Human Rights and Negative Utilitarianism

nuclear explosion
nuclear explosion

 

Lots of people define human rights – mistakenly as I argue below – in a strictly negative sense: you can’t torture me, you can’t silence me etc. The duty bearers in such a system of human rights have exclusively negative duties: abstain from doing what harms my rights, and omit actions that go against my interests or diminish my dignity. The only positive thing that duty bearers are obliged to do is to protect us against others who fail to abstain or forbear in ways that are required by my rights.

In this view, rights serve to avoid the terrible rather than achieve the best. They put limits on what people can do, rather than allowing them to do things.

Hence the temptation to link human rights to so-called negative utilitarianism. Instead of maximizing overall happiness, pleasure or preference satisfaction as in traditional utilitarianism, negative utilitarianism seeks to minimize pain, harm, suffering and preference negation for all. However, we should avoid linking human rights with negative utilitarianism. While this type of utilitarianism avoids some of the problems of other, more “positive” incarnations of utilitarianism – for example, the problem of accepting the pain of some or inflicting pain on some if that produces a larger quantity of happiness for others – it runs into problems of its own making: e.g. the total destruction of humanity, even if very painful, would no doubt reduce human suffering when this suffering is aggregated over a sufficiently long period of time (very long periods of time when the aggregate suffering is very small). And in any case, negative utilitarianism doesn’t solve other problems inherent in all types of utilitarianism, such as preference adaptation (minimize your suffering or maximize your happiness by being modest and ascetic), objectification and instrumentalization of human beings (kill people that cause some annoyance to others in order to advance the happiness of others or reduce their “suffering”) etc.

Of course, human rights are indeed negative rules of the kind described above. But they’re more than that. They’re not just limits to the depths of evil and inhumanity; they also provide capabilities necessary to reach higher forms of humanity. Free speech rights, for example, counteract censorship and silencing of all kinds, but they also promote the good that comes from liberated discourse and argumentation. (One good being better thinking).

Also from a purely procedural point of view is it wrong to focus only on the negative character of human rights. All rights, even the most “classical” “freedom rights” such as speech, freedom from slavery and torture etc. require both abstention and active assistance. The state not only has to refrain from practicing censorship; it also has to protect its citizens against censorship by other parts of the state or by third parties. And it has to create conditions in which the risk of censorship and of other impediments to speech is minimized. For instance, an educated citizenry is more likely to enjoy its speech rights than one which hasn’t had the benefit of state sponsored education. You need to have things to say in the first place.

This should clear up another misconception in human rights theory, this time about economic human rights. If all rights require both action and forbearance, the supposed distinction between freedom rights and economic rights becomes are lot less clear. More about this here and here.

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The Rights’ Stuff

Scene from the movie “The Right Stuff”
Scene from the movie “The Right Stuff”

Suppose you want something to be a right. In other words, you want to make a new right.1 What are the ingredients that you need to “cook” it? What is the stuff that rights are made of? I’ll focus of course on the necessary ingredients only, as well as on the necessary ingredients that aren’t trivial. For example, it’s trivial that rights are universal, otherwise they would be privileges. The same triviality applies to the equality of rights, their priority, their force of obligation, their exceptional nature etc. If anything and everything can be a right, then the force of obligation of those rights and their priority over other moral or legal considerations will vanish.

So, very briefly: in order for something to qualify as a human right, the following ingredients are necessary, and concurrently necessary (though not concurrently sufficient; I’m not offering a complete list of all necessary properties of rights):

  1. We should be dealing with important claims, in some socially agreed sense of “important”. Non-important claims as well as claims that are only idiosyncratically important (for example, the claim that people should have the right to live in a climate where the temperature is consistently between 23 and 26 degrees Celsius, or the claim that a particular person should have the right to recognition as an artist) should not be turned into a right, because that would diminish the importance of rights as such and of rights in general. There’s also a pragmatic reason for allowing only important claims to contend for “rightship”: rights imply duties, and duties should not become overbearing. Too many rights equals too many duties, which in turn equals disrespect for duties.
  2. We should be dealing with claims that are amenable to social help (in the words of Amartya Sen), either through legislation, policy or horizontal help. Some claims may be important and yet impossible for people to achieve through law, governance or mutual assistance. It’s universally agreed that romantic love is an important good and that people have good and non-idiosyncratic reasons to claim that they should be loved and should be able to love. And yet no one to my knowledge has made the case that romantic love can be promoted by the courts, by governments or by beneficence (other types of love, such as agape or philia may be more amenable to social or even legal action).
  3. We should be dealing with interpersonal claims. Rights are claims from one person to another, even when we claim our rights against the state. Rights violations are always committed by human individuals, whatever their official capacity. So claims from God, for example, aren’t good reasons to make a right. We should not respect rights because God claims that we should, although of course we should welcome all motives, however fanciful, that promote the rights which we should value for argued reasons (as opposed to “revealed” reasons). Rights also exclude reasons from nature. We should not respect rights because “human nature” requires that we should. Human nature is a highly dubious concept, and can’t by itself constitute a good enough reason to value rights. Some more argumentation is required to convince us that something is a right, and this argumentation may end up with a notion of human nature but can’t start from it. One caveat: the definition of “persons”, like the definition of “important”, may evolve over time and after social discussion. For example, it may come to include animals, the dead, future persons etc.

I’ve tried before to give a supposedly complete list of the necessary properties of rights, which you can consult here. More posts in this series about the nature of human rights are here.

1 As most thinkers today, I see rights as things that are “made”. They aren’t given by God. They aren’t “natural” in the sense of being “there” just as other things of nature are “there”. People don’t have rights simply because they are natural human beings. They have rights because someone has proposed that they have rights, and that through argumentation and deliberation over a long period of time we have convinced each other that there are good reasons to have rights. Rights are “made” in the sense that we have proposed them and ultimately agreed on them. Which doesn’t mean that those among us who don’t accept this agreement – for whatever philosophical or selfish reasons – are allowed to ignore and violate rights. They should still respect them because there are good reasons why they should respect them. (Rights are part of a “justified morality“). This is a strange double nature of rights: they are both objects of agreement and beyond agreement. Strange, but not much different from any other philosophical or scientific proposition that has been found to possess good reasons for its truth, such as the proposition that free markets are often beneficial. (“Truth” not in any absolute sense, of course; future argumentation can undermine reasons that we now believe are sound, or can unearth reasons for other, conflicting propositions). The double nature of rights as things subject to agreement and yet also above agreement is apparent from the fact that rights are both legal and moral. Legal rights are – or better should be – strictly contractual, whereas moral rights of course exist independently of agreement.

What Are Human Rights? (56): Protection Against the State, and Something More

In our current, non-anarchist world, human rights depend on the state for their protection. Judicial courts, the police force and political institutions such as the welfare state and democratic governance are requirements for rights realization. Perhaps in some future state of affairs that will no longer be the case, but presently it is. Which means that human rights are more than just protective tools directed against the power of the state. They are part of the state. Or better they should be. “That to secure these rights, governments are instituted among men” says the Declaration of Independence of 1776. The state should protect its citizens against its own abuses of power (and of course also against the exercise of illegitimate power by fellow citizens, but that’s a topic for another time).

Many if not most violations of human rights are caused by state actions, even when the state in question is relatively benevolent. Power corrupts, and that is why we need rights to limit power. However, without power, rights are useless. Human rights limit the actions of the state, determine what a state is not allowed to do or should refrain from doing, and define those areas where the state is not allowed to interfere. But human rights also, and positively, determine what the state should do. They demand positive action and interference from the state.

For example: the state should not only avoid torturing its citizens, it should also actively protect and help those citizens who are tortured, most commonly by some part of the state but perhaps also by fellow citizens. This means that abstention and forbearance on the part of the state, no matter how important, are not enough. The state also has a duty to act in order to protect rights. And if human rights require that the state abstains, then the state should be actively engaged in enforcing its own abstention. (Needless to say that this implies a separation of powers).

This active engagement can even go one step further. Human rights sometimes require more than actively enforced abstention. What is true for torture is also true for economic rights: the state should not only avoid creating or maintaining poverty but also try to create a minimum amount of prosperity for all. A right not to suffer poverty is an example of a right that requires the obtention of something (although it can also require abstention as in the case of Mao’s Great Leap Forward). Here we’re dealing with so-called positive rights as opposed to negative rights. (In French they call it ”le droit à l’obtention et à l’exigence” as opposed to “le droit à la résistance et à la défense”).Whether you like it or not, the state is often one of the parties that should assist people in obtaining what they have a right to, at least on the condition that there’s no other, less invasive means of obtention.

But let’s not put too much emphasis on this distinction between abstention and obtention, or between negative and positive rights. Every human right, including those rights that seem to demand only the absence of state action, require state action, for example action in the form of a judgement of a court of justice concerning an illegal state action, and the police measures enforcing this kind of judgement. The state should commit, as well as omit; prevent, provide, protect and engender, as well as forbear; and it’s not at all obvious that particular types of human rights systematically need more of one or the other type of state conduct.

Something merely negative, such as abstention, forbearance or a limited state, can never constitute a state, as Hannah Arendt has rightly stressed in “On Revolution”. There is a reason for having a state.

Human rights, particularly in the early stages of their historical development, were considered as primarily directed against the state. This was also the main cause of their initial success. The theory of anti-state rights was inherent in the idea of human rights as natural rights. Natural rights, as opposed to legal rights, are not given by the state and can be used by citizens as an instrument of defense against the state.

However, none of this should make us forget that there is something inherently positive in the state and that rights can’t be entirely “natural”, whatever that means, at least not if we want them to be real and enforceable. As things are in our day and age, it’s often the state and its legal rights that protect us against violations of our human rights, at least ideally and more commonly when the state is a democracy. It does this, not only by passively abstaining, but also by actively doing something.

More posts in this series are here.

What Are Human Rights? (55): Universal, Not Uniform

Universality doesn’t equal uniformity. If we insist on uniformity, then we will probably not achieve universality. We will convince more people of the desirability of human rights if we take local circumstances into consideration than if we simply copy things coming from the outside. And that’s not just a tactical surrender: we don’t need uniformity.

Regional differences are possible both at the level of the laws that protect human rights, and at the level of the ways in which these laws are applied, and all this without impairing the universality of human rights. We can frame laws in a flexible way and we can apply them in a flexible way.

1.

Laws are necessary (although not sufficient) for the effective protection of human rights. However, it’s obviously impossible and undesirable to have the same laws in all countries, even the same basic laws. We have to translate the general, morality based language of treaties and declarations into specific and operable legal wordings, and those can differ from country to country, as well as from period to period. Effective laws and rights can’t be formulated in a globally uniform way or in a way that does not take the concrete circumstances in which they have to function into consideration. As these circumstances differ from country to country, the laws have to be different as well. Laws have to correspond to specific needs. A certain social or political context can make it necessary to focus attention on one particular right, on one particular group of rights or on one particular aspect of a right.

A “Bill of Rights” is always a “Bill of Wrongs”. Rights begin with the experience of an injustice. According to the nature of the injustices or “wrongs” in a particular society, some rights have to be especially accentuated or elaborated. Sometimes, elements of rights have to be specified in one country but not another because the problem in question is present only in one country. For example, we can imagine that in post-Soviet Russia, for example, there is a need for a right establishing the freedom to criticize the works of Marx and Engels, or a need for a particular emphasis on the right to private property of the means of economic production. In the constitutions of other countries there may be no need for such an emphasis because the things one wants to protect are never threatened.

Of course, this doesn’t mean that circumstances or “cultures” should be given priority over rights. It only means that the need for certain rights or for certain emphases can be different in different cultures or countries. Human rights have to be integrated in concrete legal systems and concrete societies, each with their own history and their own problems, but this contextuality does not imply ethical relativism or “anything goes”.

Insisting on global uniformity also means disregarding the fact that rights evolve. The body of rights as it exists now is not fixed for all times. New rights or new and wider definitions of existing rights can be established when new wrongs are identified, for example as a consequence of technological or scientific developments (think of the internet, which may require a new right to internet access). It can also happen that we need new rights because we have only now become aware of certain wrongs that have existed for ages, but have been neglected. This was the case for women’s rights, although some of those rights – such as universal suffrage – are a different emphasis rather than an innovation.

Similarly, we may one day have to eliminate rights that become superfluous. Maybe food shortages can become a thing of the past, given the right technology and political will. If so, then the right to food will sound as strange as the right to air does today (although the same future may remove the strangeness of the latter).

2.

Not only the legal formulation of rights should allow flexibility; the same is true for the ways in which given formulations are applied by judges. In order to take into account certain specific needs, laws can be applied in a flexible or different way according to the context. Most human rights are not absolute. They can be limited when limits are required in order to protect other rights or the rights of others. Someone’s right to property, for example, can be limited if this is necessary to realize the economic rights of other people. We have a right to property but not at the expense of the rights of people who do not have enough property to survive. Rights can contradict each other or can be used or misused to harm people, and when this happens, priority has to be given to one right or another, or to the rights of one person or another. The protection of one right may require limits on other rights.

