and that choice will have important consequences upon the range of benefits that fall within human rights. Choice pervades human rights from their conception to their delivery, and those choices may well undermine the very foundation of human rights' moral authority.
Who Holds Human Rights?
Even if there were agreement upon a foundation for human rights, there remains another fundamental question: who can possess human rights? One may simply assert that all humans hold all human rights; after all, human rights are said to be those benefits to which we are entitled simply by being human. But what is meant by being `human' is vague since the life cycle of homo sapiens ranges from conception to death and decay. There is profound controversy over how and when a human acquires and then loses human rights between those two periods. Even before conception, sperm and eggs exist that contain human genetic material. One may decide easily that these are human cells but not `human beings', because they contain incomplete sets of human genes. After conception, however, controversies arise about the status of the developing foetus. From a mass of undifferentiated cells, the embryo quickly grows into a recognizably human entity. Many distinguish foetuses from babies that have emerged from their mothers and say that separate human life only begins with `birth'. This can be an arbitrary distinction since a very premature baby is at much the same stage of development whether inside or outside the womb; the differences centre on how a baby receives nutrition and oxygen. One can specify an arbitrary point for the acquisition of rights, such as conception, neural development, viability, or emergence from the womb. But this approach is bound to erupt in controversy, because not everyone will agree on a given point. Abortion is such a divisive issue precisely because various groups hold different beliefs about when human life starts.
Alternatively, one can argue that there is some special quality of human life that provides a basis for possessing rights; when that quality is acquired, so are rights. This approach is favoured by many, since it allows for the distinction between humans and other animals. Human rights are rights particular to human beings, thus the basis of the claim to rights should be something that differentiates humans from other animals. With a sharing of an enormous proportion of genetic material between humans and primates, the distinction is usually drawn on the basis of some quality of human life not shared by other animals rather than physiological characteristics. Specifically human qualities are usually identified from our capacity for intellectual, moral, or spiritual development.
The difficulty with trying to assign rights on the basis of some quality of human life is that not all human beings may possess such an attribute. Douglas Husak has written a poignant critique of the notion of human rights based on his objection that some human beings merely exist.(24) Some mentally-ill patients lack any basis for purposive agency; they are seemingly unaware of their surroundings, incapable of rationale thought, or unable to distinguish right from wrong. But, his most telling arguments arise from comatose patients, notably those with no known chance for recovery. Husak distinguishes between humans and persons, and he points out that some humans, such as the comatose, are non-persons. Persons are human beings with capacities beyond mere existence that produce a quality of life. Non-persons simply lack the qualities of life that one wishes either to protect or use as the key to acquiring rights. The distinction between humans and persons is often used to justify aborting foetuses, because the human foetus is not considered by many to be a person. In the end, Husak argues that the phenomena called human rights are really rights of persons: "There are no human rights". (25)
This debate over the qualification of a human creature to possess human rights is fundamental to a number of topics. The rights of children and the mentally ill may depend greatly upon what foundation one adopts for the possession of rights. Similarly, the existence of rights to life in abortion, infanticide, and euthanasia are directly related to what status one accords to undeveloped foetuses, mutant newborns, or terminally-comatose adults.
If human rights are justified on some characteristics of the human species, can those rights be held by individual humans who lack these species traits? Some answer this question by distinguishing between possessing rights and exercising them. Thus a healthy child may possess the full range of human rights, but be unable to exercise them, particularly rights of an intellectual nature. Others may find this distinction too convenient an answer and contest the very existence of rights that cannot by exercised by their holders.
Another controversy over the possession of human rights relates to whether they are benefits intended for individual humans, or whether they can also be collective benefits for groups of humans. Some, such as Donnelly, argue that human rights are properly held by only individuals.(26) Others contend that human lives are lived within group settings and the full enjoyment of human life can only be realized when those groups are able to flourish. Whether human rights can include collective rights is a particularly crucial issue in analyzing whether the human rights regime protects a group's culture and language, or a group's right to self-determination.
What are the `Rights' in Human Rights?
The nature of human rights is complicated even beyond the controversy over their source or who may hold them. A critical debate continues over what is meant by human rights. The universality and inalienability of a human right depends to a large extent on the character of the `right' involved.
It is necessary first of all to distinguish between the adjectival use of the word `right', which means good or proper, from the substantive `a right', which is a special, possessable benefit. Not everything which is right (good) is a right, although many people mistakenly inflate the concept of a right by asserting benefits they believe are `right' to be `rights'. This confusion has become evident in the assertion of what are known as `second-generation human rights' - such as the right to economic development and prosperity - and `third generation human rights' - which cover the rights to world peace and a clean environment. While some human rights advocates accept the inclusion of these benefits as rights, others argue that prosperity and peace are `right' but not substantive rights.
