James Nickel, “Human Rights,” excerpts | Samuel Moyn | August 01, 2016

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James Nickel, “Human Rights,” excerpts

(for full version see http://plato.stanford.edu/entries/rights-human/)

James Nickel, “Human Rights”
Stanford Encyclopedia of Philosophy 
for full version and bibliography, see http://plato.stanford.edu/entries/rights-human/


Human rights are norms that help to protect all people everywhere from severe political, legal, and social abuses. Examples of human rights are the right to freedom of religion, the right to a fair trial when charged with a crime, the right not to be tortured, and the right to engage in political activity. These rights exist in morality and in law at the national and international levels. Historical sources for bills of rights include the Magna Carta (1215), the English Bill of Rights (1689), the French Declaration of the Rights of Man and the Citizen (1789), and the Bill of Rights in the United States Constitution (1791). Early philosophical sources of the idea of human rights include Francisco Suarez (1548–1617), Hugo Grotius (1583–1645), Samuel Pufendorf (1632–1694), John Locke (1632–1704), and Immanuel Kant (1724–1804). The main sources of the contemporary conception of human rights are the Universal Declaration of Human Rights (United Nations, 1948b) and the many human rights documents and treaties that followed in international organizations such as the United Nations, the Council of Europe, the Organization of American States, and the African Union (on the early history of human rights see Tierney 2001 and Griffin 2008; for the history of the Universal Declaration see Glendon 2001, Lauren 1998, and Morsink 1999; and for the recent history of international human rights see Moyn 2010 and Jean Cohen 2012).

The philosophy of human rights addresses questions about the existence, content, nature, universality, justification, and legal status of human rights. The strong claims made on behalf of human rights (for example, that they are universal, or that they exist independently of legal enactment as justified moral norms) frequently provoke skeptical doubts and countering philosophical defences (on these critiques see Waldron 1988 and the entry on rights). Reflection on these doubts and the responses that can be made to them has become a sub-field of political and legal philosophy with a substantial literature.

1. The General Idea of Human Rights

This section attempts to explain the generic idea of human rights by identifying four defining features. The goal is to answer the question of what human rights are with a general description of the concept rather than a list of specific rights. Two people can have the same general idea of human rights even though they disagree about which rights belong on a list of such rights and even about whether universal moral rights exist. This four-part explanation attempts to cover all kinds of human rights including both moral and legal human rights and both old and new human rights (e.g., both Lockean natural rights and contemporary international human rights). The explanation anticipates, however, that particular kinds of human rights will have additional features. Starting with this generic concept does not commit us to treating all kinds of human rights in a single unified theory (see Buchanan 2013 for an argument that we should not attempt to theorize together universal moral rights and international legal human rights).