This does not contradict the claim that rights are interdependent. In many cases, rights are dependent on other rights. In other cases, rights require limits on other rights.

How do judges decide which right has priority? Normally this is the right that in the given circumstances best protects the different goals and values of rights. Take for example the conflict between the right to freedom of expression of a journalist and the right to privacy of a public figure. What value is served by the publication of the sexual habits of a politician? None, I believe, except, of course, when these habits influence his or her public role. Normally, the right to privacy should prevail in such a case. A publication describing the sexual habits of someone does not contribute to any of the values that rights are supposed to serve, such as prosperity, peace etc. On the other hand, the right to privacy of the politician obviously does contribute.

The flexibility of human rights is expressed in the way in which these rights are limited. A country with a serious problem of violence, crime or terrorism needs a strong police force. Certain rights will then have to give way to the so-called integrity rights (life, physical integrity, security etc.) and will have to give way to a larger extent than in other states. States that face a persistent and widespread problem of racism can be forced to impose more severe limits on the freedom rights of some, in order to protect the equality of others. Maybe Germany does have to be less forgiving towards neo-Nazis and their right to speech and to associate – maybe it even needs a law against them.

It’s true that circumstances can be used as an excuse to violate rights. But that’s not an argument in favor of uniformity.

More posts in this series are here.

What Are Human Rights? (54): The Scope and Coverage of Rights, As Exemplified by Free Speech

It’s important to know what exactly is covered by a certain human right, otherwise we can’t be sure that we have a right to do what we do and we can’t properly protect others against violations of their rights. Maybe we think that a right protects a certain thing that we do but in reality this thing is outside the scope of the right. Or maybe we want to protect other people engaging in an activity but none of their rights covers this activity.

So you see the importance of the question of coverage or scope. Having a right means knowing how far this right goes. Answering this question requires an answer to at least three further questions:

  1. Who’s protected by a right? And whose activities are restricted by it?
  2. What types of actions are protected by a right, and to what extent? Where is the line between protected actions and legitimate restrictions on actions?
  3. Which obligations does a right impose on whom?

Let’s try to answer these questions by way of the example of the right to free speech.

1. Who’s protected by the right to free speech? And whose activities are restricted by it?

1.1. Who’s protected?

Both speakers and audiences are protected. A cursory look at the language – “a right to free speech” – would lead us to assume that only speakers are protected, but that’s wrong: the right to free speech includes the right of audiences to receive the free speech of others. The interests of both speakers and audiences are protected by the right to free speech. This is evident when one takes a closer look at the exact formulation of this right in legal texts.

One reason for this is a purely logical one: speech without an audience doesn’t make sense. Another, more substantive reason why the right to free speech also protects the interests of audiences has to do with the role this right plays in the search for truth. In a nutshell: audiences are necessary for the refinement of arguments. Read the post I just linked to for the full story.

Other groups that can legitimately claim protection of their speech are

  • foreigners: there’s no good reason to assume that foreigners residing within a country’s jurisdiction should not enjoy the same speech rights as citizens (the same isn’t necessarily the case for all human rights)
  • future generations: current generations shouldn’t act in ways that restrict the freedom of speech of future generations
  • companies, etc.

1.2. Whose activities are restricted?

A list of protected actors only tells us a tiny bit about how far a right goes. Defining the agents or institutions whose actions are bound by the right is equally important. Traditionally, it’s assumed that the right to free speech – like all other rights – limits the power of governments. Of course it does, but it also does a lot more. If it would only restrict a government’s power to prohibit and sanction forms of speech, then the scope of the right to free speech would be rather limited because private persons would be at liberty to restrict it as they see fit. Theoretically, although not always legally, the right also restricts private individuals, companies, churches etc. None of those agents or institutions has a right to prohibit people from exercising their right to free speech.

2. What types of actions are protected by the right to free speech, and to what extent? And which are legitimate restrictions on actions?

The scope of a right depends on decisions about who is allowed to claim it and about who is bound by this claim, but it also depends on the types of actions it protects or fails to protect. In our example, we have to define “speech”. On the one hand, it can’t just be the spoken or written word since we express ourselves in ways that don’t involve speaking or writing. Audiences also want to receive information in forms different from ordinary language. For example art, data and speech acts such as flag burning should also be covered by the right to free speech.

On the other hand, not all forms of expression or information gathering should be covered, because then everything would be covered and legislation would be impossible: every act including murder can be conceived as an expressive act, and people can find information anywhere. Not all expressive acts or information gathering can or should be legally protected. Hence, one has to draw a line somewhere.

The exact location of the line, and hence the exact scope of the right to free speech, varies from case to case and depends on the impact of language and speech acts on other rights and the rights of others. For example, if hate speech violates other people’s rights (such as their freedom of residence or movement), then this form of speech falls outside the scope of freedom of speech. Mere derogatory speech on the other hand may not result in rights violations and then falls within the scope. Speech acts such as cross burning may also, depending on their impact on the rights of others, fall either within or outside the scope (cross burning during a private party is different from burning a cross in the front lawn of a lone black family living in a racist neighborhood).

Another way of putting this is that the scope of one right is determined by the scope of other rights, or that the scope of the rights of some is determined by the scope of the rights of others. Both scopes need to balanced against each other. This balancing is usually the business of judges and there’s no way to fix the outcome by way of strict rules. It all depends on a personal judgment by a judge about the harm done by including an action in the scope of a right compared to the harm done by excluding it. Hence, the scope of a right can never be completely fixed. We can never tell exactly how far a right goes.

The same logic holds for so-called place and space restrictions and fairness restrictions. A right to free speech doesn’t imply a right to free speech in any chosen space or place: not everyone as a right to publish in the New York Times or to speak in Congress; and you can’t insist that you have a right to speak in someone else’s house or private property, unless proper balancing has resulted in a judgment that in a specific case the right to private property should give way. (The latter may be the case when private restaurant and shop owners band together to discriminate black customers and when those customers stage protests). Place and space restrictions can be justified either by the necessity to respect the scope of other rights (property for instance) or by the fact that sufficient alternative speaking channels are available (the NYT isn’t the only newspaper).

Examples of fairness restrictions are the prohibition of the heckler’s veto and the fairness doctrine. In both examples, the right to free speech of some is restricted in order to guarantee the right to free speech of others (proper balancing is again required; methods of balancing are discussed here).

Obviously, the actual as opposed to the theoretical scope of the right to free speech isn’t just determined by legitimate restrictions. In real life, as opposed to ideal theory, governments and (groups of) individuals impose illegitimate restrictions. And other, more creeping restrictions such as chilling effects, psychological biases, self-censorship and political correctness, exist as well.

3. Which obligations are imposed on whom?

A final way of measuring the scope of the right to free speech is by having a look at the nature of the obligations it creates. More wide ranging obligations make for a wider scope, and limited obligations for a limited scope. And here as well we find a common misunderstanding. (A first misunderstanding was that the right only protects speakers; another was that it only limits the power of governments). It’s not true that the right to free speech only imposes a negative duty not to restrict speech. This negative duty is important but it’s also meaningless when it’s not accompanied by more positive duties. For example, a person’s speech may not be restricted by anyone and yet her lack of education, leisure time or other resources make it impossible for her to engage in meaningful speech. Hence, the government and others have certain duties to provide resources: education, internet access etc. And let’s not forget that a negative duty to refrain from speech restrictions requires a positive duty to provide mechanisms such as courts, a police force and other means to undo or prevent speech restrictions.

Similar arguments can be made for most other rights.

PS: here are some useful links that I’ve recovered from a previous post and that are relevant to the question at hand:

A related post on the dimensions of human rights is here. More on free speech here.

What Are Human Rights? (53): Have Human Rights Lost Their Meaning?

Human rights have started to look somewhat like a substance spread so far and wide that it has lost its depth. Some use rights to promote peace, while others take them to war against oppressive dictators. Some say that abortion is a right of the mother, while pro-lifers say that it’s about the right of the baby. Religious believers are urged to respect the rights of those they view as morally depraved, but the former answer that the way they treat the latter is a matter of religious liberty. Putin intervenes in Ukraine for the sake of the rights of Russians, while Ukraine counteracts because of the rights of Ukrainians. Almost every political or moral debate is now essentially two groups of people throwing rights at each other. And as with all things that are used for anything and everything, rights have lost their meaning. At best, their meaning has become very thin.

Part of the reason for this “thinness” is overinterpretation; another part is rights inflation. We should of course interpret rights. Their meaning isn’t obvious. The only thing that is more or less undisputed are a few lists with rights described in one or two sentences. As is clear from the examples given above, what these sentences imply for specific cases is hotly contested. We can try to give some substance to the meaning of different individual rights, as well as to the idea of rights in general. This is in fact what I try to do in this blog series, and what many others try as well. But success is far from guaranteed, if it’s even clear what success would mean in this case. At a minimum, some form of widely shared agreement, I guess, such that for instance religious believers accept that their rights do not warrant violations of the rights of non-believers.

Likewise, while we should allow rights to evolve – new wrongs may require new rights – we should also try to agree on some outer boundaries and perhaps make a division within the set of rights between fundamental or basic rights on the one hand and aspirational rights on the other. It would harm the practical effectiveness of rights if we can’t set limits on interpretation and evolution. We wouldn’t want to deal in empty promises.

But is there really a “thinness” to human rights? There is certainly overinterpretation and inflation, but the “spread substance” metaphor is somewhat misleading. Perhaps rights haven’t really lost their meaning. As with all fundamental philosophical concepts, there wasn’t an a priori meaning to begin with and hence no original content that has been squandered. Political and moral disputes, because they are increasingly framed in a language of rights – as opposed to the language of duty, honor and virtue – have made the concept of rights more complex and contested than it needs to be, and perhaps even murky and vague. But that is because there’s too much meaning rather than too little. Taking again the same example: the claim that religious liberty should include the freedom to discriminate is a claim to unwarranted “thickness”. We need to be clearer on the content and extent of human rights, but perhaps it’s wrong to say that rights are “lost”.

More on the causes of the increase in human rights talk is here. More posts in this series are here.

What Are Human Rights? (52): Legal Rights, and Something More

Ask a lawyer and she will say that human rights are a kind of law that people can appeal to in a court of law. Ask a member of Amnesty International and she will say that human rights are moral claims about what people – all people, everywhere – are entitled to on the basis of their humanity, even if the laws of their country don’t give them what they are entitled to. Ask an anthropologist and she will say that human rights are moral or legal claims that are part of a certain culture somewhere.

And all of them are right, of course.

Human rights are, in many cases, legal rights, together with other legal rights which aren’t human rights (for example the right to acquire a driver’s license at the age of 18). However, some human rights in some countries in particular aren’t yet recognized in the local legal system. In that case, rights are “mere” moral claims, rhetorical claims one could say, with an uncertain effectiveness compared to legal rights. Perhaps these moral claims are “legal rights in waiting”. Indeed, many moral claims are uttered in an attempt to turn them into legal claims if at all possible. An example could be the right to free speech in China.

However, not all moral claims have this intention. It’s not always obvious that the law is the best means to foster respect for moral claims. The right to work, for instance, may be better served by sound economic policy than by its transformation into a legal right. In the case of some moral claims – and now I turn to point 3 in the drawing above – it’s even wrong to try and turn them into laws. A woman’s right to equal standing and voice in her household for example – which is a right based on the right not to be discriminated – should probably not be turned into a legal right because we don’t want the law to mess with people’s households.

The fourth point in the drawing refers to morality not in the prescriptive but in the descriptive sense: rights can be part of a culture’s accepted ethical standards. In which case it may or may not also be part of that culture’s legal system (if the right is deeply entrenched in the culture it may not be necessary to recognize it in law).

Each of these four types of human rights are equally “real”. You sometimes hear the argument that only legal rights are “real” rights, and that moral rights – or natural rights, or human rights or whatever – are “nonsense upon stilts“. This is a strange assertion, when you think about it. Moral claims can be quite effective. Amnesty International and others have done great work over the years. Conversely, many legal rights are less effective than we tend to think. Most jurisdictions have incorporated the right to life through laws against murder, manslaughter, aggressive war etc. And yet murder and war are still quite common.

The four types of rights are connected and interdependent. Human rights are both the children and the parents of law. Law is often an effective means to make rights real, and in that sense rights are the children of the law. But laws are often legal translations of pre-existing moral claims, which makes rights the parents of the law. Human rights are also the children and the parents of culture. It’s undeniable that rights have developed in cultural contexts that were amenable to rights (and I’m not only talking about the West, by the way). Conversely, it’s equally true that rights create their own culture. Something similar is the case for morality: rights are the children of morality because they are means to realize certain moral values, but at the same time they become moral values themselves.

More posts in this series are here.

