Chapter 1: Philosophical Foundations of Human Rights

Introduction

“Human rights and fundamental freedoms are the birthright of all human beings; their protection and promotion is the first responsibility of Governments” (Vienna Declaration and Programme of Action 1993).

The Vienna Declaration adopted by the World Conference on Human Rights reasserts and emphasises that “(a)ll human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis” (Article 5).

Human rights have roots deep in the mists of time.Yet, the term in the modern sense can be traced to the aftermath of World War II and the foundation of the United Nations, Since 1945, the term of human rights has witnessed an unprecedented expansion in the internationally recognized rights of all people. The scope of human rights has been elaborated and permeated the fabric of international society. Although there are divergent views as to the origins of human rights, there are two principal origins of theories on human rights: “the liberty-based theory prevalent in common law jurisdiction and the rights-based theory of civil legal system. Both address the relationship between the individual and the State, attempting to regulate interference by the State in an individual’s private life. In essence, the liberty theories demand that the individual is free from arbitrary State interference while the rights theories are based on the inherent rights of peoples, which the State must respect” (Smith, 2007, 6).

Problems Related to the Foundation of Human Rights

Since “human rights” means different things in different historical and cultural contexts, and advocacy of such rights has frequently been challenged as subjective, it leads to search for a thoroughgoing objective criterion for human rights. In the eighteenth and nineteenth century, some European philosophers focused on the idea of “human rights” or “rights of man” as a body of rights which should be based upon a concept of human being. They developed a corpus of human rights to be afforded to mankind, and human rights found its legal expressions in the different legal, national documents.

Historical Background of Human Rights

“Early legal developments in the area of human rights are said to have emerged from the Magna Carta of 1215, a contract between the English King and Barons who were dissatisfied with the taxes being levied by the monarch. The rights contained in the Magna Carta were not human rights, but rather political settlement. Human rights belong to all human beings and therefore cannot be restricted to a select group of privileged men. From a contemporary perspective, the Magna Carta turns out to be a rather unfortunate example of a human rights declaration” (Clapham, 2007, 6). The English Bill of Rights of 1689 is similarly considered a step for today’s texts like Magna Carta. They were political settlements. At the same time, the works of a number of philosophers like J. Locke, J. J. Rousseau, T. Paine and following the German philosophers I. Kant had focused on the ‘natural rights’ or the ‘rights of man’, ‘liberties’ –‘civil liberty’ or ‘natural liberty’, ‘moral principles’ and ‘human dignity’ etc. The modern concept of human rights is traced to the ideas and texts adopted at the end of the 18th century. In the year 1776, American Declaration of Independence stated that all men are created equal and have certain unalienable rights. The United States and France adopted statements on rights. The French Declaration of the Rights of Man (1789) and the United States Declaration of Independence (1776) and Bill of Rights articulate various rights to be enjoyed by all citizens including liberty and equality. The American Bill of Rights refers to freedom of religion, person and property. The French Declaration begins by stating that ‘Man are born and remain free and equal in rights’. The concept of liberty is defined in Article 4 of this Declaration and the other articles related to the rule of law including the fair trial processes (Article 6-10). French Declaration has served as a guide for constitutions of other European and former colonial countries as well as the European Convention on Human Rights itself. However, in the first decade of the twenty-first century, the international human rights system is in a state of crisis.

In 20th Century, We confront with the concept of “universality” in the international legal human rights documents. In December 1948, the international community adopted, by consensus, the Universal Declaration of Human Rights. This declaration has still been the preeminent document in the growing corpus of human rights instruments. Although some of the nonwestern states claim that the principles enshrined in the Declaration preserves the Western values and their own citizens, this Declaration intends to preserve the people all over the world. It contains ethical norms for all in the third world countries despite their cultural and social differences. Any definition of human rights may consider regional social and cultural differences, but it does not mean that human rights are relative, and they change from region to region or from society to society. The human rights possessed by every human being simply and only for being a member of humanity leads to the idea that all humans are equal in dignity and rights, because to possess rights has been reduced to only being a member of the human kind. Human rights which are related to each human being appear as demands to recognize and observe the value of man. Their aim is to protect each person for the simple fact that he/she is a human being.

Problems Related to Concepts of Human Right and Human Nature

Although the concept of human rights is considered unclear or indefinite by many scholars, this idea can be clarified adequately and justified objectively. The problems of ambiguity, subjectivity and indefiniteness which consist of main problems related to the human rights result from taking these concepts of international human rights instruments for granted. The idea of “human rights” which consists of “human” and “rights” presupposes a concept of human being (or human nature). These two concepts “human” and “right” invites us to concentrate on the concept of “human being” or “human nature”. At the same time, they invite us to think about some questions like “What is a human being?” “What does human nature mean?” “What is the meaning of ‘human nature’?” “Is there one human nature?” “Is it possible to separate human nature as primary and secondary one, the one is owned naturally from birth and the other one is acquired by actions?”

