Author Name:   Ranjini2

The concept of human rights is an essentially contested concept, with legal , moral and political connotations . The central questions that have engaged philosophers relate to whether human rights are a part of moral rights or legal rights . And whether we have any human rights at all

 Human Rights: Some Philosophical Issues

The issue of human rights has acquired significance in the last sixty years or so . The concept of human rights has legal , moral and political connotations . In recent years human rights has become central to issues of migration and torture . The United Nations adopted the Universal Declaration of Human Rights(UDHR) in December 1948. This inaugurated a new period of thinking about human rights since it was based on the idea of the inherent dignity of human beings and the universality of their rights. The UDHR basically said that human beings have certain rights and that these rights were an existing moral reality . It emphasized socio-economic rights along with civil and political rights. For example Article 23 talks about the right to work. However we must remember that even before 1948 , the American Declaration of Independence (1776) and the French Declaration of the Rights of Man (1789) also mentioned a concept of rights held by humanity. The idea of natural rights were discussed in the works of Locke and Kant.

Central to any discussion of human rights are four main questions:

1. What is the nature of human rights and whether they are a subset of moral rights or legal rights?
2. What is the justification of human rights?
3. Which human rights can be called real human rights?
4. Are there human rights at all?

Nature of Human Rights

It has been held by many philosophers that all human beings possess certain natural rights simply by virtue of the fact that they are human beings. The naturalistic conception of human rights says that human rights are moral rights that all human beings possess at all times and all places in virtue of their being human . The UDHR also states that all human beings are born free and equal in dignity and rights. This view postulates an equal moral status for all human beings notwithstanding physical , social and cultural differences . Since all human beings are morally equal therefore all human beings deserve similar kind of protection of human rights. Brian Tierney in his book The Idea of Natural Rights(2001) argues that the idea of natural rights did not emerge in Europe with the emergence of individualism as is popularly believed but it emerged in the twelfth century in the writings of Canon Lawyers who wrote about rights possessed by people in the sense of powers or capacities .Natural rights emerge from qualities that human beings possess like rationality and their need for integration into society. He also argues that natural rights are just one element of morality among others . There are other moral considerations like duties without counterpart rights like duties of charity . Natural Rights emerged in Western consciousness only as one element of moral concern . They do not exhaust the category of other moral concerns. The naturalistic conception of human rights also bases itself on the view that all human beings have equal moral status . Some have argued that the mentally insane and children are not right holders. Peter Singer has argued that the argument of the moral superiority of human beings is a form of prejudice just like racism and sexism.

But this naturalistic conception of human rights has been criticized and contested by John Rawls and others. The alternative “political” conceptions of human rights argues that human rights should be understood in the context of its function in modern international political practice. John Rawls has argued that human rights are a small subset of rights that can be guaranteed in a liberal democratic society . In his book The Law of Peoples (1999) Rawls was concerned with the charge of ethnocentrism made against the conception of human rights as being essentially a western model to be imposed on other cultures. For him human rights includes rights such as freedom from slavery , liberty of conscience , security from genocide etc. As per his argument many of the rights contained in UDHR are not human rights but merely liberal aspirations . A freedom of religion, as per his view , would not be a human right but the right to be free from religious persecution is another matter . There is a right to subsistence but not a right to a certain standard of living . According to his logic the right to work as mentioned in Article 23 in the UDHR would not be a right . The solution given by Rawls to the problem of ethnocentric conception of human rights is to narrow down the set of human rights itself. Another line of reasoning given by Rawls is that we should not defend human rights on the basis of metaphysical or philosophical doctrines. When we say that all human beings should have basic human dignity or are images of God may not be accepted by people of different cultures. He argues that certain basic minimum human rights should be guaranteed under an agreement by liberal states . These rights could also be accepted by decent non-liberal states . Hence Rawls has attempted to delink the concept of human rights from objective ethical truths . Rawls agrees that intervention in a state would be justified if the most basic human rights are not secured by a state . Only if the list of human rights is minimal can coercive intervention by other states be justified if these rights are violated. If a society can be called legitimate internally then certain basic rights have to be guaranteed . This will also ensure freedom from external intervention by other states.