What Are Human Rights? (51): Types of Rights

Even a cursory look at some of the more famous human rights treaties or declarations makes it clear that the different rights that are listed in them are often quite different from each other in the sense that they intend to do different things. Some rights give people freedoms. Other rights offer protection or certain benefits. Still other rights recognize a status. And some rights are more like goals.

An example of a freedom is speech or property. The rules against torture or slavery are protections. Education is a benefit. Rights of defendants in court are status rights. And work and a minimum standard of living are goal-rights.

In fact, it’s wrong to say that rights themselves do things such as giving people freedoms, protecting them or offering them benefits. It’s duty bearers, responding to their obligations, who make freedoms real when they abstain or forbear, who protect, who give certain benefits or assist people in achieving those benefits, who respect or recognize people’s status, and who work towards progressive realization of certain goals. These different types of obligations are implicit in the different types of rights – sometimes even explicit.

It’s important to make these distinctions between types of rights and types of duties because people need to understand their duties and what is expected of them. If the human right to have a certain minimum standard of living is understood as a protection rather than a goal, then a third world government failing to eradicate poverty and yet making as much progress as it can would be wrongly condemned as violating this right. Likewise it would be wrong to view the elimination of torture as a goal requiring progressive realization.

Of course, these distinctions aren’t as neat as I present them here. You can make the case that poverty reduction is not just a goal but also a freedom. Government abstention rather than goal centered intervention is sometimes a better means to fight poverty. The same is true for the right to work. And slavery is just as much a matter of status as something that people need to be protected against. And so on.

More on types of rights is here. More posts in this series are here.

What Are Human Rights? (50): Rights and Roles

Before rights became human rights they were privileges: in feudal times, certain professions had certain rights, towns had rights, social classes had rights etc. Often only members of a so-called “guild” had a right to trade or to engage in a profession. The simple fact of being born into the aristocracy gave the members of that class rights that no one else had or could have.

When the development of the capitalist economy made it more likely that people born in one class, profession or town ended up in another one, it became more practical and wise to claim rights as human beings rather than rights as an aristocrat, a Venetian or a member of the wood worker guild. If a revolution were to destroy your status as a Lord or if an economic crisis were to force you to move to another town and enter another profession, at least you would still have your human rights.

A remnant of this is still visible in human rights as they are today. Although all human rights are explicitly the rights of all human beings, some rights at least are rights of human beings engaging in certain social roles and are unintelligible outside the context of those social roles. The right to political participation is a right of human beings as citizens and doesn’t make sense if you haven’t first made sense of the role of citizenship. The right to work, the right to a decent wage, the right to a certain standard of living and the right to unemployment benefits are rights of people as workers. The right to marry is a right of human beings as family members. The difference with the “rights as privileges” of before is that all human beings are free to engage in all roles if they want to.

More posts in this series are here.

What Are Human Rights? (49): Universal Rights

Human rights are universal rights, rights that all human beings have for no other reason than being human. That’s almost a tautological statement, and one which has been repeated millions of times. Universality is implicit in the name. This sets human rights apart from other types of rights, such as legal rights which only matter to those subject to the particular jurisdiction in which these legal rights apply, or contract rights which apply only to the people bound by a particular contract.

Despite this definition of human rights, their universality is often contested. Does a person with Down Syndrome have the right to work? Does a newborn baby have the right to free speech? Does a criminal have a right to freedom of movement? Do all potential immigrants have a right to unemployment benefits? Does a terrorist who can order his colleagues to stop torturing three other people have the right not to be tortured? Questions like these are often rhetorical: the unstated but understood answer is “of course not”. People who ask these questions perhaps do so because they want to deny the universality of human rights, and this denial in turn may come in handy when they try to justify violating the rights of some.

There’s in fact an easy answer to this apparent paradox. The universality of human rights is, like human rights themselves not a fact but an aspiration. We have to work to make it a fact, all the time knowing that we’ll probably never get there. We have to work to improve people’s capacities so that they can more fully enjoy their rights. In the case of the disabled, we should recognize that disability, rather than an inborn or acquired lack of capacity, is in fact – in part at least – a capacity that is reduced as a result of the way in which we have chosen to organize society. In the case of criminals, we tend to assume rather too quickly that criminal punishment necessarily involves restrictions of people freedom of movement. And so on. None of the rhetorical questions cited above strikes a fatal blow to the ideal of universality.

More on universality is here. More posts in this series are here.

What Are Human Rights? (48): Something That Can Be Bought?

Take a look at this list, helpfully compiled by Michael Sandel:

  • In Santa Ana, California, and some other cities, nonviolent offenders can pay for a prison-cell upgrade costing $90 a night. This gives them access to a clean, quiet jail cell, without any non-paying prisoners to “disturb” them – read: rape them.
  • Couples believing that their infertility impedes their right to a family life can buy an Indian surrogate mother for $8,000, less than one-third the going rate in the United States. Similar transactions take place between patients in need of organs and willing donors, the latter of course very often poor and desperate.
  • In the U.S., patients who want easy access to a good doctor can buy their doctor’s cellphone number for $1,500 and up per year. A growing number of “concierge” doctors offer cellphone access and same-day appointments for patients willing to pay annual fees.
  • People wanting to emigrate to the U.S. can do so when they invest $500,000 and create at least 10 full-time jobs in an area of high unemployment. This makes them eligible for a green card that entitles them to permanent residency.
  • A single mother in Utah who needed money for her son’s education was paid $10,000 by an online casino to install a permanent tattoo of the casino’s Web address on her forehead.

In all of these cases – and probably in many others I’m not aware of – people pay money or sell themselves – or parts of themselves – in order to have their rights protected, or they get paid in order to help others secure their rights.

I’m sure I’m not the only one who’s distraught by this. It’s true that rights protection costs money – a lot of money – and a large proportion of what we pay in taxes is used by governments to protect our rights (taxes pay for a police protection, judicial protection, welfare, healthcare, education and other rights). So why shouldn’t individuals be able to bypass the state and use their money to secure their rights when the state or others fail to do so? (By “others” I refer to NGO’s, international institutions, private charities etc.). After all, everyone should be happy with better rights protection, no?

Well, yes, unless we start something that will lead to systematically unequal rights protection. We don’t want the wealthy to have better rights protection than others, or to be able to continuously improve their marginal protection (e.g. a gated community as a defense against unlikely attackers) while the poor are left with almost no protection at all. Slightly modifying the meaning of a standard expression: might shouldn’t be right. The advantage of outsourcing rights protection to the state is that we pool resources and use them where they are most needed. The market isn’t always the best place to allocate rights protection.

Even the rich will consent to this. After all, they may be able to buy some of their rights, but not all of them and not all of the time. Participating in government protection mechanisms will secure their rights when their money can’t.

Another problem caused by individuals buying their rights is that we may see crowding out of moral motivation. If other individuals, companies or governments can get money for securing rights, they’ll stop securing rights for moral reasons. And finally, the concept of rights will be corrupted. Rights are not something which should have to be bought. They are something people have a moral duty to give. Allowing rights to be bought and sold corrupts the value and meaning of rights.

More posts in this series are here.

What Are Human Rights? (47): A Hostile Symbiosis

“Hostile symbiosis” is a concept I borrow from Benjamin Wittes. The idea is that the different human rights that are part of the system of human rights are both mutually dependent (or interdependent) and at the same time hostile to each other. For example, the publicity of free speech can’t exist without the privacy offered by privacy rights (no light without darkness), and yet at the same time respect for a person’s privacy may require limitations of someone else’s speech rights. Religious liberty can’t exist without equality of rights (religious liberty is in fact religious equality) and yet it may be necessary to allow religious groups the right to discriminate against candidate members in order to preserve their religious identity. And so on.

The same rights which are in one case interdependent and which can’t exist without each other, are in other cases mutually hostile and need to be balanced against each other and limited for the sake of each other. Hence the concept of hostile symbiosis.

Symbiosis is a term from biology, and is a combination of the Ancient Greek terms for “together” and “living”. It refers to close and long-term interactions between different biological species, the classic example being the clownfish and the sea anemone. A clownfish feeds on small invertebrates that otherwise have potential to harm the sea anemone and it’s territorial instinct protects the anemone from anemone-eating fish. In addition, the fecal matter from the clownfish provides nutrients to the sea anemone. The clownfish is in turn protected from predators by the anemone’s stinging cells, to which the clownfish is immune.

This is not a hostile symbiosis, as in the case of different human rights. Human rights form not just a hostile symbiosis but also an obligate symbiosis, meaning that both symbionts entirely depend on each other for survival. That is, as I understand it, not the case with clownfish and sea anemones, but some types of fungi and tree symbioses for example are obligate in nature. Many varieties of fungus live in close association with trees and other plants, drawing in nutrients from deep underground and providing them to the tree in exchange for a share of the energy (in the form of sugars) produced by the tree’s photosynthesis. The trees need the fungi in order to gain nutrients more efficiently (source).

Some more examples of what I’m talking about are here and here. More posts in this series are here.

What Are Human Rights? (46): Equal Rights, Ctd.

The idea that human rights are equal rights is trivial at first sight. However, it becomes problematic after some reflection, and only regains its persuasiveness after even further reflection. When you think about it, equal rights for everyone is a strange idea. Why should all people have the same rights? Why should a preacher of violence and hate have the same right to speak freely as the world’s best poet? Why should a religion that oppresses women have the same right to exist as a religion that loves peace and equality? Why should people who haven’t finished primary school have the same right to vote as experts in government matters?

Agreed, they are all human beings and human rights are the rights of human beings, but that’s a tautology, not an argument. A somewhat more promising foundation for the notion of equal rights goes like this: one can argue that people need human rights in order to realize certain of their most fundamental and commonly shared values. If that is true, then rights should be equal rights.

Most people value the ability to express themselves, to belong to groups, to share a common identity (e.g. a religious one), to govern their own affairs, to enjoy peace and prosperity etc. And we know that they need human rights to realize these (and other) values. Agreed, some of us may not want any of this, but then they can waive their rights. And only THEY can. People should decide for themselves whether they need rights and need them equally; others shouldn’t decide for them. That is probably the only morally sound way to treat people.

We can also justify equality of rights on the following grounds: we don’t want rights just for ourselves and for the things we value for ourselves; we also want other people to have rights and to have them equally – or at least we should want this if we are to reason coherently. This is not a requirement of morality or altruism – although it can be, obviously – but simply one of logic and coherence. The right to express myself, to belong, to live in peace and prosperity, to vote etc. makes no sense if I’m the only one to have those rights. Even if others use their expression or their votes or whatever in a stupid way, they should have the right to do so – as long as this use doesn’t imply rights violations of course. Hence, equality of rights is a logical requirement in the system of rights.

More posts in this series are here.

What Are Human Rights? (45): Negative or Positive Rights? Ctd.

I realize now that this previous post wasn’t any good. I need to do a lot more to clarify the difference between negative and positive rights, and to argue that there are indeed two types. Most people assume that there’s only one type and that human rights are always and only negative rights:

  • the right to free speech is a right not to be silenced, not a right to be given the ability to speak (e.g. to have my vocal cords healed)
  • my right not to suffer arbitrary arrest is not a right to be rescued from a cave (in the words of Jonathan Bennett)
  • my freedom of movement is a right not to be hindered, not a right to roads
  • etc.

These examples are meant to make two points, both of which I want to contest:

  1. many so-called rights violations are really not rights violations because there is no violator
  2. rights require only the removal of constraints, more specifically of human imposed constraints.

It does seem to be the case that there can only be a right when someone can violate it (see here), and in the examples above there is no one violating a right: my vocal cords gave up without anyone’s help, and I got stuck in the cave because of my own stupidity or because of a natural calamity. And indeed, the conventional wisdom is that there are numerous types of inabilities which render rights meaningless but which are nonetheless not rights violations because there is no one who caused the violation. In other words, not all inabilities or harms are rights violations, not even if they render rights meaningless.

However, this conventional wisdom is wrong for several reasons. Often there is a violator lurking in the shadows and his or her presence is not clear at first sight. For example, many believe that poverty isn’t a rights violation because no one causes poverty; poverty is just the unfortunate outcome of economic circumstances, like my falling into a cave is the unfortunate outcome of my own stupidity. But that’s not necessarily true: poverty is often the direct result of purposeful and conscious actions by dictators, by the designers of international trade or migration policy etc. So one should be careful when arguing that something is not a right or not a rights violation because there’s no violator. Often there is one but you just fail to notice it.

The second claim implicit in the examples above is that rights require the removal of constraints, not the provision of abilities: free speech requires the removal of censorship, not the provision of the ability to speak; freedom of movement requires the absence of government imposed restrictions on movement, not the provision by the state of roads (even if the absence of roads makes freedom of movement meaningless); etc. However, even the removal of censorship requires the provision of judicial systems, of a police force etc. Hence, it requires the provision of abilities: the ability to sue censors, to send the police to them etc. I see no reason why these abilities should be limited to the ability to remove constraints, and why they should exclude abilities such as education. If rights are important, then people should have the abilities to make their rights real; sometimes this means removing constraints, but often it means providing abilities. Why should it be a big thing when someone is censored, but not when someone is denied the education necessary to make speech possible and meaningful in the first place?