Even with the substantive term `a right', however, there are several different meanings. In 1919, Wesley Hohfeld laid down a useful set of four distinctive connotations that can be given to the phrase "A has a right to X".(27) Perhaps the most common meaning given to this phrase conveys the notion of a claim-right. It is a claim that A has against a correlative duty of another, B; A has a right to X, and B has a duty to let A have or do X. The duty B has may be positive, in the sense that action is required on B's part to allow A to enjoy X; if A has a right to health care, B has a duty to provide it. There may also be a negative duty, in the sense of B having to refrain from interfering in A's possession of benefit X; if A has a right to privacy, B must refrain from prying in A's affairs. It is important to note that the duty may be owed by a particular person or official, or the duty may generally lie in the whole community. The essential characteristic of a claim-right is the inherent connection between A's claim to a benefit and B's duty - A can make a claim that B must perform the duty.
However, there are other connotations of the phrase `A has a right to X' that do not involve a corresponding duty on another's part. The term may mean that A has a liberty with respect to X. In this view, A has no obligation not to do or have X, which may be different from the status of other people. Also, A can make no claim against another, because no-one else as a duty with respect to A's enjoyment of X. A liberty may be enjoyed by all, such as the right to wear what one pleases while doing household chores. A subset of liberty is privilege, because A may have no duty not to do X but others do. For instance, in some English colleges the dons have a right to walk across the grass in the quadrangle, although others must use the pathways instead. In any liberty there is no duty on anyone to provide the X involved; i.e., no-one has a duty to provide the lawns simply for the dons to walk upon.
To say that `A has a right to X' may also indicate that A has a power to effect changes in X. Thus an owner of a bicycle has the right to sell it, and a customs officer has the right to confiscate property or detain people at the border.
Hohfeld's fourth interpretation of `A has a right to X' conveys the notion that A has an immunity that B is unable to change. Thus, MP's have a right to free speech that protects them from prosecution for speeches given in the House of Commons, and it is a right which cannot be changed by the executive, police, or courts.
There are other uses of `having a right' that should be added to those identified by Hohfeld, because these other uses refer to ideals, needs, or wants that are simply expressed as rights. The confusion between adjectival and substantive right has led to the frequent use of rights to describe ideals. Thus, the rights to prosperity and peace are ideals or goals to strive for that some express as rights. Another confusion arises when people assert a right to a benefit because it fills a need. But, not all needs are rights; I may need a car to drive to work in, but few would agree that I have a right to a car. Finally, many confuse benefits they want with benefits they have a right to; free, post-secondary education and complete bursaries may be desirable, but are not viewed as rights by many.
These uses of rights also involve a confusion between making a claim and having a right.(28) One does not hold a right simply because one claims so, neither is it necessary to make claims in order to possess rights. It is not the act of claiming that creates rights. Thus, the claim to a right to prosperity or world peace does not establish that those benefits exist as rights. Neither does the fact that someone satisfies another's claim confirm a right's existence; a beggar may claim a right to $5 from a businessman, who may give the money, but that does not establish the beggar's right to it.
It is important also to note that one may benefit from another's duty, without having a right to that benefit. Christians may believe that they have a duty to give money to charity, but that does not mean that charities have a right to Christians' money.
These different notions of `right' are important to bear in mind when discussing human rights. The most common interpretation given to the `right' in human rights is that of claim-rights. There is a defined benefit to which individuals are entitled, and there is a correlative duty on others in relation to that benefit. This tendency may be partly due to the increasing codification of human rights into legal documents. It is far more efficacious if human rights are conceived of as claim-rights, because those who are deprived of their rights may argue that others (usually their government) must be compelled to fulfill a duty to provide the benefit. Since much human rights activism centres on the respect for rights contained in international agreements, it is natural for attention to centre on governments as duty-holders since they are the entities directly bound by the human rights documents.
If human rights are claim-rights with a correlative duty on some body to provide or safeguard the benefit, however, a major problem arises in identifying that duty-holder. Most often it is assumed that if an individual is being denied some human right, the duty falls on their government to rectify the situation.
A serious difficulty emerges if the correlative duty lies only with an individual's government, however, because the abuse of human rights may occur by private individuals or corporations. For example, tremendous injustices result from the caste system in India because of the way people treat others who belong to a lower caste. In this instance, the actual infringement of human rights is largely perpetrated by individuals rather than the government. While the government has accepted a responsibility to try and end the practise, caste is so deeply entrenched in Indian society that it has so far proved impossible to stamp out.