John Tasioulas has commented in an interview to Fivebooks.com that the Rawlsian conception of human rights is a distinctively American approach to human rights in that human rights are not so much rights we have to comply with as what others have to comply with if they have to avoid external intervention . Therefore the Rawlsian conception of human rights is a conception of thin rights that sets limits to external intervention . If a state violates minimum rights then it becomes liable to coercive intervention . Therefore the political conception of human rights challenges the view that human beings posses rights in virtue of being human . Many philosophers of this persuasion have also argued that human rights are morally justified legal rights rather than pre-legal moral rights. It has also been argued that to say that all human beings at all times and places had human rights is absurd. The right to education could not have applied to the ancient Greek , China or Middle Ages. The political conception of human rights conceptualizes human rights as boundary conditions for a state’s autonomy.

Justification of Human Rights

Those who argue that human beings have rights simply because they are human beings see the justification for rights in terms of protection of some distinctly human features. Justification of human rights is seen in instrumental terms in that human rights are seen as essential means to realizing some valued features of human life. These features are appeals to the notion of agency , the notion of good life and the notion of basic needs. The agency argument says that what distinguishes humans from animals is the capacity to have a conception of good life. The notion of human dignity is seen as the capacity to pursue a good life . Therefore human rights are seen as protecting this capacity . But the problem with this view is that children and mentally retarded cannot be autonomous moral agents and so by this view they cannot have human rights. In order to get over this problem some philosophers have conceptualized human rights as grounded in a plurality of goods required for a good life. The elements of a good life according to this view basically derive their view from the Aristotelian view of Eudaimonia. Therefore the basic forms of human good include freedom from pain , knowledge , personal relations , aesthetic experience , sociability and religion . The justification for human rights , then , is seen as protecting conditions necessary to pursue a good life.

James Griffin in his book On Human Rights (2008) connects human rights to moral philosophy. Griffin sees a continuity between human rights and natural rights . This continuity can be seen in one way by saying that all human beings possess rights simply by virtue of their humanity . Another way is through moral reasoning in our ordinary discourse . When we talk about duties and promises and injunctions not to kill people , they are all a kind of moral reasoning . It is through such reasoning that we can identify human rights primarily as moral concern. Griffin argues that human rights are protections of the value of personhood . The value of personhood can be broken down into the values of autonomy , liberty and minimum material provisions . He sees these three values as three super-human rights and applicable across all human beings. Griffin contends that these values are universally valid and that personhood is a valuable quality exemplified by all human beings . Human rights have their role in protecting this personhood and human dignity. John Tasioulas characterizes Rawls as a functionalist since Rawls sees human rights as performing political functions . Griffin is a foundationalist because he connects human rights to the foundational ethical value of personhood.
Justification of human rights has also been related to the concept of human needs . There are certain basic human needs that have to be met for a decent existence and therefore certain basic human rights are required to guarantee these needs. Amartya Sen and Martha Nussbaum have argued for a Capabilities Approach . Capabilities are the real opportunities available to individuals to achieve certain functioning. In contrast to instrumental justification of human rights , some philosophers like Thomas Nagel have argued that we hold human rights independent of whether these rights promote or protect our morally autonomous status or our basic needs and freedoms . The non-instrumental viewpoint argues that human rights express the worth of a person rather than what is in the interest of a person.

Real Human Rights

The trajectory of human rights has been seen through three generations: civil and political rights , social rights and lastly group rights and right to peace and development . The concept of human rights has been considerably expanded by the UDHR. Some rights so conceptualized , like the right to employment , periodic holidays with pay , medical care and housing have been subjects of controversy . Some international declarations on human rights have also mentioned a child’s right to be loved and the human right to assisted suicide . The whole concept of socio economic rights is often criticized as being sham in countries where the legitimacy of the government itself is questionable . The concept of group human rights postulates two types of such rights . One type of human right is the right held by individuals on the basis of membership to a particular group like being a woman , a child or a member of a minority group. The other type of group right is the right held by a group as a whole and an example of such a right would be the right to self-determination of a group.