The conventional wisdom – quoted above – that not all inabilities or harms are rights violations, not even if they render rights meaningless, is only partly true. Not all inabilities or harms are rights violations: my broken heart is not a rights violation. But there are many inabilities and harms – even some for which we can’t identify a human agent causing the inability or harm – which are still rights violations because they render rights meaningless. Rights violations don’t always require the presence of a violator and require more than the removal of constraints.

More posts in this series here.

What Are Human Rights? (44): External Constraints on Politics, Means of Politics, or Objects of Politics?

People describe and define human rights in lots of ways, but perhaps the most common definition is this: human rights are external constraints on politics. They determine the boundaries that political action – action by both authoritarian rulers and democratic majorities – should not cross. I want to use the metaphor of the ring to clarify this, because that will help us later on in this post. Political action – including legislation – is constrained by a ring of rights.

This definition – let’s call it definition 1 – places human rights squarely outside of and even prior to politics. This is why oppressive actions by authoritarian rulers who have not enacted human rights law can still be condemned by human rights talk. If rights were just a part of politics, this wouldn’t be possible because they would be on the same level as authoritarian politics and they would therefore lack constraining power. (Of course, it is a fact that human rights often fail to constrain, but I’m dealing here with the moral and not factual status of human rights).

The same logic applies to democratic governments that have enacted human rights law: their actions as well should, ideally, stay within a realm defined by a ring of rights. The difference with authoritarian governments is that democracies have more efficient extra-political means to keep their governments within the ring, at least some of the time (for example judicial review; in the case of authoritarian governments there are also means – such as foreign intervention, rebellion etc., but those are normally a lot less effective).

So that’s definition 1, and it’s good as far as it goes. The problem is that it doesn’t quite capture the essence of human rights in a democracy. Rights are not just or not merely outside of politics in a democracy – they are intrinsic to it. Democratic politics can’t function without human rights; rather than external constraints on politics, rights in a democracy are essential means of politics. They are the foundation on which democratic politics can function. That may be obvious in the case of some rights – no democratic politics without free speech, assembly or association rights and the right to vote – but it’s true for all rights (for example, I argued here that violations of the right not to be tortured can undo democracy).

So let’s call this definition 2 and represent it like this: the ring has become the foundation. Now, it may look as if these two definitions are contradictory and incompatible: something is either an external constraint or a means, but never both. However, rights should be both: we need rights as foundations and means of democratic politics, but at the same time we want rights to be able to constrain democratic politics when necessary (for example when the majority wants to violate rights). I think we can have both.

Things get more complicated when we consider a third definition: rights as objects of politics. The two previous definitions assume that rights are uncontroversial, but that is untrue. Human rights are objects of frequent and reasonable disagreements. They are not self-evident, God-given or axiomatic. They need justifications and arguments, and different people will have different justifications and hence different definitions of rights. The only way to deal with these disagreements is through politics: discuss them in public, and let the majority vote. (E.g. should work be a right, should unemployment insurance be, should incitement be protected as free speech? etc.) As a result, the width and strength of the ring of rights changes over time.

One could argue that it’s not up to politics to decide these disagreements, and that instead a constitutional court should deal with them. However, we know from experience that this doesn’t work: politics will continue to interfere, either directly through legislation or indirectly by way of interference with the workings of the court.

And there’s an even more fundamental problem. Definition 3 looks like it’s incompatible with definitions 1 and 2. If rights are supposed to function as constraints on politics, then we shouldn’t place rights within the political process which they should constrain. When we allow rights to become objects of politics then majorities can easily destroy the  constraints that bind them. Similarly, when majorities are allowed to vote on the fundamental means of politics they may well decide to destroy those means.

The solution is not the removal of rights from politics – that’s both illusory and undesirable – but rather the creation of a distinction within politics: normal political decisions should be absolutely constrained by human rights and should respect rights as the fundamental means of politics; and then there is constitutional politics, which is a periodical – and not a day-to-day – form of politics that tackles society’s basic rules, including human rights. Normal majoritarian procedures don’t apply here. Special majorities are required as well as other safeguards against the destruction of rights.

More posts in this series are here.

What Are Human Rights? (43): A Bit of Etymology

There’s an interesting story to tell about the word “right”. It’s of course a homonym. The word has at least three completely different meanings:

  • right as opposed to left
  • right in the sense of correct (“consonance with facts and reality”)
  • and, obviously, right as an entitlement or moral title, i.e. a moral claim or a legally permitted action grounded in a moral claim.

However, these meanings, although apparently unrelated, have a common core:

How did it come to mean “the opposite of left” and also “something to which one is legally, morally or naturally entitled”?  This wouldn’t be so weird—words have multiple meanings all the time—except that Spanish “derecho”, French “droit”, Portuguese “direito”, German “Recht” and other words all carry the same double-meaning. In German, you can also say “Du hast Recht”, “you’re right”, so “Recht-recht-recht” has the same triple meaning in German as “right” (entitlement), “right” (not left) and “right” (correct) in English. In Slavic languages, the correct/not-left/entitlement words also share the same root (“prav”), which yields Russian “pravda” (“truth”) to boot. The connections between the different senses of “right” are old, and deep.

What links all the words? The answer is a sense of naturalness, appropriateness, correctness. In a world where goodness (right) prevails, people will get what they are morally due (their rights), and will be correct (right) in their thinking and doing. …

Where does the not-left meaning come in? Simply, as the OED explains, because the right hand is the stronger and more appropriate one for most people to use for most tasks. Tellingly, the word “leftin several languages is cognate to English sinister, like “sinistra” in Italian. In many cultures, including non-European ones, the left hand is considered debased, suspicious, perhaps appropriate only for dirty tasks. (Items should not be handed over or received with the left hand in many Asian cultures, for example.) “Left” itself in English comes from a root meaning “weak” and so, in some contexts, “worthless”.

With all this history, it’s no surprise that left-handers have long found the world less than congenial. The Wikipedia article on “Bias against left-handed people” is thousands of words long. (source)

I’m surprised this isn’t a more common line of attack in politics.

More posts in this series are here.

What Are Human Rights? (42): Individual, Not Individualistic Rights

Opponents of human rights often define them as expressions of the individualism and antagonism that is typical of the West. Human rights are viewed as claims against society made by individuals who want to be left alone and who need rights in order to live their peculiar kind of lives free from the intolerance and interference of the larger community. As such, human rights are believed to be incompatible with, detrimental to or at least utterly useless in non-Western societies that are more collectivist, more communitarian, more focused on harmony and less interested in protecting and fostering peculiar lifestyles.

I don’t want to argue for or against these characterizations of Western and non-Western societies, although I do believe that they are wrong and simplistic. I’m also not expressing myself about the relative moral value of individualism and antagonism as opposed to community. What I want to do here is object to the portrayal of human rights as individualistic rights or as rights that promote individualism. Although human rights are the rights of individuals and not the rights of groups, there’s nothing in human rights that makes societies necessarily more individualistic or antagonistic. Many human rights are designed to protect communities, bind them together, and allow them to co-exist with other communities. That’s the case for the right to religious freedom and the assembly and association rights, but also, perhaps less obviously, for freedom of speech. A major function of speech is persuasion. People speak in order to persuade and bring outsiders into a group that holds certain beliefs. This is even more evident in the case of the right to political participation. I don’t understand how anyone can fail to see the importance of community in the system of human rights.

Human rights even have a collectivist side to them. Collectivism is

any philosophic, political, religious, economic, or social outlook that emphasizes the interdependence of every human being. (source)

Indeed, everyone’s rights are dependent on everyone else’s rights. Few if any of my rights make sense if I’m the only one having them or the only one being able to exercise them. If I can speak but nobody else can, then what is the point of me speaking? I will just be talking to walls. If I have freedom of religion but nobody else has, then with whom will I worship and congregate? If I have a right to a fair trial but everyone else is forced to give false testimony or no testimony at all, then I won’t have a fair trial. Etc. The effectiveness of my rights depends on everyone else having equally effective rights. Individualistic rights are therefore nonsensical.

A remark that’s probably superfluous: I’m in no way defending collectivist politics or disparaging the value of individualism. My point is limited to the proper definition of human rights. Calling them individualistic rights or tools for the promotion of individualism at the expense of community, harmony and belonging is just plain wrong and betrays a lack of understanding of their true nature. On the other hand, pointing to the collectivist strand in the system of human rights doesn’t imply a value judgment about collectivism vis-à-vis individualism. It’s just one strand among many, and one that should be mentioned in order to counter some common mischaracterizations of human rights.

(By the way, Marx as well was guilty of these mischaracterizations).

More posts in this series are here.

What Are Human Rights? (41): No Right Without a Remedy

Ubi jus ibi remedium: where there is a right, there must be a remedy in case of violation of the right. It’s an old but somewhat misguided principle. If you focus too much on it, you’ll miss the essence of human rights. It has some superficial appeal: when nothing can be done about a rights violation, you might just as well not have a right at all. Conversely, the presence of remedies may deter future wrongdoers.

However, if you dig deeper, you’ll notice some problems. First, the principle is often used to disparage economic human rights: what’s the use of promulgating a right to work, when the presence of work depends on economic circumstances rather than on decisions by judges or on government policy? Compare this to the right to free speech: when a government shuts down a newspaper, a judge can – ideally – order the government to step back. Or compare it to the right to property: when someone steals your stuff, a judge can order to thief to give it back or compensate you financially. If we want to hold on to economic rights – and I think we should – we have to soften the remedy principle.

But there are problems even if we don’t care about economic rights. A remedy is often inadequate or even unavailable. Judges are ineffective or complicit in dictatorships. Do we say that the citizens of those dictatorships do not have rights simply because they don’t have remedies? I don’t think so.

Even if we focus on states with a well-functioning rule of law, there are many rights without remedies. Suppose the police harasses you repeatedly for no good reason. They regularly invade your house and strip search you. As a result, your sense of security and privacy is gone. You live in constant fear and humiliation. You appeal to a judge who manages to stop the police and who awards you financial damages. And yet, you’ll probably be traumatized for the rest of your life. In short, you have no real remedy. The same is even more obvious in the case of a violation of the right to life. There’s obviously no remedy, but that doesn’t make the right to life useless. It’s still a strong moral claim that often has beneficial effects.

Even when real remedies are possible, they may require more than a few words spoken by a judge. Take for instance racial segregation in the U.S. Courts have repeatedly ruled it unconstitutional in the 1950s and 60s, but it took decades of complex laws and policies to diminish its effect. Again, the difference with economic rights tends to disappear. For instance, a healthy environment for job creation in the private economy also requires good and complex government policies maintained over many years.

More posts in this series are here.

What Are Human Rights? (40): Properties & Characteristics of Human Rights

I imagine readers are faced with a “haystack” problem when searching this blog for an overview of properties of human rights. I did write about this many times before, but usually one property at a time, and the respective posts are probably buried underneath a load of other posts (there are literally thousands here). So I thought to myself, why not give a summary, and link to some of those older posts. Here goes.

Human rights are moral claims (and hence part of morality, but only part of), that

  • have a very high if not an absolute priority compared to other moral or non-moral claims (such as claims based on honordisgust, utility etc.)
  • require mandatory (as opposed to discretionary) compliance (more here)
  • are therefore more than mere aspirations (more here)
  • are necessary for the protection and realization of certain fundamental, basic and universal human values and interests (more here)
  • are therefore instrumental principles in the sense that we don’t want them for their own sake; in other words, they are means and not goals (more here and here)
  • are universal: all human beings have certain rights, for no other reason than their humanity and the values attached to humanity; this means that human rights precede and trump considerations of national sovereignty and that national sovereignty therefore does not provide a means to escape human rights obligations (more here)
  • are pre-political: they are a moral order that has a legitimacy and existence preceding contingent social, legal, political, cultural and historical conditions and that can be used to assess and question those conditions (more here)
  • are independent from legal/social/cultural/religious recognition: human beings have human rights even if the laws and customs of their country/group do not recognize or perhaps even violate these rights – although people’s rights are obviously much more secure when they are translated into law and custom (more here and here)
  • are unconditional: people have rights without conditions; respect for rights is not conditional upon fulfillment of duties, status, legal recognition of rights or persons etc. (more here)
  • are inalienable: since rights are owned by human beings because of their humanity, these rights aren’t given and hence can’t be taken away; people still have rights when those rights are violated (more here)
  • are not forfeitable: people can’t give their rights away for the same reason that these rights can’t be taken away; however, people can decide that they don’t want their rights enforced (more here)
  • are equal rights: rights are equal in two meanings of the word; they are equal between people (because all people are equally human) and they are equal to other human rights (there are no “basic” and “less urgent/important” human rights) (more here)
  • are interdependent: different rights need each other, violations of one right most likely lead to violations of other rights (which is one reason why there can’t be a core of “basic” rights) (more here)
  • are limited: rights have to be balanced against each other because respect for one right can imply a violation of another right; balancing means imposing limitations on some rights for the benefit of other rights (or of the rights of others); the fact that there are no basic rights makes this balancing a lot more difficult but not impossible – conflicting rights then have to be balanced taking into account the way in which the two conflicting rights realize the values they are supposed to realize
  • are not politically neutral: not all forms of government can equally respect human rights; there’s a close link between human rights and democracy (more here)
  • are multidimensional: human rights aren’t just a matter between citizens and the state; they are addressed at everyone and impose duties on everyone (which means that they are also transnational and transgenerational) (more here)
  • are simultaneously positive and negative: they always and everywhere require both forbearance and active intervention (although in different degrees according to the circumstances) (more here and here).

