Making Sense of Human Rights Revised Edition 11 September 2004 all rights reserved

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Are Human Rights Inalienable?

We say that human rights are universal to avoid leaving the oppressed noncitizen, minority group member, or social outcast without rights to stand on. We claim that human rights are inalienable so that oppressive governments cannot say their subjects have forfeited or voluntarily given up their rights. Further, the idea that human rights are inalienable fits nicely with the idea that governments are not the ultimate source of human rights. What governments do not give they also cannot take away.

Inalienability means that a right cannot be permanently forfeited or given up entirely. The inalienability of a right implies that the rightholder's attempts to repudiate permanently that right, or attempts by others to take that right away, will be without moral effect. If people and government agencies lack the moral power to eliminate permanently a right of their own or others, that disability makes the right inalienable. And since the right cannot be eliminated, those who act as if it had been eliminated may violate it.

One problem with the claim that human rights are inalienable is that some of the rights in the UDHR are forfeitable in many legal systems upon conviction of serious crimes. Most systems of criminal punishment use incarceration as a penalty, and thereby suppose that criminals forfeit at least temporarily their right to liberty. In spite of such examples, advocates of human rights often worry that the idea of forfeiture, if admitted, could consume too many rights. Admitting the possibility of forfeiture seems to invite oppressors to say that unpopular groups have forfeited their rights to life, liberty, or decent treatment. Nevertheless, this possibility is not sufficient to show that all human rights are immune to forfeiture. Most normative concepts are susceptible to rhetorical abuse.

The claim that human rights cannot voluntarily be repudiated wholesale is also problematic. Some eighteenth-century rights theorists asserted the inalienability of natural rights because they wanted to counter the Hobbesian claim that people had agreed to give up all their rights when they left the state of nature and entered civil society. And perhaps we can agree that some minimal right to liberty is inalienable and hence that individuals lack the power to donate or sell it.

I doubt, however, that we can plausibly say that all human rights are immune to repudiation. People give up many basic liberties when they enter monasteries or military service, yet we would not forbid these actions. Suppose that a public official repudiated his moral and legal rights to privacy, so that his life is an open book. This step might be foolish, but surely people can take it. A more realistic example is accepting permanent limits on what one can say and publish in order to receive a security clearance for government intelligence work. Although one does well to be suspicious of government secrecy regulations, agreements of this sort cannot be precluded wholesale. I suspect that only a few human rights are immune to permanent repudiation. As a general conclusion about the inalienability of specific human rights I suggest that they are hard to lose but that few if any are strictly inalienable (for a stronger view of inalienability see Donnelly 2003: 10).

Scope, Weight, and Trade-Offs

Human rights are both mandatory and high priority. As mandatory norms, they are not mere goals. Meeting their demands is obligatory, not merely a good thing. As high-priority norms, they generally prevail in competition with other considerations--including advancing utility, prosperity, national security, and good relations with other countries. To have high priority they must be supported by strong moral and practical reasons.

It is not plausible, however, to suggest that human rights are absolute, that they can never be suspended or sacrificed for other goods. As James Griffin says, "The best account of human rights will make them resistant to trade-offs, but not too resistant" (Griffin 2001b). At least some civil and political rights can be restricted by public and private property rights, by restraining orders related to domestic violence, and by legal punishments. Further, after a disaster such as a hurricane or earthquake, freedom of movement in the area is often appropriately suspended to keep out the curious, to permit free movement of emergency vehicles and equipment, and to prevent looting. The Civil and Political Covenant permits rights to be suspended during times "of public emergency which threatens the life of the nation" (Article 4). Yet it excludes some rights from suspension including the right to life, the prohibition of torture, the prohibition of slavery, the prohibition of ex post facto criminal laws, and freedom of thought and religion.

Human rights and their exercise are generally subject to regulation by law. For example, rights to freedom of speech, religious practice, assembly, movement, and political participation require substantial qualification and regulation so that they harmonize with each other and with other important considerations. A system of human rights must adjust the scopes and weights of its rights so that they can coexist with each other and form a coherent system (Rawls 1971, 1993). The right to privacy, for example, must be adjusted to coexist with the right to a fair trial. And the right to security against crimes has to be accommodated to rights to due process of law.

The scope of a right is the benefit, freedom, power, or immunity that it confers upon its holders. For example, specifying the scope of the right to freedom of religion involves describing a set of freedoms in the area of religious belief and practice that the holders of the right enjoy. Weight concerns the ranking or priority of a right when it conflicts with other considerations. To be exceptionless is a matter of scope, and to be absolute is a matter of weight. Nevertheless, it is often difficult to know whether the failure of a right to outweigh competing considerations and to dictate the result that should be followed, all things considered, in a particular case is best described as an instance of its containing an implicit qualification (scope) or as an instance of its being overridden (weight).

