The philosophy of human rights attempts to examine the underlying basis of the concept of human rights and critically looks at its content and justification. Several theoretical approaches have been advanced to explain how and why the concept of human rights developed.
One of the oldest Western philosophies on human rights is that they are a product of a natural law, stemming from different philosophical or religious grounds. Other theories hold that human rights codify moral behavior which is a human social product developed by a process of biological and social evolution (associated with Hume). Human rights are also described as a sociological pattern of rule setting (as in the sociological theory of law and the work of Weber). These approaches include the notion that individuals in a society accept rules from legitimate authority in exchange for security and economic advantage (as in Rawls) – a social contract. The two theories that dominate contemporary human rights discussion are the interest theory and the will theory. Interest theory argues that the principal function of human rights is to protect and promote certain essential human interests, while will theory attempts to establish the validity of human rights based on the unique human capacity for freedom.[1]
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Natural law theories base human rights on a "natural" moral, religious or even biological order that is independent of transitory human laws or traditions.
Socrates and his philosophic heirs, Plato and Aristotle, posited the existence of natural justice or natural right (dikaion physikon, δικαιον φυσικον, Latin ius naturale). Of these, Aristotle is often said to be the father of natural law,[2] although evidence for this is due largely to the interpretations of his work by Thomas Aquinas.[3]
The development of this tradition of natural justice into one of natural law is usually attributed to the Stoics.[4]
Some of the early Church Fathers sought to incorporate the until then pagan concept of natural law into Christianity. Natural law theories have featured greatly in the philosophies of Thomas Aquinas, Francisco Suárez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, and John Locke.
In the 17th century Thomas Hobbes founded a contractualist theory of legal positivism beginning from the principal that man in the state of nature, which is to say without a "commonwealth" (a state) is in a state of constant war one with the other and thus in fear of his life and possessions (there being no property nor right without a sovereign to define it). Hobbes asserted natural law as was how a rational human, seeking to survive and prosper, would act; the first principle of natural law being to seek peace, in which is self-preservation. Natural law (which Hobbes accepted was a misnomer, there being no law without a commonwealth) was discovered by considering humankind's natural interests, whereas previous philosophers had said that natural rights were discovered by considering the natural law. In Hobbes' opinion, the only way natural law could prevail was for men to agree to create a commonwealth by submitting to the command of a sovereign, whether a man or an assembly of men. In this lay the foundations of the theory of a social contract between the governed and the governor.
Hugo Grotius based his philosophy of international law on natural law. He wrote that "even the will of an omnipotent being cannot change or abrogate" natural law, which "would maintain its objective validity even if we should assume the impossible, that there is no God or that he does not care for human affairs." (De iure belli ac pacis, Prolegomeni XI). This is the famous argument etiamsi daremus (non esse Deum), that made natural law no longer dependent on theology.
John Locke incorporated natural law into many of his theories and philosophy, especially in Two Treatises of Government. Locke turned Hobbes' prescription around, saying that if the ruler went against natural law and failed to protect "life, liberty, and property," people could justifiably overthrow the existing state and create a new one.
The Belgian philosopher of law Frank Van Dun is one among those who are elaborating a secular conception[5] of natural law in the liberal tradition. There are also emerging and secular forms of natural law theory that define human rights as derivative of the notion of universal human dignity.[6]
The term "human rights" has replaced the term "natural rights" in popularity, because the rights are less and less frequently seen as requiring natural law for their existence.[7] But in actual fact, the campaigning for the legal recognition of new "human rights" (such as a right to practise a homosexual lifestyle, or euthanasia) must necessarily be based on the assumption that some kind of "Natural Law" commands the recognition of those "rights". The debate on human rights remains thus a debate around the correct interpretation of Natural Law, and human rights themselves a positive, but reductionist, expression thereof[8]
The English philosopher Thomas Hobbes suggested the existence of a hypothetical social contract where a group of free individuals agree for the sake of preservation to form institutions to govern them. They give up their natural complete liberty in exchange for protection from the Sovereign. This led to John Locke's theory that a failure of the government to secure rights is a failure which justifies the removal of the government, and was mirrored in later postulation by Jean-Jacques Rousseau in his "Du Contrat Social" (The Social Contract).
International equity expert Paul Finn has echoed this view:
| “ | the most fundamental fiduciary relationship in our society is manifestly that which exists between the community (the people) and the state, its agencies and officials. | ” |
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—Paul Finn[9] |
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The relationship between government and the governed in countries which follow the English law tradition is a fiduciary one. In equity law, a politician's fiduciary obligations are not only the duties of good faith and loyalty, but also include duties of skill and competence in managing a country and its people. Originating from within the Courts of Equity, the fiduciary concept exists to prevent those holding positions of power from abusing their authority. The fiduciary relationship between government and the governed arises from the governments ability to control people with the exercise of its power. In effect, if a government has the power to abolish any rights, it is equally burdened with the fiduciary duty to protect such an interest because it would benefit from the exercise of its own discretion to extinguish rights which it alone had the power to dispose of.[9]
The Golden Rule, or the ethic of reciprocity states that one must do unto others as one would be treated themselves; the principle being that reciprocal recognition and respect of rights ensures that one's own rights will be protected. This principle can be found in all the world's major religions in only slightly differing forms, and was enshrined in the "Declaration Toward a Global Ethic" by the Parliament of the World's Religions in 1993.