And I’ll put in an “etc.”, just to be sure. Related posts are here, here and here.

What Are Human Rights? (39): Human Rights and Human Duties

For some people, there’s too much talk about human rights. They see human rights as a symptom of a typically modern type of moral decay, of a culture of self-importance and egoism, and of an exaggerated sense of entitlement. We want more and more of society and the state, and at the same time we are less willing to contribute. Instead of rights talk, they say, we should promote a sense of duty. Instead of rights declarations and rights in constitutions and treaties, we should have lists of duties and responsibilities, and have the state enforce those duties rather than rights.

You often hear this duty talk when the topic is crime (defendants have “too many rights”) or anti-social behavior (whatever that means), but it seems to be focused mainly on economic human rights. Rather than a right to unemployment benefits people have a duty to work and to support themselves. Rather than a right to very expensive healthcare for everyone, people have a duty to live a healthy life. And so on.

My point here is not to deny the importance of the duties mentioned above, or of a lot of other duties. And neither do I want to claim that human rights talk can’t be frivolous. I merely want to mention a couple of risks that come with duty talk. First of all, there’s the danger of rights becoming dependent on duties. If duties are given too much importance, people will be tempted to claim that your rights can only come after you have proven to be a responsible person. That would be wrong. Rights are unconditional. People have rights, end of story. They don’t have rights because they are responsible citizens respecting their social duties. Even irresponsible citizens, and even criminals have rights.

In addition, duty talk is somewhat superfluous. Duties are inherent in rights. Someone’s rights are everyone else’s duties. (It’s wrong to view respect for rights as the duty of the state only). I don’t have a right to violate your right; I have a duty to respect it. Rights would be meaningless words without such duties. So what’s the added value of emphasizing duties?

More posts in this series are here.

What Are Human Rights? (38): Means or Goals?

The justification of human rights is perhaps the most important problem in human rights theory. Why do we need human rights? Why should people respect human rights? Why are these rights so important? Or are they? I think there are essentially three ways to try to answer these questions.

  • There’s the non-philosophical way of pointing to tradition: you could argue convincingly that human rights or at least the values embedded in human rights have always been a part of the world’s major cultural traditions, implicitly or explicitly. I’ve looked at that option here. However, this approach is fraught with problems. For example, it’s not obvious that you can escape Hume’s naturalistic fallacy: you can’t simply go from “is” to “ought”. It’s not because something is the case that it ought to be the case. Hence, you’ll end up with a pretty weak justification of human rights if you go about it this way. That’s why I’ll focus here on the two other options.
  • Human rights can be justified using a consequentialist approach: rights should be respected because that brings about good consequences, for example respect for rights brings about peace, prosperity and truth.
  • Or they can be justified using a so-called status approach: human beings have certain attributes that make it necessary to ascribe rights to them. For example, a person’s body and mind are hers and hers alone. Therefore, it’s up to her to say what may be done to them. Allowing anyone else to decide would be a grave indignity to her. A right to free speech is the only respectful way to treat people with a mind of their own. Status theories say that rights should be respected, not because of the consequences, but because it is fitting to do so. Rather than focus on the consequences that rights can bring about, rights are constraints on the types of consequences we can pursue. Robert Nozick is a well-known proponent of this approach. The status approach is linked to the tradition of natural rights (certain aspects of human nature make certain rights appropriate) and is evident in the famous Jeffersonian phrase about “men being endowed by their Creator with certain unalienable rights”.

I’ve personally used the consequentialist approach in some previous posts on the justification of human rights:

  • there’s one here focusing on the role of rights in the pursuit of truth
  • here is one about political rights
  • here about free speech
  • here about property rights
  • here on rights in general and
  • here on religious liberty.

(I also discussed consequentialist arguments against human rights, here for instance). One of my posts defending the status approach is here.

The consequentialist justification of human rights views these rights not as goals but merely as means. It’s instrumentalist in the sense that it justifies rights as particularly good instruments or means for the achievement of some other goals (peace, truth, prosperity etc.).

The main disadvantage of this approach is that it only provides a weak and contingent justification. If it turns out that, in certain circumstances, other means are more appropriate for the stated goals, then rights may be violated according to the consequentialist approach. The main disadvantage of the status approach is exactly the opposite: it may prove too much. The status approach makes it difficult if not impossible to limit certain rights or balance rights against each other. It’s hard to see how you can argue for limitations of certain rights or tradeoffs between rights without pointing to certain consequences. Because the status approach grounds human rights in attributes that are fundamental to human beings, it’s likely that limitations of rights have to be seen as attacks on fundamental attributes of human beings, and that’s obviously out of the question. And yet, we limit rights all the time in everyday life. We have to, since different rights are regularly in conflict with each other. Hence, a theory that can’t accommodate this normal feature of morality seems incomplete, to say the least.

A combination of the two approaches is therefore more promising. There’s no reason why human rights can’t be means and goals simultaneously.

More posts in this series are here.

What Are Human Rights? (37): Do Human Rights Point Downwards or Upwards?

A common but, in my opinion, shortsighted view of human rights is the following: human rights are minimal standards. They serve to avoid the terrible rather than to achieve the best. Hence, they point downwards rather than upwards. They are the lower limits of tolerable human conduct, not high aims, ideals or utopian visions. They protect us against the worst things that can happen to us, but they don’t help us to achieve the best things that should happen to us. They limit the depths to which governments and our fellow human beings can sink, but they don’t promote the heights we can reach.

If we limit our understanding of human rights to all this, then it’s difficult to integrate the view that human rights are necessary for the search of truth, and that democracy – a human right – is a way of life. Human rights do in fact – also – point upwards. They set a lower limit of tolerable human conduct, and they also point towards higher possibilities and human perfection. This perfection, of course, they will never deliver like they never deliver full protection from horror, but they help us on the way.

More on the dimensions of human rights is here. More on human rights and progress is here. More on utopian thought is here.

What Are Human Rights? (36): A “Right To Something” Always Includes a “Right Not To”

The claim that a right always includes the inverted right is obvious once you start to look at examples. The right to free speech is a right to speak but also a right not to speak and to remain silent. Evidence for this can be found in practice and in intuition. Many systems of law specifically grant a right to remain silent in certain circumstances such as criminal prosecution. However, such a right isn’t or shouldn’t be limited to specific circumstances. A general right to remain silent is intuitively appealing: the absence of a right not to speak would imply the legitimacy of compelled speech, and compelled speech is problematic in different ways. We don’t like it, and we don’t think it’s meaningful. Examples of compelled speech such as loyalty oaths, flag salutes etc. clearly show how pointless compelled speech can be. Loyalty or promises can’t be compelled, and hence it’s better to let people opt out of them if they so desire. (In the U.S., the West Virginia v. Barnette case created a First Amendment right not to speak precisely in the context of such loyalty oaths).

In addition to the factual and intuitive evidence in favor of a right not to speak, there’s also some logical support: it seems incoherent to have the freedom to speak your mind and then be compelled to say what is not on your mind.

A lot of this reasoning applies to other rights as well. Take the freedom of association. This right also includes the freedom not to associate (the freedom to stay out of groups or to leave groups). In this case, the actual phrasing of the right in human rights documents is explicit – which is not true for the right to free speech. Take article 18 of the Universal Declaration:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief [my emphasis].

Or article 20:

Everyone has the right to freedom of peaceful assembly and association.  No one may be compelled to belong to an association.

There’s also the intuitive appeal of a right not to associate. Absence of such a right would legitimize some forms of compelled association, and compelled association undermines the whole purpose of association, like compelled speech undermines he purpose of speech: people associate because they want to, and they want to because association brings certain benefits – identity, belonging etc. None of those benefits can be produced by compelled association.

However, this is as far as the analogy to free speech goes. Contrary to free speech, the inverted freedom of association seems to allow exclusion. The freedom of an association not to associate with certain persons – e.g. the Boy Scouts of America refusing to associate with a gay scoutsmaster – restricts the right to associate and perhaps even the freedom to associate of the excluded persons, and is often a violation of the right to non-discrimination. Exclusion has a bad ring to it, but I think that’s a pill we have to swallow. Without exclusion rights, association rights don’t mean a thing. If associations can’t decide who to include or exclude, what is the point of having associations? So what we have here, potentially, is a conflict between rights: a conflict between on the one hand the inverted right to free association (inverted because it’s a right not to associate with certain people) and on the other hand the right to associate (and possible also the right to non-discrimination) of the excluded.

And in many cases, there’s no easy way out of such conflicts. Decisions about the supremacy of conflicting rights have to be decided on a case by case basis taking into account the relative damage done by different decisions. In our example, if there are many different “scouts” groups and just one of them wants to exclude gays, then gays have ample opportunities to go elsewhere and the inverted association right of the bigoted scouts group should be upheld. If, on the other hand, exclusion of gays is so widespread that gays have seriously diminished opportunities in life, or if exclusion of gays is limited to scouts groups but this is still a serious limitation of opportunities (if, for example, joining a scouts group is fundamental to human life), then the inverted association right of the excluders should give way.

So these are two rights for which it is clear that they contain their inverted versions. I could make similar arguments for other rights (the right to life includes the right to suicide, the right to privacy includes the right to publicity, the right to property includes the right to live naked in the woods etc.), but I don’t want to force those of you who haven’t already stopped reading to do so now.

That’s because I still have some important general remarks about inverted rights. First, we can only talk about inverted rights for those human rights which do not already take the “not to” form. For example, it doesn’t make sense to say that the right “not to be tortured” or “not to be a slave” includes the inverted version. Second, inverting rights looks a lot like waiving rights, but it’s not quite the same. Waiving a right means that you don’t want others to enforce your right. Inverting a right means that you claim a right not to do what a right allows you to do. In the former case you give up a right, in the latter you claim an additional right.

A final remark: when people claim a “right not to” or when they want to waive their rights, we want to know that they do so freely and that their choice is an informed one. Otherwise we could simply be dealing with a covert form of oppression in which the oppressor has somehow convinced a victim to abandon his or her rights or to claim a right not to do something that annoys the oppressor.

What Are Human Rights? (35): Freedom of Expression is Freedom of What Exactly?

Another way to frame the question in the title of this post is: what falls under the header of “expression”, and what not? Only if something is justifiably called expression can it enjoy the protection of the right to free expression. I’ll argue below that “expression” covers more actions than the ones we intuitively classify under that concept. Hence, freedom of expression protects more than we think it protects.

And yet, it’s not because something is expression that it automatically enjoys protection. Some actions which we readily classify as “expression” are not and should not be protected by freedom of speech. In other words, freedom of expression covers more and at the same time less than we think.

The obvious type of action that is covered by the right to free speech, and the type that represents the large majority of expressive actions, is speaking and writing in day-to-day language. Such actions enjoy a prima facie protection by the right to free speech. Nothing special about that. However, the right also applies to other expressive actions, ones that do not involve speech or writing in ordinary language:

  • some non-linguistic means of expression, such as visual art
  • some forms of protest such as the burning of a draft card, a flag or a cross
  • pornography
  • the display of symbols (e.g. a swastika)
  • etc.

These types of expressive actions can also claim protection in certain circumstances.

So, some things which are not readily identified as speech are nevertheless considered as speech acts and receive some form of protection from the right to free speech.

On the other hand, some actions that are unmistakably speech – such as hate speech, incitement etc. – are often justifiably excluded from the protection of the right to free speech.

Free speech therefore covers at the same time more and less than a cursory examination would conclude. However, the broad definition of speech that expands speech beyond mere linguistic acts does create a problem. Non-linguistic expressive actions are hard to delineate. All actions can include an expressive component, and it’s often difficult to determine when an agent intended to convey a message through her actions. So the concept can become too broad, and we risk, as a result, that freedom of speech covers all actions and becomes indistinguishable from freedom tout court. That can’t be the purpose.

Notwithstanding this problem, it’s obvious that not all linguistic or non-linguistic expressive actions should enjoy protection by the right to free speech. Terrorism is certainly an expressive action, but no one would claim that it should be protected by freedom of speech.