The question of whether there is a human nature cannot be discussed unless we are agreed on what the concept of human nature or human being mean. To clarify what human being is provides us the meaning of the term “human nature” which consists of both the conceptions of “human” and “nature”. Therefore, we have to think about two important questions: “What is a human being?” and “What is the meaning of ‘human nature’?” Human rights as an idea and a conception of human mind grounds on an account of human being who should have the needed conditions to actualize his/her potentialities and everyone should be treated so that each will have the conditions to realize his or her possibilities.

The Ethical Foundation of Human Rights

The idea of human rights is justified by means of human dignity or the value of man. Every human person is regarded as a valuable or dignified person, because of having these potentialities in his/her nature. So, the idea of human rights can be justified by means of understanding human dignity or the value of man. The concept of human dignity indicates the ethical dimension of human rights.

Concept of Human Rights

Today, for many people the concept of human rights is obvious, self-evident and definite. They do not experience any challenge regarding the definition, source or even the theoretical foundations of human rights. The foundations of the rights regime seem to us solid that the act of invoking rights in itself seems to make you right (Clapham, 2007, 17). On the other hand, some claim that the concept of human rights suffers from indefiniteness, and needs to be clarified and defined urgently. If not, it may become dangerous (Kuçuradi, 2013, 5), in the sense that, everyone uses the same term but with different meanings and it raises various problems in theory and practice of human rights.

This induces theoretical or philosophical problems regarding the definition and criterion of human rights, and some practical problems regarding the realization of human rights. Therefore, the clarification of the concept of human rights has been one of the main theoretical issues for philosophers for a long time. To have a clear concept of human rights has been considered a key for responding the question which rights should be included in human rights and which are not. This critique is named generally as the problem of criterion for human rights.

Some scholars rely on the international human rights documents in deciding which rights are human rights. According to Orend (2002) “A human rights, then, is a general moral right that every human being has: sometimes it finds legal expression and protection, sometimes not. The legal variability does not undermine the existence and firmness of moral right, and actually provides focus for contemporary human rights activism.”

Human rights are the moral rights of every human person regardless of his/her nationality, race, religion and gender, and irrespective of their codification. These rights express some necessities related to each human being. Everyone has basic and inalienable rights due to his/her biological nature. Human rights are the moral rights of every human being because of his/her being a member of the human species. “Human rights are understood as a kind of universal moral rights that belong equally to all human beings simply by virtue of the fact that they are human. What makes a person the holder of these rights is that he/she is a human being… As stated in the Universal Declaration of Human Rights, ‘all members of the human family’ hold human rights” (Tepe, 2014, 60).

Even though this core of the idea of human rights has been generally preserved in the human rights discourse, the concept of human rights has meant different things to different people. “For some, invoking human rights is a heartfelt, morally justified demand to rectify all sorts of injustice; for others, it is no more than a slogan to be treated with suspicion, or even hostility. Lawyers sometimes consider that human rights represent almost a term of art, referring to the details of accepted national and international human rights law (…) To some, it means ensuring that everyone is treated with respect for their inherent dignity and human worth. To others, it means that judges, the police, and immigration officials are required to protect the interests of terrorists, criminals, and other undesirable elements at the expense of the security of the population” (Clapham, 2007, 2).

On the other hand, a new concept of human rights that rests on an account of human being is introduced by I. Kuçuradi. As an idea of the human mind, “human rights express some necessities, related to each human being. These necessities appear as demands to recognize and observe the value of the human being, i.e., they appear as demands to protect individuals for the sole reason that they are human beings” (Kuçuradi, 2013a, 5). Kuçuradi answers the question why human beings need a special protection by pointing out the value of human being which is the result of having some properties and potentialities different from other livings or creatures. Kuçuradi’s concept of human rights is grounded on the idea that the human being is a valuable or dignified being because of having these potentialities in him/his nature. “By the term of ‘the value of the human being’” Kuçuradi points out the special place of this being among other living beings (Kuçuradi, 2013a, 5).

Concept of Human Nature

The concept of human nature has different meanings. Sometimes it denotes the certain basic properties that all human beings come to share in common, and stress the diversities and differences from other species. Sometimes human nature refers to certain properties or capabilities that are shared by all human beings including capacities, desires, dispositions or tendencies to act in specific ways. The concept of human nature generally implies that all human beings share certain properties in common as their species heritage.

The question of human nature refers to various aspects of human beings. It refers sometimes to “those characteristics and capabilities which only the human being possesses and which therefore distinguish him as a specific creature … [It] includes above all human beings’ capacity for reason and speech and capacities for intentional action, responsibility, etc., which arise from it. It is precisely because the capabilities … , as a whole, those which define the human being as a specific creature, that they have frequently been identified with ‘human nature’ in the history of philosophy. … We are talking here about another new concept of ‘human nature’, and so as not to fall into total conceptual confusion, we should speak here of ‘human essence’ rather than ‘human nature’ ” (Bayertz, 2003, 137-138). But sometimes it refers to human needs which constitute the basis of human rights, sometimes to some potentialities or capacities besides some basic properties (Tepe, 2014, 65-66).