Genuine Human Rights

A common object of criticism has been the view that the concept of human rights is essentially a Western concept of a universal order that does not accept cultural relativism . Cultural relativism grounds the concept of human rights in socially defined cultural codes . But the response to this view has been that there are basic human rights possessed by everybody in virtue of their being humans even though the origin of the conception may be Western . The universal validity of Newton’s Law of Gravitation is not compromised by the fact that it is a western discovery . Relativism argues that the conceptions of good life are essentially debatable . The minimalist view of human rights would argue that certain human rights are fundamental for basic human needs or capabilities and such rights need to be protected irrespective of the society . The solution to the problem of cultural relativism was proposed by John Rawls as we discussed earlier . According to him we should not base human rights on theological and moral conceptions of human beings since they may not be accepted by people holding incompatible philosophical and religious views. Rawls thinks that we should instead think of human rights as an element of the “ law of peoples”. The law of peoples is a set of principles on which well ordered peoples from different religious and moral backgrounds can agree. There can be agreement , Rawls believes among different societies about the role of human rights in international peace and a minimum list of such rights will set the boundary for intervention in the internal autonomy of states .
It has been argued that human beings never had any pre-existing natural rights . The most famous proponent of this view was Jeremy Bentham who thought that the idea of natural rights is “nonsense on stilts”. The implication of this view is that rights are only creations of law and rights are not simply a matter of morality . It is only law that can confer rights. John Tasioulas has argued that the principle of maximizing happiness given by Bentham is itself a moral principle given by law. Therefore if we can have one normative principle independent of law why can we not have another principle that confers rights? . Hence it is not acceptable that only real rights are those that are given by law.

Richard Rorty on Human Rights

The American philosopher Richard Rorty has essentially argued that we cannot justify human rights; reason is a useless apparatus to promote human rights ; and we should instead concentrate on sentimental education . In his famous book Philosophy and the Mirror of Nature(1979) he argued that traditionally philosophy has been centered on questions of knowledge and the study of mind . Traditional philosophers from Descartes to Kant tried to establish through knowledge a representational relation between ideas and reality . Rorty wrote that “ to know is to represent accurately what is outside the mind”. This was the core of the representationalist paradigm . Language has an important role between the self and reality . It determines the way we think .Without language we cannot access reality and so we cannot know whether our language accurately represents reality . Our language is contingent because we use language for accidental reasons . Therefore our search for Truth is contingent upon language . We are unable to find absolute justification for our beliefs because we cannot step outside the limits of our language to understand the reality -in-itself. Rorty proposed that we should give up the philosophical quest of truth through knowledge . Instead of a representationalist paradigm he argued for a more pragmatic conception of creating a more democratic society . He is more concerned with what works . He says that in matters of human rights appeals to reason and knowledge will be of no use . The Serbian torturers did not see their victims as Muslims who were part of humanity . The Nazis also were aware that many Jews were clever and learned but that did not prevent them from killing them . The Kantian notions of treating human beings as ends do not come to help in cases of genocide . Rorty says that we should be grateful to Plato and Kant because they thought of Cosmopolitan Utopias . The way to promote cosmopolitan utopias is through sentimental education . Sentimental education proposes to acquaint peoples with different ethnicities to see the similarities amongst them rather than differences . Rorty believes that a properly functioning human rights culture results from security and sympathy.

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Bibliography
1. Cruft , Rowan , S. Matthew Liao and Massimo Renzo , eds. , Philosophical Foundations of Human Rights , Oxford University Press , 2013.
2. Tasioulas , John , “On the Foundations of Human Rights” in Rowan Cruft ed. , , Philosophical Foundations of Human Rights , Oxford University Press , 2013.
3. Tierney , Brian , The Idea of Natural Rights , W.B.Erdmans Publishing Company , 2001.
4. Rawls , John , The Law of Peoples , Harvard University Press, 1999.
5. Tasioulas , John , “ Human Rights”, Fivebooks.com , January 15 , 2016.
6. Griffin , James, On Human Rights , Oxford University Press , 2008.
7. Rorty , Richard , Philosophy and the Mirror of Nature , Princeton University Press, 1979.
8. Fernandes, Patricia , “ Richard Rorty on Rights”, Philosophy Now , February/March 2017.

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