Chapter 8: Theoretical and Practical Objections to Human Rights

Introduction

The idea of human rights, as a kind of universal moral rights that belong equally to all human beings only in virtue of being human, has been one of the prominent ideas in the second half of the 20th Century. Universal Declaration of Human Rights (UDHR) adopted by the United Nations General Assembly in 1948 have constituted a milestone in the history of human rights and followed by many declarations and covenants drafted and adopted by the UN, two of them used to be called as twin covenants International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social, and Cultural Rights (ICESCR) with UDHR have determined the international and national human rights practice more than others. Considered as “one of the great civilizing achievements of the modern are” (Gearty, 2006, 1), today the idea of human rights plays a central role both in international law and in the domestic law of nation states. “In the developing world, ratifying international human rights covenants has become a condition of entry for new states joining the family of nations. Even oppressive states feel obliged to engage in rhetorical deference toward human rights instruments” (Ignatieff, 2003, 6-7). In addition, human rights are considered to be an ideal standard every human community should try to reach. If the level of a political democracy falls under this threshold or human rights of all people equally cannot be secured, this country or state may be condemned being uncivil or oppressive. In other words, a state that secures to all of its citizens a life which does not fall this threshold is regarded to be a modern political democracy or a modern state.

The Challenges to the Idea of Human Rights

Conceptual objections are mostly directed either to the vagueness and abstractness of the concept of human rights, and of human nature on which the idea of human rights supposed to be to rest, and of the claim of universality. Dembour tries to summarize these in the following three propositions which represents the main line of the conceptual critiques, “(1) the concept of human rights is wrongly presented as universal; (2) it pertains of a logic which focuses on the individual to the neglect of solidarity and other social values; (3) it derives from a reasoning which is far too abstract” (Dembour, 2006, 6).

Raising an objection to the assumption that “human rights represents a step forward in the progress of human development … and human rights are universal” Kapur challenges the atomized and insular liberal subject on which the human rights project is based (Kapur, 2006, 667).

Though the objections of Dembour and Kapur portrait the conjuncture well, but do not cover all the critiques of human rights. “A different but complementary argument is developed by Alasdair Macintyre in After Virtue, when discussing the idea of human rights. According to him, not only are there no human rights, the notion of a right itself is not found in every society. After pointing out that claims to the possession of rights presuppose the existence of a set of socially established rules, he goes on, ‘Such sets of rules only come into existence at particular historical periods and in particular social circumstances. They are in no way universal features of the human condition’” (Milne, 1993, 4) . Consequently, he comes to the idea that “‘It would of course be a little odd that there should be such rights attaching to human beings simply qua human beings ... .’Referring to the same linguistic facts, he then comments, ‘From this of course it does not follow that there are no natural or human rights, it only follows that no one could have known that there were ... .’ He concludes that there are no such rights’, adding that ‘Every attempt to give good reasons for believing that there are such rights has failed.’ His verdict is that ‘Natural or human rights are fictions’, and that ‘belief in them is at one with belief in witches and unicorns’” (Milne, 1993, 5; MacIntyre, 1981, 67).

Theoretical Objections to the Idea of Human Rights

According to Burke, rights discourse of his century suffers from metaphysical idealism and rationalism. The proponents of rights follow a clumsy metaphysical theory; they are metaphysical rationalists or “speculatists”, the worst insult in Burke’s rich vocabulary of abuse. For Burke, therefore, the standpoint of the absolute and universal discourse seems to blind the politicians to the realities of the particular and concrete and turns them into metaphysicians and prophets (Douzinas, 2000, 148-151).

Jeremy Bentham, regarded as a realist and utilitarian philosopher, put his reaction to the 1789 French Declaration with the phrase ‘From real law come real rights; but from imaginary laws … come imaginary rights.’ Bentham wrote an essay titled “Anarchical Fallacies,” in which he attacked the most popular manifesto of such rights in his day, the “Declaration of the Rights of Man and Citizen” . He claimed that any doctrine of natural rights is “simple nonsense, natural and imprescriptible rights, rhetorical nonsense,-nonsense upon stilts” (Bedeau, 2000, 263).