Suppose that Kim wants to exercise her right of free speech by marching into the courtroom in which Lee is on trial and telling the jury some fact that is barred from them by the rules of evidence (e.g., about Lee’s criminal record). Here Kim’s right to speak would conflict with Lee’s right to a fair trial. Suppose further that we agree that Kim should not be allowed to speak to the jury and that the relevant rights do not, all things considered, require that she be allowed to do this. There are two possible ways of describing the failure of Kim’s right to freedom of speech to prevail here. One approach says that the right to free speech, properly understood, does not include within its boundaries a right to enter a courtroom and tell the jury things about the defendant they are precluded from knowing. Here the matter is treated as one of scope. The other description says that Kim’s right of free speech applied in this situation and would normally have required that she be allowed to speak, but it was overridden in this unusual case by Lee’s right to a fair trial, which is of higher priority. Here the matter is treated as one of weight.

In this instance it is probably best to see the matter as one of scope. One might hope that all conflicts between norms could be dealt with as they arose by redrawing boundaries and inserting exceptions. Boundaries would eventually be adjusted to minimize or eliminate conflicts, and the relative priority of different norms would be reflected in the expansion or retraction of their boundaries when they covered contiguous areas.

All the same, at least three barriers stand in the way of this program. One is that we cannot anticipate all conflicts between rights and with other norms, and we are often uncertain about what we should do in the cases we can imagine. A second barrier is that a right containing sufficient qualifications and exceptions to avoid all possible conflicts would probably be too complex to be generally understood. Third, relieving a conflict by building in an exception will sometimes incorrectly imply that the overridden right did not really apply and that we need feel no regret about our treatment of the person whose right was overridden. The most awful moral dilemmas are conflicts not at the edges of rights or duties but at their very centers. Adding exceptions to cover such cases may lead us to see what is happening as non-tragic, rather than as calling for regret and – if possible – compensation. Retaining the vocabulary of weight and overriding may help us to remember that not all moral dilemmas can be anticipated or resolved in advance and that in hard cases even our best efforts may result in serious harm or unfairness (Ignatieff 2004).

When we describe human rights as prima facie rights because we cannot provide in advance adequate accounts of how to deal with conflicts between human rights and other important considerations, we render irrelevant the sorts of objections that could be made if we claimed that human rights are absolute or near absolute. Prima facie rights are far easier to defend, but their implications for practice are often unclear. If no substantial competing values are present, a prima facie right will tell us what to do. But substantial competing considerations are present, as they often are, prima facie rights are silent. The danger is that prima facie rights will provide no guidance in the cases where guidance is needed most.

Two responses can be made to this objection. First, there is no reason why the scopes of prima facie rights cannot be defined in considerable detail or principles for ranking them in relation to competing considerations worked out. Classifying a right as prima facie implies not that this sort of work cannot be done, but that we recognize that the work will always remain partially unfinished. Second, appeals to human rights should be seen as part of moral and political argument, not as the whole of it. The presence of claims about human rights does not mean that less specialized forms of moral and political argument cannot be invoked.

The Existence of Human Rights

Human rights are often held to exist independently of acceptance or enactment as law. The attraction of this position is that it permits critics of repressive regimes to appeal to human rights whether or not those regimes accept human rights or recognize them in their legal systems. Yet the contention that human rights exist independently of acceptance or enactment has always provoked skepticism. If human rights were mere wishes or aspirations, we could say that they exist in people's minds. In order to be norms that are binding on all people, however, human rights must be far more than wishes or aspirations.

One might try to sidestep skeptical doubts about the independent existence of human rights by pointing to their place in international law. For example, the right to leave a country is found in Article 12 of the Civil and Political Covenant, a treaty that is now part of international law. Under this treaty a person who wishes to leave her country (and who is not fleeing debts or criminal prosecution) has in this right a strong justification, and her government has a corresponding obligation to allow her to go. As this example suggests, human rights can exist as legal rights within international law.

When human rights are implemented in international law, we continue to speak of them as human rights; but when they are implemented in domestic law we tend to describe them as civil or constitutional rights. It is possible, however, for a right to be instantiated within more than one normative system at the same time. For example, a right to freedom from torture could be a right within a justified morality, a right within the domestic legal system, and a right within international law. This kind of congruence is an ideal of the human rights movement, which seeks broad conformity between various levels of law, existing moral codes, and the standards of enlightened moralities.