Beside the “freedom of what?” question, there’s another interesting one: “freedom from what?” Usually, freedom of expression, like many other type of freedom, is believed to be primarily or exclusively a freedom from government interference with speech. While that’s an important dimension of freedom, it’s not the only one. Rights have a horizontal as well as a vertical dimension: citizens can also violate each others rights, and hence freedom of expression for example is also a freedom from interference by fellow-citizens. More on the dimensions of human rights is here. More on free speech here.

What Are Human Rights? (34): Different Things

Another way of phrasing the question in the title of this post: how do human rights exist? They can exist in many forms:

  1. 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.
  2. 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.
  3. 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…”).
  4. 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 Rawlstheory 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.
  5. 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.

What Are Human Rights? (33): Something More Than Goals

You can often hear the claim that economic rights such as the right to healthcare, food and work are not really rights but merely desirable goals. A first reply would be that all types of rights, not just economic rights, are also goals. Free speech is just as much a goal as healthcare, food and work. But not all goals are rights, so it’s reasonable to ask if economic rights are really rights. What is a right? It can be different things, but it should, minimally, impose a duty. A duty implies feasibility. Ought implies can. There’s no point imposing duties on people which they are unable to respect.

A typical objection against economic rights is that they impose precisely such duties, duties which are not and will not be feasible in many countries in the world. Imposing a right to healthcare, food and work in Somalia, for instance, is imposing an illusion. It’s just too expensive. Hence, because they impose impossible duties, economic rights can’t really be rights. They are merely goals.

Now, I did argue before that the relative expensiveness of economic rights compared to “freedom” rights is often very much exaggerated. Which is why Somalia and other countries have also failed to secure freedom rights successfully. Part of their lack of success is due to their unwillingness to leave people be – which they could at no expense – but another part is due to their unwillingness and inability to fund the institutions necessary to enforce people’s freedom. Yet, no one claims that these failures turn free speech into a mere goal or aspiration rather than a right.

Furthermore, the international treaties that impose respect for economic rights have taken the cost criticism into account. They often frame economic rights in terms of “progressive realization”. Countries don’t violate the treaties if they can show that they have taken all possible measures to ensure the progressive – as opposed to immediate – realization of economic rights.

If we turn rights into goals, we lose a lot. Goals are a lot weaker in terms of moral force than rights. Those who are without food can no longer demand that something is done, that they are the victims of an injustice, and that they have a right to food. All they can do is ask or beg that a certain social goal, one among probably thousands, is taken a bit more seriously.

Finally, is it really so farcical to impose duties that exceed people’s abilities to comply? Aren’t we doing that all the time? It’s common to view “telling the truth” as a moral duty, a very strong one even. And yet, we all know that this exceeds our abilities to comply. We lie all the time, and if you deny this, you’re lying. The best we can do, morally, is precisely “progressive realization”: trying to lie as little as we can, and less than we’re used to. The same progressive realization rescues economic rights as rights: rather than imposing a duty to realize the goal inherent in the rights, they impose a duty to try to realize that goal.

What Are Human Rights? (32): A General Formulation

You can rephrase the question in the title as follows: “what do human rights have in common?”, or “what is the essence of the idea of human rights?” Michael J. Perry offers a general formulation in The Idea of Human Rights:

[T]here is something about each and every human being, simply as a human being, such that certain choices should be made and certain other choices rejected; in particular, certain things ought not to be done to any human being and certain other things ought to be done for every human being.

I like this formulation because it brings out several key aspects of human rights:

  1. The fact that human rights can be negative or positive: they may demand that we refrain from doing certain things (torture, kill etc.), and they may demand that we do certain things (help, protect etc.). In fact, most human rights are both negative and positive at the same time.
  2. There is indeed “something about human beings” that make human rights necessary and that make them human rights, i.e. rights that belong only to human beings. Human beings value certain things, things that aren’t valued – or are less valued – by other creatures: thinking, identity, belonging, peace, prosperity, freedom and equality. And they need human rights to realize these values. Animals don’t need free speech, not only because they can’t speak (the ability to speak isn’t a sufficient condition to have a right to speak) but also because they don’t need free speech to search for the truth. This doesn’t mean that animals can’t have animal rights, or that certain human rights can’t also be animal rights (for example those rights that protect the value of non-pain, a value that humans share with animals – animals can be tortured just like humans, although probably not always for the same reasons).

More posts in this series are here.

What Are Human Rights? (31): Instrumental and Not Fundamental Moral Principles

It may come as a surprise to regular readers of this blog, but human rights are not fundamental moral principles. That doesn’t mean they are unimportant. On the contrary. There’s a difference between important and fundamental. I wouldn’t be writing this blog if I believed that human rights are unimportant, but nothing written here is incompatible with the claim that they are not fundamental. The place of human rights in morality is at the level of subordinate principles: they are instruments for achieving or realizing other values; values such as peace, wellbeing, prosperity, freedom, equality etc.

The reason why this is the case, is made clear by the lack of meaning and usefulness of the contrary argument. Suppose that human rights are fundamental moral principles. We would then have to adopt some kind of rights deontology or rights utilitarianism:

  • In rights deontology, rights are to be respected in all or most instances (deontology is a type of morality that judges an action based on the action’s adherence to a rule).
  • In rights utilitarianism, the goal is to maximize overall rights protection (utilitarianism is a type of morality that judges an action based on the action’s good consequences).

Both rights deontology and rights utilitarianism demand that rights are protected, not because rights serve some other value, but because rights are the fundamental moral values. Now, this is both meaningless and unhelpful.

  • It’s meaningless because in everyday conversation and thinking, we don’t view rights in this way. I have never seen anyone making a convincing case that people need freedom of speech because freedom of speech is a fundamental value. The common argument is rather that we need that right because it allows us to realize some other values (political freedom, rationality, truth etc.). The claim that a violation of our right to free speech is wrong does not express a fundamental or axiomatic moral principle. It’s the result of complex arguments about the importance of other values and about the ways in which this right protects those other values. (The latter point obviously depends on non-philosophical and empirical claims as well). The opposite claim, that protecting rights has value even if no other value is advanced, has a distinct emptiness about it.
  • Placing rights at the basis of morality is also unhelpful in the sense that it doesn’t tell us what to do in difficult moral cases. In general, we should of course consider human rights as strong rules that we should respect, and we should also arrange our society in such a way that rights protection is maximized. But what should we do when different rights are in conflict with each other and are mutually incompatible? That happens quite often, and neither rights deontology nor rights utilitarianism are of any help when it does. You can only resolve a conflict between rights when there are certain more fundamental values at stake. When two conflicting rights are understood as instrumental values serving the realization of other, more fundamental values, then we can try to ascertain which one of the conflicting rights does a better job. For example, when a tabloid journalist hacks a politician’s cell phone in order to dig up some lurid details about his or her sex life, then one can argue that the politician’s right to privacy should prevail over the journalist’s right to free speech, given the fact that the right to privacy is in this case protecting more important values than the right to free speech. Privacy, intimacy etc. are more important than sensationalism or voyeurism.

Does all this mean that human rights can and should be ignored or violated if doing so maximizes the values that they normally protect? Yes. Rights are not absolute. However, because it’s generally not the case that ignoring or violating human rights maximizes the values that they normally protect, and because rights normally do a very good job protecting those values, it is best not to cast them aside every time a modest or marginal improvement in fundamental values can perhaps be achieved by doing so. Otherwise we would demote rights and decrease their importance in the general culture. And that would be detrimental to our fundamental values in the long run. Hence, it’s probably not a good idea to argue the case that human rights are instrumental rather than fundamental. If the general public is convinced that they are fundamental, then that is beneficial for our really fundamental values. Hence, maybe you shouldn’t have read this post.

Hence, there is a consequentialism inherent in rights, but it’s not a consequentialism of rights – we should arrange society in such a way that certain values are promoted, not that rights are promoted. Yet, arranging society in such a way that rights are promoted is a good proxy for a society in which values are promoted.

What Are Human Rights? (30): Three Views on Human Rights

1.

The standard view of human rights is that they are intended as regulators of conflicting norms and practices. And, indeed, they seem quite useless and out of place in settings in which people agree, hold the same religious convictions and aren’t intent on attacking each others’ lives and possessions.

“Regulators” in this sense doesn’t mean that rights solve conflicts between norms and practices. They can’t do that because then they would have to change those norms and practices, and they don’t. What they do is pacify and civilize conflicts: they force conflicting parties to extend some measure of respect to the opposing norm or practice, and to refrain from physical or legal attacks, violence and suppression. For example, when different forms of speech come into conflict with each other, neither side in the conflict has a right to suppress the speech of the other side or to violently attack the other speakers.

2.

A somewhat less simplistic view of human rights, but also a less common one, is that these rights don’t just regulate conflict but actively promote it. By taking the sting out of conflict, one obviously encourages conflict. Usually, when an activity becomes less risky, it becomes more common.

Why would there be a need to encourage conflict? One reason has to do with the notion of the marketplace of ideas: only an idea that has survived the onslaught of a large number of opposing arguments can be a good idea.

3.

And then there’s another, even more sophisticated – some say perverted – view of human rights, one that sees beyond the conflicts that these rights are supposed to regulate and/or promote, and that focuses on the role of rights in providing the prerequisites for the appearance and development of conflicting norms and practices. Without this understanding of rights it’s difficult to make sense of rights such as the right to healthcare, the right to a certain standard of living and the right to education. Those are all rights that don’t regulate conflict but instead allow people to acquire and develop norms and practices.

What Are Human Rights? (29): Negative or Positive Human Rights?

Take the right to free speech for instance. Negatively, it means that constraints on speech should be removed as much as possible. Legal people are used to view this and other rights in such a negative sense, because courts and judges are well-placed to remove constraints: they can invalidate or refuse to apply laws and policies that constrain rights such as speech rights; they can punish or fine people that constrain rights etc.

However, this legal interpretation of rights is insufficient. I’ve often argued that human rights are positive as well as negative, in the sense that they don’t merely require the removal of constraints but also the provision of prerequisites. Take again the right to free speech: we can’t say that anyone who does not suffer constraints on her speech has an effective right to free speech. While no one or no law may prohibit or stop a person from speaking, her poverty, lack of education etc. can make it very hard for her to speak effectively. I personally, for instance, find it much easier to blog when I’m able to read inspiring material. My freedom of speech, as I exercise it on this blog, would be non-existing if I wasn’t part of a global conversation about human rights. I would still have the negative right to speak, but I wouldn’t have anything to speak about. And the freedom to do what you like without impediments doesn’t make sense if you don’t have anything to do.

There may be a difference in degree: some rights, in most circumstances, are perhaps more positive than negative or vice versa. I guess the right to food is most often a positive right in the sense that it requires provision rather than forbearance. Although even in this example, we find that famines aren’t usually caused by the absence or non-provision of food but by constraints on the effective distribution of food.

What Are Human Rights? (28): Or, in Other Words: When is Something a Human Right?

Human rights are exceptional, by definition. Not all rights or rules or aspirations can be human rights. A human right is a special kind of rule, right or aspiration, namely one that is particularly important. And if all rules or rights become human rights, or if all values, desires or possible improvements in people’s life are called “human rights”, then human rights are no longer important, because if everything is important, nothing is. Hence, the existence and utility of human rights depends on strong restrictions on the set of human rights.

However, that raises the obvious question: what are those restrictions, and how do we decide which rules or aspirations are properly called a human right, and which are not? When does a particular rule or aspiration become so important that it becomes a right? We can’t just simply claim that the “basic aspirations” or “basic values” of humanity, or those things that are especially valuable or necessary for a “real” human life should be protected by human rights. First, it will never be clear or uncontroversial what those basic things are, and secondly, it’s easy to come up with basic or important things that none of us would claim are human rights: love, kindness, longevity etc. Some things that are extremely valuable shouldn’t be human rights, and it’s often very unclear how and when to make – or not to make – the leap from “value” to “right”.

So it’s not just the importance of certain rules or aspirations that turn them into a human right. The fact that we all want our children to love us and that this kind of love is extremely important for human life is not enough to generate a right to filial love. So what other criteria besides importance should determine whether a rule or aspiration becomes a human right?

One could argue that something is a human right if the background aspiration or rule is extremely important, and if it is necessary, desirable and practically feasible to turn this rule or aspiration into a working human right. Remember that human rights should also and always be legal rights, so as to distinguish them from purely moral claims and make them enforceable. Among other things, it’s not practically feasible to have courts enforce a right to filial love (although there have been attempts). And it’s certainly not desirable. On the other hand, it’s relatively obvious that our aspiration to free speech, for example, is best protected when we have a legal right, courts and the like to help us protect this aspiration.

A related post is here. More on the link between human rights and values is here.

What Are Human Rights? (27): What Does It Mean To Have Rights?