The first Marxist critique of human rights as a response to the French Declaration was given by Karl Marx in 1843, in his essay ‘On the Jewish Question’. Marx’s critique of human rights rests on the belief that the man of human rights is abstract. Rights idealise and support an inhuman social order, underpinned by the abstract man of the declarations and, they turn real people into abstract ciphers. The subject of human rights loses its concrete identity, with its class, gender and ethnic characteristics; all real human determinations are sacrificed on the altar of the abstract man lacking history and context. But at the same time, this abstract man stands in for a real person and his rights support someone replete of substance. The emancipation of the unreal man, subjects real people to a very concrete rule, “the rights of man as distinct from the rights of the citizen are nothing, but the rights of the member of bourgeois society, i.e. egoistic man, man separated from other man and the community” (Douzinas, 2000, 159).

Waldron tackles three old critiques of human rights from Conservative, Liberal and Marxist point of view, i.e. the views of Jeremy Bentham, Edmund Burke and Karl Marx and indicates both the diversity and common points of these three critiques in his work ‘Nonsense Upon Stilts’ Bentham, Burke and Marx on the Rights of Man. In spite of their diversity they all attack the idea of human rights for what they call ‘abstraction’, they all three critiques focus on the issue of individuality versus community, and they all claim that the rights of man involve a radically impoverished view of the constitution of human society (Waldron, 1987, 3).

Critiques of the Concept of Human Rights

“Human rights are used as a symbol or synonym for liberalism, capitalism or individualism by some and for development, social justice and/or peace by others. In the South, rights are seen as primarily collective rather than individual, social and economic rather than civil, associated with equality rather than with liberty. In the North, they can reflect commitments to solidarity and social justice as well as to political freedom–but they have also been used to underpin invasion and military brutality” (Douzinas and Gearty, 2014, 1). We may oppose Douzinas, thinking that human rights are not so different and controversial in the South and North, but if you look into the phrases of people in which the word human rights take part, we will see these different and controversial uses of the word.

Furthermore, the concept of rights and its difference from human rights have never been clear. That what makes human rights distinct and special has not been tackled adequately supposing merely human rights a subclass of moral rights. Human rights that we have simply in virtue of being human have to be distinguished from rights that derive from some accomplishment or transaction of the right holder, a special relationship to which they belong, or their involvement in some particular social or institutional order. That the existence and content of human rights —including, specifically, what the salient understanding of “humanity” is in virtue of which we possess them— is to be determined primarily through ordinary or “natural” moral reasoning (Tasioulas, 2010, 650). But with the “proliferation” of human rights any colourable universal human interest or value is becoming a candidate for the title of human rights. Moreover, this tendency is regarded a threat for human rights discourse rendering it redundant, because of having already a serviceable language for speaking interest or values (Tasioulas, 2010, 651).

Critiques of the Concept of Human Nature

If the adjective ‘human’ is taken seriously, the idea of human rights must be the idea that there are certain rights which, whether or not they are recognised, belong to all human beings at all times and in all places (Milne, 1993, 1). Some theories of human rights argue that any concept of human rights has to rest upon a concept of human nature from which it is derived by different ways of reasoning. This ground for human rights has been named as human nature or human being. “Legal rights have the law as their source. Contracts create contractual rights. Human rights would appear to have humanity —“human nature”— as their source” (Donnelly, 2013, 13) . Donnelly suppose that “the source of human rights is man’s moral nature, which is only loosely linked to scientifically ascertainable needs and not adequately captured by the idea of human capabilities. The ‘human nature’ that grounds human rights is a prescriptive moral account of human possibility. (Needs and capabilities are typically understood as descriptive). The scientist’s human nature says that beyond this we cannot go. The moral nature that ground human rights says that beneath this we must not permit ourselves to fall” (Donnelly, 2013, 15).