Concept of Human Dignity

Katleb introduces an account of human dignity which seems to portray the general use of the term of human dignity. “The core idea of human dignity is that on earth, humanity is the greatest type of beings—or what we call species because we have learned to see humanity as one species in the animal kingdom, which is made up of many other species along with our own— and that every member deserves to be treated in a manner consonant with the high worth of the species” (Katleb, 2011, 3-4). He indicates Picodella Mirandola’s speech On the Dignity of Man (1486) as the first writing in which the core idea is found early, but then there have been a number of revisions and elaborations. The doubt is sometimes expressed when human dignity is introduced into later discussions of rights, even when human rights are accepted as defensible and conducive to human interests (Katleb, 2011, 4).

On the other hand, another concept of human dignity has been presented by I. Kuçuradi as an ethical basis for her concept of human rights. Kuçuradi sees human rights as an idea or a conception of the human mind, the conception that human beings should be treated in a special way that makes it possible for every human being to actualize such potentialities of the human being. The idea of human rights is justified by means of human dignity or the value of man through which all human beings are declared to be equal. Every human being is considered as a valuable or dignified one because of having some potentialities in him/his nature. By the term of ‘the value of the human being’ she indicates the special place of this being occupies among other living beings. What provides this special place to him/her is the entirety of his characteristics, his potentialities which distinguishes him from other living beings. They are the activities special to human being and some products of these activities. Kuçuradi calls these as properties human being possesses in addition to those which he has in common with other living beings. And those properties or potentialities constitute the value of human being or his dignity (Kuçuradi, 2013a, 5).

Cultural Relativism and Universality of Human Rights

Universality of human rights has been a contentious issue from the birth of human rights. The universality claims for some principles or norms faced with some reactions which deny the possibility of any universal norms or principles on the ground of cultural diversity. After the announcement of the Universal Declaration of Human Rights, the universality claim of human rights has been one of the most referred issues in the human rights discourse. The question of whether human rights are universal is considered as a question related to the possibility of human rights. If there is any universal norm, then we can speak of universal human rights as ethical principles or norms.

“Human rights as an international political project are closely tied to claims of universality. … The 1993 World Human Rights Conference, in the first operative paragraph of the Vienna Declaration and Programme of Action, asserted that ‘the universal nature of these rights and freedoms is beyond question’. Attacks on the universality of human rights, however, are also widespread. And some versions of universalism are indeed theoretically indefensible, politically pernicious, or both” (Donnelly, 2007: 281). Donnelly speaks of different senses of the term “universal” in human rights; besides anthropological and ontological universality, he mentions from functional, international legal and overlapping consensus universality. The sense of universality that he considers philosophically and politically indefensible is the anthropological and ontological universality. He emphasizes that universal human rights, if they are understood in the first sense as functional, international legal and overlapping consensus universality, will leave considerable space for cultural particularity and other forms of diversity and relativity.

Some scholars of human rights are very skeptical to the idea of universality departing from cultural relativist point of view. Dembour asserts confidently that human rights are not universal. “In my view, the concept of human rights conspicuously lacks ‘universal universality’ – at the very least their supposed universality does not exist across times and places. There is thus perhaps a sense in which the conclusion to the second question asked in this book is foregone: human rights are not universal, the concept is flawed, we should not believe in it, and that is the end of the matter” (Dembour, 2007, 3). And the problem of universality of human rights is not new as she indicates the deficit noted by Marxists. “The problem of a universal deficit is also noted by Marxists and feminists, though from a different angle. For Marxists, human rights lack universality because they primarily benefit the bourgeois; for feminists, because women are excluded from their definition and implementation. Interestingly the feminist critiques advocate solutions which fall either within or outside liberal parameters” (Dembour, 2006, 6).

The challenge of cultural relativism should also be mentioned. The cultural relativist arguments are against the existence of any universal values and ethical norms, and they identify human rights as merely and inherently Western (Kao 2011: 11). “The historic development of the concept of human rights is often associated with the evolution of Western philosophical and political principles, yet a different perspective could find reference to similar principles concerning mass education, selffulfilment, respect for others, and the quest to contribute to others’ well-being in Confucian, Hindu, or Buddhist traditions. Religious texts such as the Bible and the Koran can be read as creating not only duties but also rights. Recognition of the need to protect human freedom and human dignity is alluded to in some of the earliest codes, from Hammurabi’s Code in ancient Babylon (around 1780 BCE), right through to the natural law traditions of the West, which built on the Greek Stoics and the Roman law notions of jus gentium (law for all peoples). Common to each of these codes is recognition of certain universally valid principles and standards of behavior. These behavioural standards arguably inspire human rights thinking, and may be seen as precursors to, or different expressions of, the idea of human rights - but the lineage is not as obvious as is sometimes suggested” (Clapham, 2007, 16).

The first serious charge to universal validity of human rights comes from the “cultural relativism” as a variant of ethical relativism. The cultural relativism denies the possibility of truth and validity of moral norms relativizing all moral judgements about social behaviour to each culture’s prevailing belief about them (Kao, 2011, 11).