  • Human rights are rights Lest we miss the obvious, human rights are rights (see the entry on rights and Cruft 2012). Most if not all human rights are claim rights that impose duties or responsibilities on their addressees or dutybearers. Rights focus on a freedom, protection, status, or benefit for the rightholders (Beitz 2009). The duties associated with human rights often require actions involving respect, protection, facilitation, and provision. Rights are usually mandatory in the sense of imposing duties on their addressees, but some legal human rights seem to do little more than declare high-priority goals and assign responsibility for their progressive realization. One can argue, of course, that goal-like rights are not real rights, but it may be better to recognize that they comprise a weak but useful notion of a right (See Beitz 2009 for a defense of the view that not all human rights are rights in a strong sense. And see Feinberg 1973 for the idea of “manifesto rights”). A human rights norm might exist as (a) a shared norm of actual human moralities, (b) a justified moral norm supported by strong reasons, (c) a legal right at the national level (where it might be referred to as a “civil” or “constitutional” right), or (d) a legal right within international law. A human rights advocate might wish to see human rights exist in all four ways (See Section 2.1 How Can Human Rights Exist?).
  • Human rights are plural If someone accepted that there are human rights but held that there is only one of them, this might make sense if she meant that there is one abstract underlying right that generates a list of specific rights (See Dworkin 2011 for a view of this sort). But if this person meant that there is just one such specific right such as the right to peaceful assembly this would be a highly revisionary view. Human rights address a variety of specific problems such as guaranteeing fair trials, ending slavery, ensuring the availability of education, and preventing genocide. Some philosophers advocate very short lists of human rights but nevertheless accept plurality (see Joshua Cohen 2004 and Ignatief 2004).
  • Human rights are universal All living humans—or perhaps all living persons—have human rights. One does not have to be a particular kind of person or a member of some specific nation or religion to have human rights. Included in the idea of universality is some conception of independent existence. People have human rights independently of whether they are found in the practices, morality, or law of their country or culture. This idea of universality needs several qualifications, however. First, some rights, such as the right to vote, are held only by adult citizens or residents and apply only to voting in one's own country. Second, the human right to freedom of movement may be taken away temporarily from a person who is convicted of committing a serious crime. And third, some human rights treaties focus on the rights of vulnerable groups such as minorities, women, indigenous peoples, and children.
  • Human rights have high-priority. Maurice Cranston held that human rights are matters of “paramount importance” and their violation “a grave affront to justice” (Cranston 1967). If human rights did not have high priority they would not have the ability to compete with other powerful considerations such as national stability and security, individual and national self-determination, and national and global prosperity. High priority does not mean, however, that human rights are absolute. As James Griffin says, human rights should be understood as “resistant to trade-offs, but not too resistant” (Griffin 2008). Further, there seems to be priority variation within human rights. For example, when the right to life conflicts with the right to privacy, the latter will generally be outweighed.…

2. The Existence and Grounds of Human Rights

2.1 How Can Human Rights Exist?

The most obvious way in which human rights exist is as norms of national and international law created by enactment and judicial decisions. At the international level, human rights norms exist because of treaties that have turned them into international law. For example, the human right not to be held in slavery or servitude in Article 4 of the European Convention and in Article 8 of the International Covenant on Civil and Political Rights exists because these treaties establish it. At the national level, human rights norms exist because they have through legislative enactment, judicial decision, or custom become part of a country's law. For example, the right against slavery exists in the United States because the 13th Amendment to the U.S. Constitution prohibits slavery and servitude. When rights are embedded in international law we speak of them as human rights; but when they are enacted in national law we more frequently describe them as civil or constitutional rights.

Enactment in national and international law is one of the ways in which human rights exist. But many have suggested that this is not the only way. If human rights exist only because of enactment, their availability is contingent on domestic and international political developments. Many people have looked for a way to support the idea that human rights have roots that are deeper and less subject to human decisions than legal enactment. One version of this idea is that people are born with rights, that human rights are somehow innate or inherent in human beings (see Morsink 2009). One way that a normative status could be inherent in humans is by being God-given. The U.S. Declaration of Independence (1776) claims that people are “endowed by their Creator” with natural rights to life, liberty, and the pursuit of happiness. On this view, God, the supreme lawmaker, enacted some basic human rights.

Rights plausibly attributed to divine decree must be very general and abstract (life, liberty, etc.) so that they can apply to thousands of years of human history, not just to recent centuries. But contemporary human rights are specific and many of them presuppose contemporary institutions (e.g., the right to a fair trial and the right to education). Even if people are born with God-given natural rights, we need to explain how to get from those general and abstract rights to the specific rights found in contemporary declarations and treaties.

Attributing human rights to God's commands may give them a secure status at the metaphysical level, but in a very diverse world it does not make them practically secure. Billions of people do not believe in the God of Christianity, Islam, and Judaism. If people do not believe in God, or in the sort of god that prescribes rights, then if you want to base human rights on theological beliefs you must persuade these people of a rights-supporting theological view. This is likely to be even harder than persuading them of human rights. Legal enactment at the national and international levels provides a far more secure status for practical purposes.