Some others strictly go against to talk about human nature or human being taking a cultural relativist or postmodern point of view. Though the first article of the Universal Declaration of Human Rights includes a concept of human nature or human being, i.e. “endowed with reason and conscience” , the idea of human rights have been severely criticized because of resting upon a concept of human being that is supposed to be a metaphysical and abstract concept. “All of the critiques are, finally, dissatisfied with the fact that the concept of human rights derives from an excessively abstract definition of man” (Dembour, 2006, 7). The claim of abstractness of the notion of human beings leads some human rights scholars claiming to dispense with a concept of man totally.

“The first charge against the universal validity of human rights falls under the umbrella term ‘cultural relativism.’ As a variant of ethical relativism, cultural relativism denies the possibility of truth in ethics by relativizing all moral judgments about social behavior to each culture’s prevailing beliefs about them” (Kao, 2011, 11). Cultural relativists claim that every person lives in a specific culture and each culture possesses its own values and principles of conduct, therefore it would be nonsense to speak of universal values or principles and of human nature valid for all cultures. “In postmodernity, the idea of history as a single unified process which moves towards the aim of human liberation is no longer credible, and the discourse of rights has lost its earlier coherence and universalism. The widespread popular cynicism about the claims of governments and international organizations about human rights was shared by some of the greatest political and legal philosophers of the twentieth century. Nietzsche’s melancholic diagnosis that we have entered the twilight of reason, Adorno and Horkheimer’s despair in the Dialectics of the Enlightenment and Foucault’s statement that modern “man” was a mere drawing on the sands of the ocean of history about to be swept away, appear more realistic than Fukuyama’s triumphalism” (Douzinas, 2000, 6). Announcing the ‘death of man’ has caused the critiques to the concepts of human nature and of human being. To talk on human nature or human being has been condemned to be abstract and nonsense. And “the announcement of the “death of man” has been accompanied by the most protracted campaign to re-claim the individual, as the triumphant center of our postmodern world and to declare freedom, in the form of autonomy or self-determination, as the organizing ideal of our legal and political systems” (Douzinas, 2000, 17).

Critique of Humanism

The idea of human rights has sometimes been condemned to be a humanistic ideology that considers human being one and only valuable creature in the world. This account of value of human rests on a conception of man put forth by Immanuel Kant which considers man as a living creature belong to both the world of nature and of reason. And the capacity to act according to the law of morality that differentiates humans from other creatures, and constitutes also the ground of the value or dignity of man. This led Kant to state that only human being has value, meanwhile others than humans have only prices. Since human rights are principles or norms that aim to protect the value or dignity of man, the value of man constitutes the basis of human rights and also the main motive of the charge of humanism.

“In that period, the highly influential thought of Marx, Nietzsche and Freud and their followers, the great philosophers of ‘suspicion’ according to Paul Ricoeur, successfully challenged the assumptions of liberal humanism, ‘the philosophy of the progressive realisation of the whole man throughout history’ ... Humanism explores what is right according to human nature, in its natural dignity or scientific objectivity and turns ‘man’ into the end of historical evolution, the standard of right reason and the principle of political and social institutions. According to humanism, humanity has two unique characteristics, it can determine its own destiny and, secondly, it is fully conscious of itself transparent to itself through self-observation and reflection. Both premises were seriously undermined by the great critics of modernity” (Douzinas, 2000, 16). Those criticisms of modernity and its autonomous and free subject intend to collapse the idea of human rights accusing it to be racist idea putting value on human race and discriminating other living and non-living things of nature. In fact, “… the ‘anti-humanist’ philosophers did not discuss human rights at great length, with a few exceptions (Foucault). On the other hand, from Adorno to Arendt and from Lyotard to Levinas, they all commented on the way in which humanism can be turned into the inhuman, its dream of a rationally emancipated society transformed into the nightmare of totalitarian administration or bureaucratic technocracy. Foucault, Lyotard and Derrida became repeatedly involved with political and human rights campaigns” (Douzinas, 2000, 17). Though they were human rights activist in their daily life, they did not abstain from being critical to the idea of human rights.