Because human rights are now enacted within many national and international legal systems, positivist worries about unenforced moral rights are no longer fatal to taking human rights seriously. As Louis Henkin observes, “Political forces have mooted the principal philosophical objections, bridging the chasm between natural and positive law by converting natural human rights into positive legal rights” (Henkin 1978). This view is much more plausible today than when Henkin wrote it because many more countries have committed themselves to human rights treaties and because mechanisms for protecting human rights at the international level have become more powerful and better accepted.
Still, it would be better for the general applicability and stability of human rights if their availability as standards of criticism were not dependent on enactment or acceptance. Many have followed this line of thought, and thus human rights are commonly characterized as moral rights. A right is a moral right if it exists as a norm within an actual or justified morality.

Accepted moral rights are rights that are recognized and mostly respected in actual human moralities today. These rights can exist before a formal legal system is established and may later become legal rights. Perhaps most actual moralities confer some rights on individuals, but it is not clear that accepted norms are adequate to support rights of international applicability. If human rights are to be generated by the various accepted moralities that exist around the world, these moralities must share a commitment to principles of the sort found in the UDHR. It is not clear that enough moral agreement exists worldwide to support anything like the full range of rights declared in contemporary manifestos (but see Chapter 11 below), and ordinary interpersonal moralities usually have little to say about matters such as fair trials and equality before the law.

A human rights advocate who asserts that human rights are binding on governments independently of acceptance and international law will probably construe human rights as existing within justified moralities rather than within all accepted moralities. A justified morality is one that is well-supported by appropriate reasons. John Stuart Mill, a nineteenth-century advocate of what we now call human rights, would have allowed that there is little agreement worldwide in accepted moralities about basic rights. But he would have claimed nonetheless that human rights exist within justified moralities – which in his view would all give a prominent place to the principle of utility.

Viewing justified moralities as the ultimate home of human rights requires strong epistemological and metaphysical and moral commitments. It requires believing that moral and political reasons of worldwide applicability exist and that most humans have the epistemological capacities required to recognize and apply them. It requires believing that the grounds of human rights are in some sense objective. I find these propositions believable, and think that plausible meta-ethical grounds can be found for them. But I do not attempt a defense of them here. I should say, however, that viewing the human moral capacity as competent, in principle, to permit the recognition of universal human rights does not warrant moral arrogance. Human moral capacities, like other cognitive and emotional capacities, are extremely fallible. Further, shared moral capacities need not yield uniform principles if circumstances in different societies are substantially different. The universality of norms must be defended by showing that problems and circumstances in different cultures are sufficiently similar as to permit broad underlying principles to yield similar specific principles.

The analysis of rights offered in Chapter 2 held that full-fledged rights are entitlements plus, which implies that for a justified moral right to exist, two things must obtain. First, there must be a justifiable entitlement to a freedom or benefit. Second, it must be possible to justify the duties or other burdens that require making this freedom or benefit available to all. A justified moral right, in this view, is an entitlement with holders, scope, weight, and addressees that is supported by strong moral reasons. At the level of theory, the identification of these elements may be fairly abstract, with many details left unspecified. Nonetheless, at least a vague conception of the content of these elements must be present for one to have a full-fledged right.

A justified morality does not need to be accepted or practiced by anyone, nor does it necessarily have a social or institutional dimension. Thus the question arises: are the principles and rights that constitute such a justified morality sufficiently robust and determinate to be binding in actual situations here and now? What the knowledge of human rights comes to in this view is – at a minimum – knowledge of strong reasons for adopting and following a certain set of norms. The Universal Declaration can accordingly be seen as an international attempt to specify the content of such a justified morality in the area of relations between people and their governments.

Legal positivists doubt that the principles of justified moralities are sufficiently knowable to be worth talking about or whether it is worthwhile, in our contemporary Babel with its many competing voices and views, to talk about principles everyone would be justified in adopting. They prefer the cold steel of legally implemented rights to the hot air of justified human rights. One who sees human rights as existing most fundamentally as justified moral rights may have the same preference but believe that, in those areas where we lack international agreement on norms that can be implemented everywhere through domestic and international, law we should continue discussing, and trying to identify, define, and promote justifiable norms. Human rights declarations and treaties are usefully seen as an attempt to formulate some fixed points in this discussion, to identify some rights that are widely accepted and strongly supported by good reasons. The belief that it is possible to formulate such a list rests on the belief that human beings have a substantial capacity for moral understanding and progress, but the need for such a list presupposes that the unaided consciences of government officials will not reliably provide fully adequate beliefs about how people ought to behave and how society ought to be organized.

