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.
For several centuries Aquinas' conception held sway: there were goods or behaviours that were naturally right or wrong because God ordained it so. 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. 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 on the divine basis of natural right by describing a State of Nature in which God did not seem to play any role. 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.
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The rights of man must be held sacred, however great a sacrifice the ruling power must make. 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 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. 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 and , 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. 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. 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. 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. 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. 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.
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.
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. 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 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.
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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. 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.
1. The General Idea of Human Rights
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. 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.
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.
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 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.
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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". 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. 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. Thus, human rights should be founded upon something inherent to humans rather than some moral vision that is created by human action. 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 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".
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But survival of the group, community, or human species is very different from the survival of each and every particular individual. 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. Unfortunately, learners from one or more of the following countries or regions will not be able to register for this course: Iran, Cuba and the Crimea region of Ukraine.
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Share this course on twitter. Share this course on linkedin. Share this course via email. Prerequisites None. Interested in this course for your Business or Team? Train your employees in the most in-demand topics, with edX for Business. Purchase now Request Information. About this course The course commences through exploring the development of the conventional understanding of universal human rights and then moves to critiquing this concept from cultural relativist, postmodern, postcolonial and feminist perspectives. What you'll learn On successful completion of this course you will be able to: describe and critique human rights theories and philosophies critically analyse political, policy and moral issues using a human rights framework.
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