Human rights could also exist independently of legal enactment by being part of actual human moralities. All human groups seem to have moralities: imperative norms of behavior backed by reasons and values. These moralities contain specific norms (for example, a prohibition of the intentional murder of an innocent person) and specific values (for example, valuing human life.) One way in which human rights could exist apart from divine or human enactment is as norms accepted in all or almost all actual human moralities. If almost all human groups have moralities containing norms prohibiting murder, these norms could constitute the human right to life. Human rights can be seen as basic moral norms shared by all or almost all accepted human moralities.

This view is attractive but has serious difficulties. Although worldwide acceptance of human rights has been increasing rapidly in recent decades…, worldwide moral unanimity about human rights does not exist. Human rights declarations and treaties are intended to change existing norms, not just describe the existing moral consensus….

2.2 Human Agency as the Basis of Human Rights

A justification for human rights—whether teleological, consequentialist, deontological, or something else—should justify the main features of human rights including their mandatory character, their universality, and their high priority. This makes the construction of a good justification a daunting task.

Grounding human rights in human agency and autonomy has had strong advocates in recent decades. … In the current dispute between “moral” (or “orthodox”) and “political” conceptions of human rights, Griffin strongly sides with those who see human rights as fundamentally moral rights (on this debate see Gilabert 2011 and Liao and Etinson 2012). Their defining role, in Griffin's view, is protecting people's ability to form and pursue conceptions of a worthwhile life—a capacity that Griffin variously refers to as “autonomy,” “normative agency,” and “personhood.” This ability to form, revise, and pursue conceptions of a worthwhile life is taken to be of paramount value, the exclusive source of human dignity, and thereby the basis of human rights (Griffin 2008: 27–44). Griffin holds that people value this capacity “especially highly, often more highly than even our happiness.”…

2.3 Political Conceptions of Human Rights

A political conception of human rights offers an account of what human rights are—or at least of what contemporary human rights are at the national and international levels. …

John Rawls introduced the idea of a political conception of human rights in his book, The Law of Peoples (Rawls 1999). The basic idea is that we can understand what human rights are and what their justification requires by identifying the main roles they play in some political sphere. In The Law of Peoples this sphere is international relations (and, secondarily, national politics). Rawls was attempting a normative reconstruction of international law and politics within today's international system, and this helps explain Rawls's focus on how human rights function within this system. Human rights within interpersonal relations are not part of this sphere.

Rawls says that human rights are a special class of urgent rights. He seems to accept the definition of human rights given in Section 1 above. Besides saying that human rights are rights that are high priority or “urgent,” Rawls also accepts that they are plural and universal. But Rawls was working on a narrower project than … Griffin. The international human rights he was concerned with are also defined by their roles in helping define in various ways the normative structure of the global system. They provide content to other normative concepts such as legitimacy, sovereignty, permissible intervention, and membership in good standing in the international community. …

Rawls advocated a modest list of human rights, one that leaves out many fundamental freedoms, rights of political participation, and equality rights. He did this for two reasons. One is that he wanted a list that is not parochial to the liberal democracies and that countries around the world would find attractive. The second reason is that he viewed serious violations of human rights as triggers of the permissibility of various kinds of intervention by other countries, and only the most important rights can play this role. …

[Rawls’s follower, Charles] Beitz says that human rights are “matters of international concern” and that they are “potential triggers of transnational protective and remedial action.” Beitz does not agree with Rawls's view that these roles require an abbreviated list of human rights. He accepts that the requirements of human rights are weaker than the requirements of social justice at the national level, but denies that human rights are minimal or highly modest in other respects. …

The broad justification for human rights and their normativity that Beitz offers is that they protect “urgent individual interests against predictable dangers (”standard threats“) to which they are vulnerable under typical circumstances of life in a modern world order composed of states.”

3. Which Rights are Human Rights?

This section discusses the question of which rights belong on lists of human rights. Not every question of social justice or wise governance is a human rights issue. For example, a country could have too much income inequality or inadequate provision for higher education without violating any human rights. Deciding which norms should be counted as human rights is a matter of considerable difficulty. …

 

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August 01, 2016

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Samuel Moyn

Harvard Law School

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