How Human Rights Guide Behavior

Some of the ways in which human rights can guide behavior are obvious; in other areas the guidance they provide is complicated or problematic. In the obvious cases, full-fledged rights direct the behavior of their addressees through negative and positive duties. For example, a right to freedom from torture guides behavior by defining torture (see Levinson 2002-3), forbidding everyone to engage in it, and imposing a duty on governments to protect people against it. When torture occurs in a country, a formulation of the right against torture is likely to provide little guidance about (a) what actual and potential victims of torture may do to defend themselves; (b) how ordinary citizens should relate to those they suspect of being engaged in torture (e.g., do they have a duty to try to interrupt torture sessions, or a duty not to sell groceries to torturers?); (c) how citizens and officials should respond when the right to be free from torture is not legally recognized; and (d) how people and governments from other countries should respond to known cases of torture. Determinate answers to these questions cannot usually be found by appeal to human rights alone. Other moral and political principles must play an ongoing role. It is often necessary to look back to the abstract moral principles that underlie specific human rights, sideways to moral considerations other than rights, and forward to likely consequences. A list of human rights is only a partial guide to, and not a substitute for, moral and political deliberation.

Guidance from Rights That Are Not Accepted or Implemented

Even when a human right is not generally recognized or legally implemented in a country, it can guide the behavior of those who believe it is morally justified. Suppose that Fariz is an adherent of the Bahai faith – which is unpopular in some countries – and that she sincerely believes in the right to freedom of religion for herself and others. The validity of this norm is confirmed, she thinks, by its international recognition in the UDHR and human rights treaties. As a holder of this justified moral right, Fariz has the moral liberty to hold Bahai beliefs, to engage in Bahai religious practices, and to instruct her children in the Bahai faith. It is clear that Fariz’s recognition of these norms – whether or not they are socially or legally recognized – can guide her behavior. This right can also guide the behavior of its addressees. As one of these addressees, Fariz will have a moral duty not to interfere with the religious beliefs and practices of others. Fariz would do wrong to disrupt a religious meeting by Jehovah's Witnesses, and if she were a public official, she would do wrong to sponsor legislation to outlaw the Jehovah’s Witnesses from proselytizing or to force the children of its members to undergo instruction in the Bahai faith.

Rights can guide behavior not only by directing it with duties and other normative elements (the stronger and more usual case) but also by providing reasons or justification for it (the weaker case). For example, a violation of one’s right to freedom of religion, or the likelihood of such a violation, may provide a reason or justification for such actions as refusing to obey a law, engaging in public protest, or seeking to emigrate. Not all the guidance obtainable from a human right is found in its scope.

What to Do About Violations of Human Rights

Governments often have dual and conflicting roles in relation to human rights. On the one hand their sponsorship is needed to make many rights effective, and on the other hand they are often the most significant potential source of violations. The struggle to gain respect for a human right must often attempt both to get a government to restrain itself and to get it to use its legal powers to restrain others. Where human rights violations are deep and systematic, rights advocates must devise strategies for political change that are not in the scopes of human rights. Here respect for and implementation of human rights becomes a goal, and means-end or strategic reasoning must be used to pursue this goal.

Similarly, we generally cannot deduce from the content of a human right alone the best strategies for promoting and protecting that right at the international level. How large a role countries should play in promoting human rights abroad cannot be settled by appeal to human rights alone. Other relevant considerations include the means chosen (e.g., diplomacy, pressure, intervention), the likelihood of success, the weight assigned to the principle of nonintervention in the domestic affairs of other countries, and competing claims on national energy and resources. As before, these additional considerations do not seem to be part of the rights themselves but must rather come from general moral and political principles. Human rights do not provide complete guidance to political action – not even to political action directed at human rights violations.

Legal Guidance

The paradigm of legal implementation at the national level for a human right has two parts: (1) enactment in abstract terms in a constitution or bill of rights, and (2) enactment in more specific terms in statutes that become part of the day-to-day law of the realm. To protect freedom of religion, a constitutional norm might commit a country to religious freedom and tolerance, separation of church and state, and state neutrality between different religious groups. For example, Article 4 of the Constitution ("Basic Law") of Germany prescribes religious freedom in the following terms:

  1. Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable.

  2. The undisturbed practice of religion shall be guaranteed.

  3. No one may be compelled against his conscience to render military service involving the use of arms. Details shall be regulated by a federal law.

As section 3 of this article suggests, legislation will usually be needed to apply these general principles to specific national problems, which might include the institutional status of the dominant religious group, tax exemptions for religious organizations, the policy toward parochial schools and toward religious education in the public schools, and exemptions from military service for conscientious objectors. Legal enforcement of the standard sorts – with powers to complain and sue, court procedures to determine the facts and apply the law, punishments for violators, and remedies for victims – are more likely to be specified in legislation than in constitutional or human rights documents.

Persuasion and legislation are obviously not mutually exclusive. In fact, education of the population in sound moral and political principles is often one of the main goals of human rights legislation. Most compliance with human rights must be voluntary and based on acceptance.

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