A further complication arises when a government either is incapable of providing a benefit protected by human rights - such as the Ethiopian government's inability to provide food during the worst of the famines - or when a government simply fails to respect human rights. If an individual's government is the central duty-holder, then the rest of the world can shake their heads saying 'tut-tut' without feeling any sense of duty to intervene. Other governments may feel bound to act, but that feeling of obligation may simply come from their own sense of altruism rather than a belief that human rights bind all governments to help if the government most directly responsible fails to fulfill its duties. Another scenario may arise when government leaders believe that a duty to help lies directly with its citizens rather than the government. Former Premier Van der Zalm of British Columbia argued in the 1980s that it was not his government's responsibility to provide resources to food banks that were struggling with soaring numbers of impoverished individuals. His view was that such acts of charity are best left to private individuals. One could develop this notion by asserting that every individual owes a duty to help others in their community, and that the government would be eroding this private duty if it intervened; indeed a government should not support food banks, in order to foster a relief effort by the members of the community. Another difficulty arises in those parts of the world where the state structure has dissolved into anarchy, such as occurred in Somalia and Lebanon; where there are no governments, are there no duty-holders? There is also a strong feminist critique of the idea that governments are the sole duty holders; Gayle Binion argues that non-government actors may be absolved of responsibility or left unimpeded in their ill-treatment of women.(29)
Complex problems arise because there are many possible duty-holders. If human rights set moral standards for the treatment of all humans, those standards should bind anyone who is capable of infringing those rights - be they corporations, governments, or other human beings. Thus, the correlative duties involved in human rights as claim-rights are duties that do not necessarily reside solely with an individual's government. The violation of some human right may be perpetrated by one individual against others, such as an employer who discriminates against a racial group in hiring. Or, a duty to respect human rights may be held by a group within society, such as a religious majority's obligation to tolerate other religious practices. There may be a general duty on the community to act collectively, as with the example of community efforts to run food banks. An individual's own government often has a direct duty, for example, to refrain from arbitrary detention and torture. On some occasions, many will argue that foreign governments have a duty to intervene; for instance, the Front Line States in southern Africa believed they had some duty to help liberate the black majority from apartheid in South Africa. Finally, there may be a duty that lies with all humanity; such an obligation is often expressed in private, international relief movements to alleviate suffering among famine victims. Governments may only be intermediary duty-holders who should try and intervene to safeguard human rights from actions by their citizens, but those citizens bear the direct duty to respect the human rights of others.
With any form of rights, but particularly with claim-rights, there are problems that arise with their definition, exercise, and enforcement. There may be conflicting views even on the existence of a particular right. For example, some islamic governments have denied that there can be freedom of religion because the Koran proclaims that one of the greatest sins for a muslim is to forsake Islam for another religion. Even if there is agreement in principle on the existence of a particular right, there may be conflicts over what activities or goods are specifically protected by that right. In Canada, for instance, judges have been divided over whether the freedom of expression includes communications between prostitutes and their clients.(30) There can also be profound debate when two or more rights conflict in a given situation. A continuing problem is posed for women's rights by several religions that stipulate particular roles for women that are subservient to men; in these instances the right to equality conflicts with the freedom of religion. Another difficulty may arise over whether a benefit is really a claim-right, with correlative duties, or some other type of right or claim without corresponding obligations. For instance, academic freedom may be viewed as either a privilege or a claim-right. If a claim-right is involved, there may still be many questions about who in particular holds a correlative duty, and what type of action is required to satisfy that duty. For example, if there is a right to health care, must it be provided by the government or charities; and, must the health care be provided free of charge?
A central dilemma revolves around how to settle these questions of enforcement. If human rights operate uniquely in a moral plane, then the definition, acceptance, and respect for rights can involve a controversial, tortuous route. In the end, fulfillment of human rights will depend upon a spirit of consensus and the effect of community opprobrium. Disputes that involve profoundly different value systems, however, may go unresolved. With the codification of human rights into legal documents, one may limit some of the range of debate, but only with institutional structures for adjudicating can there be authoritative resolutions. Controversial interpretations of human rights are not eliminated with the creation of agencies to enforce human rights. The record of national courts reveal that judges within the same society can be deeply divided over the definition and enforcement of human rights; for example, almost 31 percent of the Supreme Court of Canada's Charter of Rights decisions between 1983 and 1989 involved dissenting opinions, where one or more judges disagreed completely with their colleagues on the resolution of the rights issues at stake.(31) Within many societies there are patterns of deference to the judiciary that allows their court's majority view to settle authoritatively most disputes over human rights. However, some societies are so divided that deference is not voluntarily given, such as enforced black acquiescence to the white judiciary in South Africa during the apartheid regime, and the discretionary choices made by judges will not be accepted as final resolutions of rights disputes. There is an even deeper problem if international institutions are to adjudicate rights disputes that involve societies with very different cultural norms; losing parties may simply not recognize the adjudicators' authority to impose what are seen as alien values. In these circumstances, codified human rights will end up operating on much the same plane as purely moral standards.