When thinking about what it means to have a right it’s sometimes useful to replace the word “right” with another and similar word. Let’s review a few of those words and see how far they get us. You’ll notice immediately that those words only describe part of what we usually understand by the word “right”. Hence, they’ll allow us to clarify only part of the meaning of the phrase “to have a right”. Perhaps taken together they’ll provide an overall definition. (Some of the definitions are based on the famous work by Hohfeld).

Rights as privileges

Formally this can be stated as follows:

A has a privilege to do X if A doesn’t have a duty not to do X.
A has a privilege not to do Y if A doesn’t have a duty to do Y.

For example, in the U.S. I have the privilege to speak my mind, because I don’t have a duty to keep silent. Or, I have the privilege not to vote for our Dear Leader because I don’t have a duty to do so.

Rights as permissions

Similarly, one could say that rights are permissions. That sounds somewhat weaker than “privilege” but formally, this way of talking about rights has the same structure as “rights as privileges”:

A has a permission to do X if A doesn’t have a duty not to do X etc.

It’s about what a rights bearer is at liberty to do, not what he has to do or shouldn’t do. Hence, rights as liberties is again another way of saying the same thing. The fact that I have the privilege, the permission or the freedom to speak my mind doesn’t imply that I must speak my mind.

Rights as claims

A more relational understanding of rights focuses on the claims we may have on others. Having a right then means having a claim on someone.

A has a claim that B does X if B has a duty to A to do X.
A has a claim that B doesn’t do Y if B has a duty to A not to do Y.

For example, I have a claim that my employer pays me a fair wage because my employer has a duty to do that (see article 23 of the UDHR). I also have a claim that he doesn’t impose slave-like or dangerous working conditions on me because he has a duty not to do that.

Usually, and at least in the case of human rights, I have such claims vis-à-vis every other human being.

Rights as immunities

This is similar to rights as claims but it’s a bit stronger.

A has an immunity if B doesn’t have the legal, moral or political ability or power to do X to A.

For example, I have immunity against self-incrimination because a judge does not have the power to force me to testify against myself.

Rights as limits

Again, similar if not identical to immunities:

A has a right to X if B doesn’t have the legal, moral or political ability or power to interfere with A doing X.

For example, I have to right to practice my religion because no one else is allowed to interfere with me practicing my religion.

Rights as provisions

Having a right can mean more than the ability to limit interference it can also mean being entitled to the provision of some goods or services.

A has a right to X if B has the legal, moral or political duty to provide A with X.

For example, I have the right to an amount of food that guarantees my decent survival. The state, among others, has a duty to provide this food if I can’t acquire it independently. But also so-called non-interference rights or negative rights fall under this heading: I have a right to be protected by Courts and the police force – to be provided with protection – if people impose a religion on me, harm my bodily integrity etc.

Rights as properties

You could say that all rights are in essence property rights. We have a right to have rights; our rights are our property. In the words of John Stuart Mill:

When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it. … To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of. (source)

Formally:

A has a right to X if society has a duty to protect A’s possession of X.

Again, very similar to the formulation of rights as provisions. For example, I have a right to free speech if I can call on judges and Courts to assist me in my struggle against those who want to take this right away from me.

Rights as sovereignty

Very similar to the notions of rights as claims, immunities, limits and properties is the notion of rights as sovereignty. My right to freedom of opinion or my right to property make me a small scale sovereign over my mind or my possessions, in the sense that others aren’t allowed to interfere, invade, dispossess or modify. All these notions of rights focus on the rights bearer’s ability to control whether others must or must not act in certain ways.

Rights as interests

Conversely, rights as interests focus on what rights do to the rights bearer. Rights serve to further the rights bearer’s interests. People have rights because rights make them better off. What these rights imply for others is of secondary importance. Formally:

A has a right to X if X makes A better off.

Rights as abilities

Another way to focus on the rights bearer rather than the duty bearer is to view rights as abilities. That allows us to see that rights as liberties, privileges or permissions only describe part of what we understand by rights. Indeed, I have a right if I have the freedom, privilege or permission to act in a certain way. And rights as claims, immunities and limits protect me against others who would interfere with my freedom, privilege or permission to act in a certain way. And yet I can be free to do X because 1) I’m free from a duty not to do X and 2) I’m free from the interference of others, but at the same time I may be unable to do X. For example, I may have the permission and freedom to practice whatever religion I choose, and others don’t interfere, but I lack the education or mental capacities to choose and practice a religion. Rights as abilities would then provide me with the necessary education, rather than only the freedom, privilege, permission or limits on interference.

Rights as trumps

Following Ronald Dworkin, we can view rights as trumps. Rights are norms with a special force. They provide particularly weighty reasons to do or not to do something, reasons that are weighty enough to override other reasons or concerns. Rights give reasons to treat people in certain ways or permit them to act in certain ways, even if certain other goals or objectives would be better served by violating their rights. Within the system of rights, it’s possible to give some rights a higher trump value and hence a higher priority than others, perhaps depending on the circumstances (meaning that one right only trumps another when certain conditions are met, and not systematically).

Formally:

A has a right to X if X overrides all other concerns.

Only if we combine all these different definitions of rights can we perhaps have an overall understanding of them.

What Are Human Rights? (26): The “Human” Part of Human Rights

Why do we need the qualifier “human” when we talk about human rights? Why is the word “rights” not enough? The obvious reason is that we want to broaden the class of protected persons to cover the whole of humanity. Traditionally, rights were accorded only to specific groups of persons, e.g. the nobility, guilds, citizens etc. The essence of human rights is their universality, which means that they are rights that belong to human beings whatever group they are part of and wherever they happen to live. People have certain rights for the simple reason that they are human; there’s no need for any other reason such as group affiliation, nationality, form of government, legal system etc.

Human rights can thus be seen as the end state of a long expansionary evolution during which ever broader groups of people acquired certain rights. However, the inclusiveness of human rights has often been countered by exclusionary movements. If some want to include a maximum number of people under the protection of rights, others have an interest in the continuation of rights violations. The latter have two options: challenge human rights directly (e.g. by claiming that they are western rights, godless rights etc.), or take the more indirect route: maintain the notion of human rights but at the same time exclude some categories of people from humanity.

Many rights violations are explicitly or implicitly justified by reference to an absence of humanity on the part of the targets of those violations. The terror inflicted by Al-Qaida, the televised beheadings of innocent hostages etc. proves that these people are less than human. They are “animals” and can’t therefore claim that their “human” rights are respected when they are executed extra-judicially, eliminated by way of targeted killing, tortured, or arrested indefinitely in Guantanamo. Perhaps people don’t mean it literally when they say that terrorists are animals. Perhaps they do accept that they are human – they look human after all – but at least they are lesser humans, and hence not deserving the same rights as the rest of humanity. Perhaps they are merely barbarians, a separate and inferior class of humans.

The same attitude is evident in certain non-consequentialist justifications of capital punishment: the people who are executed are “the worst of the worst”, “animals” that have proven their inhumanity by way of their crimes. Also the native populations of colonized territories were considered to be non-human or at least lesser humans. There was a time when westerners weren’t sure that these people had a “soul”, a classic if currently somewhat outmoded distinguishing mark of humans. For those who believed they didn’t have a soul, their enslavement and murder was as acceptable as keeping and slaughtering animals. It took a Papal Bull to attempt to reign in the more extreme colonizers, without much success by the way.

This raises the fundamental question: what is “human”, what does it mean to be human, what is humanity? Respect for human rights depends on the type of answer we can agree on. Ideally, we would like to have a broad definition that makes it difficult if not impossible to exclude large portions of homo sapiens from the category of humanity and to violate their rights as a result of this exclusion. Claiming that someone is human because of his or her “good behavior”, e.g. non-terrorist and non-murderous behavior, is not the right way forward. “Good behavior” is a moralistic notion that can be defined in lots of different ways. Hence we potentially exclude the large majority if not the totality of people from humanity if we go along that road.

On the other hand, a non-moralistic definition, for instance a naturalistic or biological one, isn’t necessarily better. Given the way in which we treat animals, it’s probably best to avoid a definition of humanity as a distinct animal species (in Plato’s phrase, the “featherless biped“). An animal species, however distinct from other species, still consists of animals that are in some sense like other animals belonging to other species. We don’t have moral rules that tell us to treat cats differently from dogs, so a definition of humanity as a distinct animal species is unlikely to yield moral rules that tell us to treat humans differently from cats or dogs.

However, biology can be a useful element in the definition of humanity since it’s biology that justifies some human rights. Some of the biological vulnerabilities that are distinctive of us featherless bipeds, and perhaps even some of the vulnerabilities we share with some non-human species (e.g. the ability to suffer) can be seen as reasons to respect certain human rights. (Although in the latter case the price to pay would be to grant the same rights to non-human species that have the same vulnerabilities; those human rights would then no longer be strictly “human” rights. But perhaps that’s a price we should be willing to pay).

However, for the reasons given above biology is hardly sufficient for the definition of humanity. I guess we also don’t want to use the concept of “soul” to define humanity, given its association with religion. Ideally, we want to be persuasive to the non-religious violators of human rights as well, and those won’t be swayed by soul talk (perhaps they won’t be swayed at all but at least we can try). “Human nature” is a discredited concept, dignity is excessively vague, and moral agency seems to be less typical of humanity than we once believed.

So what can we use? I’ve argued elsewhere that some values that are typical of and in certain cases exclusive to human beings – or homo sapiens – can be seen as adequate justifications of human rights, since these rights serve the realization of those values (examples of those values are the importance of thinking, of social and cultural life, of religion, of prosperity, peace etc.). Excluding certain specimen of homo sapiens from the category of humanity or “real humanity” is then an attack on values that are shared by all specimens; rights violators then unwillingly attack their own values.

However, one problem remains. People’s rights aren’t necessarily safe, not even if we can settle the question of humanity and define the concept in such a way that it becomes difficult to exclude people from humanity. Humanity itself can be the problem. If human rights can be violated when a person’s humanity is denied, it’s also the case that a person who’s merely human runs the same risk. Hannah Arendt has often cited the plight of stateless persons before and after WWII, people whose nationality had been taken away from them by their racist, fascist or xenophobic governments, and who therefore only had their “humanity” left. In the best of cases, they were refugees in foreign countries where their rights were far from safe given that many countries only protected the rights of their own citizens.

The notion of humanity inherent in human rights is also incompatible with widespread feelings of partiality: most of us care more for our family and friends than for the rest of humanity, and some of us also care more for fellow-citizens. Somehow that’s inevitable: not only is it psychologically impossible to care for all the misery in the world – there’s simply too much of it – but it also seems morally right to care more for those who are closer.

In all those examples, we see that human rights have to come back to partiality. Inherent in human rights is universal inclusiveness, but at the same time we see that human rights can only be adequately protected when they are at the same time rights of very specific subgroups of humans: citizens, soldiers, family etc.

More on dehumanization and universality.

What Are Human Rights? (25): Some Common Human Rights Misconceptions

Here’s a short and unfortunately incomplete list of common misconceptions about human rights. I distinguish between theoretical misconceptions (mistakes about what human rights are or what they mean) and factual or historical misconceptions. The former are obviously the most harmful, and I’ll start with those.

Some theoretical misconceptions about human rights

  • It’s often claimed that there are “three generations of rights“: traditional liberty rights, social-economic rights, and cultural rights. Each new generation has “followed” the other. That’s clearly wrong. So-called “poverty rights” are as old as freedom rights. For example, among the rights listed in the revolutionary Constitution of 1791 in France, was this:

    A general establishment for public relief shall be created and organized to raise foundlings, relieve the infirm poor, and furnish work for the able-bodied poor who have been unable to procure it for themselves. (source)

    This misconception is often used to discredit the more “recent” rights as being new inventions or “fads” that inflate away the meaning of the word “rights”. This misconception is typical of some American audiences.

  • Equally common is the claim that human rights are anti-democratic. Indeed, human rights, as they are translated in the constitutions of most modern democracies, are specifically – but not exclusively – aimed at the protection of the interests of the minority against the tyranny of the majority. However, that doesn’t make them anti-democratic. Democracy needs human rights, and is much more than simple majority rule.
  • Thirdly, the notion that there are negative and positive rights, that only the former are “real” rights and that the latter are too costly on society and require limitations on the freedom of citizens, is also wrong. All types of rights require both forbearance and active protection, and all rights are costly. Depending on the circumstances, what are often called negative rights may be more costly than positive rights.
  • And, finally, there’s this notion that some human rights are basic rights. If you claim that some human rights are more basic, more important and more urgent than other rights, then you can’t possibly take account of the interdependence of all human rights. If a so-called basic human right is dependent on another, non-basic right – and that’s easy to show – then it’s no longer a basic right.