Critique of Cultural Relativism

“There is another objection to equating human rights with liberal democratic and modern social-welfare rights. The particular values and institutions which these embody have their roots in the Western tradition of culture and civilisation. But the Western is only one of a number of such traditions. Others are the Islamic, the Hindu and the Buddhist, to name only three, each of which is based upon a great religion” (Milne, 1993, 3). Milne acknowledges this objection that casts doubt upon any idea of human right which presents it as a universal ideal standard, and he believes that such an ideal must be drawn from a particular tradition of culture and civilisation. And the people who do not belong to this culture will have no reason to accept it (Milne, 1993, 4). This objection is known as critique of cultural relativism. The cultural relativists deny the possibility of any universal value and ethical norm, and identify human rights as merely and inherently with western culture (Kao, 2011, 11). American Anthropological Association (AAS) made a statement against the Universal Declaration during the process of drafting, and warned the committee members about the possible negative consequences of a universal declaration. “The problem is thus to formulate a statement of human rights that will do more than just phrase respect for the individual as an individual. It must also take into full account the individual as a member of the social group of which he is a part, whose sanctioned modes of life shape his behavior, and with whose fate his own is thus inextricably bound. Because of the great numbers of societies that are in intimate contact in the modern world, and because of the diversity of their ways of life, the primary task confronting those who would draw up a Declaration on the Rights of Man is thus, in essence, to resolve the following problem, How can the proposed Declaration be applicable to all human beings, and not be a statement of rights conceived only in terms of the values prevalent in the countries of Western Europe and America?” (539).

Critiques of Individualism or Neglecting Community

Some other critiques of human rights target “the individualism inherent in human rights logic ” . While individualism is criticized by some realists, utilitarian thinkers, feminists and Marxists, liberal thinkers value individual and individual autonomy above anything else (Dembour, 2006, 7). Human rights are considered as a part of liberal ideology due to their being rights of an individual person, but not of a community or people. If only the Universal Declaration of Human Rights is taken into consideration, this may be approved; but the concept of human being is replaced by the concept people in the International Covenant on Civil and Political Rights, at least in its first article (“All peoples have the right of selfdetermination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”).

Human rights are the rights of a person or an individual, but not the rights of a community or a group of people due to its definition. What the human rights intend to protect is individuals, not a community or a group of people. The criticisms mentioned above might be right in a sense, because these critiques are grounded on the identification of an individual. To take the rights of an individual at the centre of a conceptualization will not mean to advocate the interests of an individual person. The individualism critique may be right, but only if we consider human rights individual aspirations without differentiating these aspirations from rights, and fundamental rights from social and economic rights. To protect a fundamental right of any person will not lead to harm fundamental rights of any other person. But to protect the interests of one person or group will most likely harm the interests of any other person or groups.

Practical Objections to Human Rights

The modern critics of human rights are more radical and harsh, but mostly directed to the failure of human rights movements and the gap between the idea of human rights and its practice more than the idea itself. In fact, there is not a clear-cut borderline between conceptual and practical critiques of human rights. One and the same problem might have been considered as theoretical in one theory of human rights, but practical in the other. The problems related to the practice of human rights may be an outcome of either the idea of human rights itself or of the conditions in which human rights are practiced. Believing these conditions being determinant for human rights some argue that human rights are a by-product of liberal democracy, and they can be realized only in a liberal democratic society. “Rights have no separate ontological status; they are a by-product of a particular kind of society, one in which the ‘state’ operates constitutionally under the rule of law, is separated from ‘civil society’ and the ‘family’, and in which private and public realms are, in principle, clearly demarcated. Societies in which human rights are respected are more civilised and secure than those in which they are not, but rights are a symptom of this civilisation and security, not a cause. To overemphasise rights in isolation from their social context is counterproductive, potentially undermining the very factors which create the context in which rights are respected” (Brown, 1997, 58). Having this assumption in his mind, Brown considers that promoting decontextualized human rights on the global scale is a near-impossible task. Though human rights are universals from liberal perspective, they are associated with a particular kind of society, and to promote these rights means promote liberal society. “Proponents of universal human rights are, in effect, proposing the de-legitimation of all kinds of political regimes except those that fall within the broad category of ‘liberal democracy’ .