These introductory discussions about the origin and nature of human rights pose significant challenges to their operation as universal standards of behaviour. Fundamentally diverging foundations for human rights may be given, that ultimately must rely upon either divine revelation, human reason extrapolating from nature, or deliberate human invention and agreement. Even if a satisfactory basis for human rights can be constructed, further fundamental challenges emerge to both the `human' and `rights' dimensions of human rights. It is not self-evident what it is about humans that generates the moral entitlement to certain benefits, neither is the status clear of those humans who do not share these qualities. A particular problem is posed by the manner in which these benefits are asserted to be `rights', since this concept can operate in practical circumstances as a liberty, power, immunity, or claim-right. The locus of any corresponding duty for a claim-right is no less problematic. Consequently human rights must be examined more closely, because they are at once so important and yet so vulnerable to probing questions about their origin, foundation, substance, and operation.
Canadians, among others, may readily embrace the rhetoric of human rights. But we do need to ask whether these human rights are really civil rights, in the sense of belonging to a particular conception of society. By studying the theoretical under-pinning of human rights, as well as their operation in the context of specific practical rights issues, we may come to a fuller appreciation of the extent to which human rights depend upon deliberate (although often obscured) policy choices.
1. Hugo Grotius,The Law of War and Peace, ....p.22
2. Immanuel Kant, "Perpetual Peace," in Hans Reiss (ed.),Kant: Political Writings, 2nd.ed., Cambridge: Cambridge University Press, 1991, p.125. Note, however, that Kant did not believe that the citizenry could revolt against the sovereign for a misuse of power; thus, the rights of mankind in a Kantian society would lack the ultimate in political enforcement.
3.Jeremy Bentham, "Anarchical Fallacies; being an examination of the Declaration of Rights issues during the French Revolution", in Jeremy Waldron (ed.),Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man, New York: Methuen, 1987, p.69.
4.Jeremy Bentham, p.53.
5.Edmund Burke, Reflections on the Revolution in France.
6.Thomas Paine, The Rights of Man, New York: Penguin Books, 1985, p.68.
7. Jean-Jacques Rousseau,The Social Contract, Maurice Cranston (trans.), Baltimore: Penguin, 1968, p.50. For Rousseau's views of the connection between religion and the state, see: Book IV, ch.8.
8.See Karl Marx, "On the Jewish Question", Jeremy Waldron (ed.), Nonsense Upon Stilts.
9.For a full discussion see: Tom Campbell, The Left and Rights: A Conceptual Analysis of the Idea of Socialist Rights, London: Routledge and Kegan Paul, 1983.
10. Ronald Dworkin, "Rights as Trumps".........
11. Douglas Husak, "The Motivation for Human Rights", (1985) 11Social Theory and Practice, 249-255. If rights are not inherent to all humans, there is also a fear that non-person humans - such as the comatose - will not be protected from ill-treatment. For a discussion of these points see: Douglas N. Husak, "Why there are no Human Rights", (1984) 10 Social Theory and Practice, 125-141.
12.Jack Donnelly, Universal Human Rights in Theory and Practice, Ithaca: Cornell University Press, 1989, p.17.
14. Allan Gewirth, "Why There Are Human Rights", (1985) 11Social Theory and Practice, 235-248, at p.235.
15. Douglas Husak, "Why There Are No Human Rights", (1984) 10Social Theory and Practice, 125-141.
16. John O'Manique, "Universal and Inalienable Human Rights: A Search for Foundations", (1990) 12Human Rights Quarterly 465-485.
18. Ibid., p.473.
19. Ibid., p.473.
20. Ibid., p.475.
22. Ibid., p.481.
23. A recent needs-based approach to human rights is found in: Johan Galtung,Human Rights in Another Key, Cammbridge, Mass: Polity Press, 1994.
24.Douglas Husak, "Why There Are No Human Rights", (1984) 10 Social Theory and Practice, 125-141.
27. Wesley N. Hohfeld,Fundamental Legal Concepts as Applied in Judicial Reasoning, (New Haven: Yale University Press, 1919). For a clear summary of this work see Jeremy Waldron, Theories of Rights, (New York: Oxford University Press, 1984), pp.6-10.
28.For a discussion of the relationship between claims and rights see Alan R. White, Rights, (Oxford: Oxford University Press, 1984), pp.115-132.
29.Gayle Binion, "Human Rights: A Feminist Perspective," (1995) 17 Human Rights Quarterly 515-20.
30. The Manitoba Court of Appeal held that prostitutes' communications were not included in the freedom of expression embodied in the Canadian Charter of Rights and Freedoms. However, this decision was overturned in the Supreme Court of Canada, where a majority declared that these communications were included in the general right.
31. Andrew D. Heard, "The Charter in the Supreme Court of Canada: The Importance of Which Judges Hear an Appeal", (1991) 24Canadian Journal of Political Science 289-307, at p.297.