Another way of phrasing the question in the title of this post: how do human rights exist? They can exist in many forms:
- They can be part of the law. For instance, they can be included in a country’s constitution, in the international treaties a country has accepted, in customary law etc.
- Human rights can also exist as part of a moral tradition of a certain culture, nation or civilization. They are then shared norms of actual human moralities.
- They can exist as part of a religion, or better as part of a religion’s teachings, scriptures etc. (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights…”).
- They can exist as part of a justified morality (as opposed to an actual human morality). E.g. some human rights are part of John Rawls‘ theory of justice. A justified morality is not the existing morality of a group; it’s a moral theory that justifies moral norms such as human rights by way of argued reasons.
- They can be facts of life: rather than merely moral, legal or religious norms (justified or not), they are part of everyday behavior. Rather than aspirations or goals they are real capabilities. If that’s the case, then people don’t just have a legal right to free speech, or a right to free speech granted to them by their cultural or religious norms. And they don’t just have this right because a justified moral theory gives it to them. They have free speech, period.
Depending on where you live, human rights – or certain human rights some of the time – can exist in all 5 forms or in just one. Human rights exist everywhere in form 1: the Universal Declaration has become part of international customary law and is therefore binding on all countries in the world, even the few that haven’t accepted any human rights treaties and that haven’t incorporated human rights in their constitutions. Hence, human rights are part of the law everywhere.
Of course, that doesn’t have to be of much use. Several countries don’t care about the enforcement of this part of the law, or of any part for that matter. Or they are unable to enforce the law because they don’t have the resources, the institutions or popular support for rights. Perhaps the reason why the law is not enforced is the unwillingness of their dictatorial governments. Perhaps the reason is the absence of rights in form 2 and/or 3.
Rights in form 1 are important, however, and it’s preferable that the type of law that includes human rights is more than merely international customary law. That’s a notorious weak form of law. Better to have a country accept human rights treaties and, on top of that, include them in its constitution. If this can be combined with
- an effective and non-corrupt government – including a good police force and judiciary
- and with human rights in form 2 or 3 – which gives rights public support
then rights can exist in form 5. Not of course all rights all of the time. There will probably always be rights violations, even in ideal legal, political, governmental, moral and cultural settings.
Regarding rights in form 2 or 3: no existing moralities or religions include all human rights, or at least all rights properly and broadly defined. The full existence of rights in form 5 can therefore not follow simply from their existence in form 2 or 3. A particular disadvantage of rights in form 3 is that they’re unconvincing to non-believers or members of other religions in the community. Or sometimes the rights granted by God are only granted to believers.
A disadvantage of rights in form 4: no two moral theorists seem to be able to agree. They all think their reasons are supported by the best arguments. It seems naive to believe that there will one day be scholarly agreement on political morality. Not even a sincere commitment to open-minded, rational and serious philosophical inquiry seems to make that possible. And without rights in form 4, it’s much more difficult to correct the deficiencies of rights in forms 2 and 3. Or maybe that’s me being naive about the power of philosophy.
More posts in this series are here.