Although such a de-legitimation might be regarded as desirable, it is by no means clear that a majority of societies worldwide are actually capable of becoming liberal societies, at least in the medium run, and it is equally unclear on what moral authority those who require them to take this step can rely” (Brown, 1997, 59). Brown adds that those who criticize universal human rights either look at the promotion of a minimal, ‘thin’ moral code advocated by Michael Walzer or to the admittedly nebulous, benefits of a sentimental education given by Richard Rorty. He believes that the idea of “thin” moral codes of M. Walzer may be used for supporting universal human rights, but R. Rorty’s argumentation for a sentimental education instead of human rights theory may not be considered a human rights friendly idea. According to R. Rorty, teaching human rights theory or making argumentative discourses in human rights issues was not meaningful. He believed that an education of human rights that addresses to the feelings of people might be more successful than an epistemological justification that tries to convince people to respect people rights of others.

When we talk about the practical problems of human rights, we mostly refer to the challenges that frustrate the realization of human rights in the world. These kinds of argumentations point out the gap between the theory of human rights in particular and its practice referring to the rise of the human rights movements, documentations and publications in our century.

An Evaluation of the Objections

In spite of these reactions, almost all of them find human rights a useful tool in constructing a liberal democracy and securing rights, and in overriding some political problems we face today. Dembour considers human rights to be a vehicle of useful values in our contemporary world. Even though it does not appear to her tenable to ‘believe’ in human rights, she expresses her readiness to act as if she believed in them in a world where they have become part of the received wisdom since she almost believes in them, having been socialized in them and being persuaded by some of the values they seek to express. In short, she considers human rights as a potentially useful resource in her World (Dembour, 2006, 2). In fact, the language of rights has facilitated the establishment of some of the freest, safest and most civilised societies known to history in the countries in which human rights has been an essential part of the political and daily life.

“Human rights today remain the only proven effective means to assure human dignity in societies dominated by markets and states” (Donnelly, 2013, 97). But it would not mean that human rights can safeguard the rights of all people in the world. We should keep in mind that it is only a tool to protect the rights of people, and it becomes successful only by means of other political, economic and social conditions. That brings Ignatieff to offer to stop thinking of human rights as trumps and begin thinking of them as a language that creates the basis for deliberation.

He thinks that in this argument, the ground we share may actually be quite limited. “At best, rights create a common framework, a common set of reference points that can assist parties in conflict to deliberate together. Common language, however, does not necessarily facilitate agreement” (Ignatieff, 2003, 20).

To expect from an idea more than this would not be realistic. Ideas like a lighthouse indicate us the right way to construct a better world, but not more than it. To build a right based society we need more than ideas, we have to create the political and economic conditions in which human rights may flourish. To extract human rights from the liberal political conditions in which it has emerged and it needs to be realized, and to claim to universality of it has been the target of some critics claiming that the contemporary human rights regime is in general, and, for the most part, in detail, simply a contemporary, internationalised and universalised, version of the liberal position on rights (Brown, 2012, 55).

“The notion of “the rights of man,” like revolution itself, opened up an unpredictable space for discussion, conflict, and change. The promise of those rights can be denied, suppressed, or just remain unfulfilled, but it does not die” (Hunt, 2007, 175)