Soviet concept of human rights was different from conceptions prevalent in the West. According to Western legal theory, "it is the individual who is the beneficiary of human rights which are to be asserted against the government", whereas Soviet law declared that state is the source of human rights.[10][11] Therefore, Soviet legal system regarded law as an arm of politics and courts as agencies of the government.[12] Extensive extra-judiciary powers were given to the Soviet secret police agencies. The regime abolished Western rule of law, civil liberties, protection of law and guarantees of property.[13][14] According to Vladimir Lenin, the purpose of socialist courts was "not to eliminate terror ... but to substantiate it and legitimize in principle".[12]
Crime was determined not as the infraction of law, but as any action which could threaten the Soviet state and society. For example, a desire to make a profit could be interpreted as a counter-revolutionary activity punishable by death.[12] The liquidation and deportation of millions peasants in 1928–31 was carried out within the terms of Soviet Civil Code.[12] Some Soviet legal scholars even asserted that "criminal repression" may be applied in the absence of guilt.".[12] Martin Latsis, chief of the Ukrainian Cheka explained: "Do not look in the file of incriminating evidence to see whether or not the accused rose up against the Soviets with arms or words. Ask him instead to which class he belongs, what is his background, his education, his profession. These are the questions that will determine the fate of the accused. That is the meaning and essence of the Red Terror."[15]
The purpose of public trials was "not to demonstrate the existence or absence of a crime – that was predetermined by the appropriate party authorities – but to provide yet another forum for political agitation and propaganda for the instruction of the citizenry (see Moscow Trials for example). Defense lawyers, who had to be party members, were required to take their client's guilt for granted..."[12]
The philosopher John Finnis argues that human rights are justifiable on the grounds of their instrumental value in creating the necessary conditions for human well-being.[16][17] Interest theories highlight the duty to respect the rights of other individuals on grounds of self-interest:
| “ | Human rights law, applied to a State's own citizens serves the interest of states, by, for example, minimizing the risk of violent resistance and protest and by keeping the level of dissatisfaction with the government manageable | ” |
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—Niraj Nathwani in Rethinking refugee law[18] |
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The biological theory considers the comparative reproductive advantage of human social behavior based on empathy and altruism in the context of natural selection.[19][20][21]
Human security is an emerging school of thought which challenges the traditional, state-based conception of security and argues that a people-focused approach to security is more appropriate in the modern interdependent world and would be more effective in advancing the security of individuals and societies across the globe.
Philosophers who have criticized the concept of human rights include Jeremy Bentham, Edmund Burke, Friedrich Nietzsche and Karl Marx.[22] A recent critique has been advanced by Charles Blattberg in his essay "The Ironic Tragedy of Human Rights." Blattberg argues that rights talk, being abstract, demotivates people from upholding the values that rights are meant to affirm.[23] In his book After Virtue, Alasdair MacIntyre claimed the concept that all human beings have certain rights simply by virtue of being human was illogical, stated "the best reason for asserting so bluntly that there are no such rights is indeed of precisely the same type as the best reason which we possess for asserting that there are no witches and the best reason which we possess for asserting that there are no unicorns: every attempt to give good reasons for believing there are such rights has failed."[24]
In On the Jewish Question, Karl Marx criticized Declaration of the Rights of Man and of the Citizen as bourgeois ideology:
and that:
Thus for Marx, liberal rights and ideas of justice are premised on the idea that each of us needs protection from other human beings. Therefore liberal rights are rights of separation, designed to protect us from such perceived threats. Freedom on such a view, is freedom from interference. What this view denies is the possibility — according to Marx, the fact — that real freedom is to be found positively in our relations with other people. It is to be found in human community, not in isolation. So insisting on a regime of rights encourages us to view each other in ways which undermine the possibility of the real freedom we may find in human emancipation.
Marxist critical theorist Slavoj Žižek argued that: "liberal attitudes towards the other are characterized both by respect for otherness, openness to it, and an obsessive fear of harassment. In short, the other is welcomed insofar as its presence is not intrusive, insofar as it is not really the other. Tolerance thus coincides with its opposite. My duty to be tolerant towards the other effectively means that I should not get too close to him or her, not intrude into his space—in short, that I should respect his intolerance towards my over-proximity. This is increasingly emerging as the central human right of advanced capitalist society: the right not to be 'harassed', that is, to be kept at a safe distance from others." and "universal human rights are effectively the right of white, male property-owners to exchange freely on the market, exploit workers and women, and exert political domination."[25]
Henry of Ghent articulated the theory that every person has a property interest in their own body.[26] John Locke uses the word property in both broad and narrow senses. In a broad sense, it covers a wide range of human interests and aspirations; more narrowly, it refers to material goods. He argues that property is a natural right and it is derived from labour.[27] In addition, property precedes government and government cannot "dispose of the estates of the subjects arbitrarily." To deny valid property rights according to Locke is to deny human rights. The British philosopher had significant impacts upon the development of the Government of the UK and was central to the fundamental founding philosophy of the United States. Karl Marx later critiqued Locke's theory of property in his Theories of Surplus Value, seeing the beginnings of a theory of surplus value in Locke's works. In Locke's Second Treatise he argued that the right to own private property was unlimited as long as nobody took more than they could use without allowing any of their property to go to waste and that there were enough common resources of comparable quality available for others to create their own property. Locke did believe that some would be more "industrious and rational" than others and would amass more property, but believed this would not cause shortages. Though this system could work before the introduction of money, Marx argued in Theories of Surplus Value that Locke's system would break down and claimed money was a contradiction of the law of nature on which private property was founded.[28]