Some factual misconceptions about human rights

And here are also some factual or historical misconceptions about human rights. These are of lesser importance, but fun to mention:

  • There is no evidence that the torture device known as “iron maiden” was ever used for torture. It’s often depicted in stories about medieval torture, but it looks like it was pieced together in the 18th century from several artifacts found in museums. (source)
  • A “fatwa” is a non-binding legal opinion issued by an Islamic scholar under Islamic law, not an official death sentence. The popular misconception probably stems from the fatwa issued by Ayatollah Ruhollah Khomeini of Iran in 1989 regarding the author Salman Rushdie, who he stated deserved a death sentence for blasphemy. (source)
  • The word “jihad” does not necessarily mean “holy war”. Literally, the word in Arabic means “struggle”. While there is such a thing as “jihad bil saif”, or “jihad by the sword“, many modern Islamic scholars usually say that it implies an effort or struggle of a spiritual kind. (source)
  • Voltaire never uttered the phrase: “I disapprove of what you say, but I will defend to the death your right to say it.” The line comes from The Friends of Voltaire (1907) by Evelyn Beatrice Hall. It resembles the actual line “Think for yourselves and let others enjoy the privilege to do so too” from Voltaire’s Essay on Tolerance. (source)
  • Likewise, Niccolò Machiavelli didn’t write “The ends justify the means.” A more literal translation is “One must consider the final result”, a disappointingly sensible statement. (source)
  • And Stalin probably never said that “the death of one man is a tragedy, and the death of millions is a statistic”. (source)
  • Female genital mutilation is not required by Islam. And neither is the veil (the Quran merely requires “modest dress“).
  • China does not dismiss international human rights or the universality of human rights. It has ratified many of the major human rights treaties, although of course it violates human rights in practice, as most if not all other countries.

What Are Human Rights? (24): Absolute Rights?

One of the great puzzles in human rights theory is the possible existence of absolute rights. It’s commonly accepted that most if not all human rights are “relative” in the sense that they can be limited if their exercise results in harm done to other rights or to the rights of others. Freedom of speech for example doesn’t offer “absolute” protection for all kinds or instances of speech (see here).

If there are any human rights that do offer absolute protection without exception, the right to life, the right not to be tortured and the right not to suffer slavery would be good candidates. Whereas it seems quite reasonable to silence someone when he or she incites violence or hatred, it’s much harder to imagine cases in which it’s reasonable to kill, torture or enslave someone. I’ll focus here on the right to life.

How would you go about justifying the absolute nature of that right? First, you could claim that life is the supreme value. Life is indeed supreme in one sense of the word: it’s lexically prior as they say. It comes first. You can have life without freedom or equality, but not vice versa. (Of course, there are also other more or less promising ways to argue for life’s supremacy in the universe of moral values. I won’t go there now, and neither will I point to the fact that people often sacrifice their lives for a higher purpose. Let’s just assume for the sake of argument that the lexical priority of life suffices, in general, to ground life’s supremacy in the system of values).

If life is the supreme value, that means that no life can be sacrificed for an inferior value. You can’t go about killing poor or handicapped people for the sake of aggregate wellbeing. And neither can you execute criminals in an effort to deter future attacks on people’s security rights.

So life is then the supreme value in the sense that it can’t simply be traded against another inferior value. That already makes a lot of potential limitations of the right to life unacceptable, and the right to life therefore moves a significant distance towards absoluteness. However, if life is the supreme value, it’s still theoretically possible to trade the lives of a few for the lives of many others. So not life as such, as an aggregate or abstract concept needs to be the supreme value, but individual life. If individual life is the supreme value, the lives of some can’t be put on a scale to see if their sacrifice could protect a higher number of other lives. Robert Nozick gives the following example to make this point salient:

A mob rampaging through a part of town killing and burning will violate the rights of those living there. Therefore, someone might try to justify his punishing [i.e. killing] another he knows to be innocent of a crime that enraged a mob, on the grounds that punishing this innocent person would help to avoid even greater violations of rights by others, and so would lead to a minimum weighted score for rights violations in the society. Robert Nozick

So, if you accept the argument made so far, does this mean that you have established the absolute nature of the right to life and that this right therefore can never be limited? It would seem so. If life is the supreme value, it’s hard to find a reason to limit it, since this reason would then have to be a superior value. And if individual life is the supreme value, you can’t play a numbers game to conclude that the sacrifice of some is necessary in order to save a higher number of other lives.

However, categorical claims like this always seem to me to make things too easy. Something else is necessary. Take four cases in which lives are commonly sacrificed without universal or often even widespread condemnation:

  • individual self-defense
  • war as national self-defense
  • capital punishment and
  • the murder of a terrorist (and perhaps his hostages) about to kill many others (e.g. the shooting down of a commercial plane hijacked by terrorists and about to be used as a weapon).

In all these cases, the lives of some are sacrificed for the lives of others (assuming that capital punishment has a deterrent effect, which is probably not the case). If the right to life is really absolute, none of these actions would be morally or legally acceptable. In order to make them acceptable, there has to be something more than a mere quantitative benefit in terms of numbers of lives saved. I believe the sacrifice of life is acceptable if in doing so one doesn’t violate these three rules:

  • we should only sacrifice life in order to save life, and not in order to promote other values, and
  • we shouldn’t treat other people as means, and
  • we shouldn’t diminish the value of life.

In the case of one of the four actions cited above, namely capital punishment, we do treat other people as means and we diminish the value of life. Murderers are used as instruments to frighten future murderers. Capital punishment is supposedly intended to further respect for life, but in fact normalizes murder. (See here for a more detailed treatment of this issue). In the three other cases, we don’t necessarily use people as means or diminish the value of life. Hence these case can be acceptable limitations of the right to life.

So the right to life is only quasi-absolute: limitations are possible but extremely rare because a number of very demanding conditions have to be met:

  • you can’t kill for the promotion of values different from life
  • you can’t generally count lives and kill people if thereby you can save more lives
  • and if you do want to kill in order to save lives, you have to do it in a manner that doesn’t instrumentalize human beings or diminishes the value of life.

What Are Human Rights? (23): Alienable Rights?

One of the most commonly cited characteristics of human rights is their inalienability. Human rights aren’t granted to people by a sovereign, a law or a tradition, and hence can’t be taken away. They can of course be violated, but violating rights doesn’t mean taking them away. If you’re tortured you still have a right not to be tortured. In a sense, you only have rights – or, in other words, your rights are only real – when they are violated. When rights aren’t violated they move to the background, as self-evident facts not even worthy of being mentioned.

The question here is not whether rights can or cannot be taken away, but whether people can give them away. I think people can’t give away their rights – people are human and hence they have certain rights – but what they can do is waive their rights, meaning that they insist that they don’t want others or the state to intervene in order to enforce respect for their rights. If someone wants to sell herself into slavery, submit herself to cruel treatment, sell her organs, let herself be cannibalized or used in a dwarf-throwing competition, then that person should be free to do so, even if it means that her rights are violated. If those rights violations are her free, conscious and informed choice, we’ll have to respect that choice. She still has her rights but chooses to allow violations of her rights.

Rights are important because they are important to people. They aren’t important as such. If certain people no longer deem them important, then they are no longer important for them. We can’t force people to have their rights respected. That would be a lack of respect for people’s moral autonomy, their dignity and freedom, even if their choices imply giving up their dignity and freedom.

The assumption here is of course that people have a real choice in the matter. If they are forced in some way to renounce their rights, then society and the state still have a duty and a right to intervene in order to enforce respect for people’s rights, even if these people explicitly state that they don’t want this intervention. A masochist who freely chooses to be a masochist – and isn’t suffering from a mental illness or from sadistic pressure – should be free to have her rights violated. A dwarf or a prostitute who has no other means of income than dwarf-throwing or commercial sex respectively is clearly forced and didn’t freely choose to have her rights violated, in which case society has a right to intervene, even if that person opposes such intervention. But of course she will only oppose the intervention if it is merely a prohibition: if the state merely prohibits dwarf-throwing or commercial sex it will make things worse. The person in question loses her income on top of her rights and dignity. Hence, intervention should also mean the provision of an alternative income not implying rights violations. Lack of income is also a rights violation, and you can’t solve one rights violation by violating another right. You can’t free someone from sexual slavery by taking away her income.

The obvious difficulty here is to ascertain whether people’s renunciation of their rights is a free choice.

What Are Human Rights? (22): Part of the Rule of Law

The claim here is not the trivial one that human rights depend on the rule of law because they can’t be enforced without it. The more interesting question is the opposite one: whether there can be a rule of law without human rights. Or, in other words, is the rule of law a necessary but not a sufficient condition for human rights?

At first sight, the answer to both questions would be “yes”. Indeed, the law can be anything, and as long as it “rules” in some way – i.e. as long as the laws are consistently enforced and not superseded by frivolous and arbitrary commands of men – one could claim that there is some sort of “rule of law”, even if the laws in question violate human rights. Civilizations had the rule of law long before the concept of human rights even existed (the Roman Empire may be an example).

Joseph Raz has famously claimed that

the law may, for example, institute slavery without violating the rule of law. (source)

Nazi Germany was also very much a law based society. (See here for example). Indeed, it can be plausibly claimed that strong and authoritarian states are better able to impose rules. That would lead to an incompatibility between human rights and the rule of law.

The fact that many if not most dictatorships make a mockery of the rule of law and of the law itself, and govern in a totally arbitrary way based on the whims of a few men rather than laws and rules, doesn’t exclude the possibility that some dictatorships respect the rule of law, and that the rule of law can indeed be the rule of very bad law, viewed from the perspective of human rights. A prima facie conclusion has to be that dictatorships can respect the rule of law and that regimes based on human rights can inhibit the rule of law: privacy protection, rules on the determination of criminal guilt etc. can make the rule of law more difficult. Authoritarian regimes can easily lift the veil of privacy in order to check for violations of the law, and are not at risk of freeing guilty people because of the presumption of innocence and the burden of proof.

The rule of law, viewed in this manner, is a purely formal concept devoid of substance: as long as the laws “rule”, we have a rule of law, no matter what the substance of those laws may be. Laws are then viewed solely as rules that guide conduct, but the direction in which they guide is immaterial. The rule of law, according to this view, should not be confused with the rule of the right law. The rule of law as a concept deals not with the content of the laws but with the way in which they are enforced and formulated.

That last word is important: the rule of law should logically be more than a system of governance in which rules are imposed by force. Imposing rules by way of force can in itself not be viewed as a system of the rule of law. It would be far-fetched to claim, for example, that a government using force to impose completely arbitrary rules that change every day respects the rule of law. The rules in question have to be formulated in a certain way; there have to be rules of legislation in order to have a rule of law.

These rules usually include the following:

  • Laws should not be imposed retroactively: the rule of law implies respect for the laws, and citizens can’t be expected to respect laws if they are imposed retroactively.
  • Laws should be made public, for the same reason.
  • Laws should be relatively permanent, clear and intelligible, again for the same reason.
  • Laws should strive to be general rules applicable to everyone, rather than commands directed at certain persons or groups; the reason for this rule of legislation is the differentiation between rule of law and rule of man.
  • Laws should not contradict each other, again for reasons of respect.

These rules of legislation differentiate laws and the rule of law from an arbitrary set of rules imposed by force. The rules of legislation are formal and don’t, at first, impose content on the specific laws generated by these rules. However, once you take a closer look at these rules of legislation, it becomes increasingly difficult to maintain that the rule of law is a contentless concept that allows the law to be virtually anything, even abject oppression. Some of the values inherent in the rules of legislation are also inherent in human rights: publicity and equality for example.

The rules of legislation also create another link to human rights: they assume free will. If rules can’t be secret or can’t be applied retroactively it’s because we want to give people the choice to change their behavior so that it complies with the law. Secret and retroactive laws are impossible according to the rules of legislation, and hence also according to the rule of law, because they are an affront to freedom. (See the work of Lon L. Fuller for a more detailed version of this argument).

Hence, freedom is an important part of the rule of law, just like publicity and equality. So it would be strange to claim that a regime respects the rule of law if its laws violate people’s freedom, equality and public activity (such as speech). That would have to be a diminished kind of rule of law. Maybe the regime in question does respect the rules of legislation and does more than impose any arbitrary set of rules by way of force. But if it does so, it sets in motion a dynamic that will ultimately lead to freedom, equality and publicity because it uses these values in its legislation (although not in its laws). Violations of human rights are initially consistent with the rule of law – correctly understood as more than any arbitrary set of rules imposed by force – but not over time, since the dynamic of the rules of legislation uses values that are likely to infuse the laws themselves rather than merely the rules of legislation. And these values will direct the laws towards human rights since they are the same as the values inherent in human rights.

For example, if you have a law that imposes slavery, this law may initially have been created with respect for the rules of legislation (for instance, it may be a public law that doesn’t criminalize behavior that took place before the publication of the law). But since these rules imply the equality and freedom of all citizens, the law in question will ultimately come to be seen as inconsistent with the system of legislation. Over time, the rule of law will become the rule of the right law.

What Are Human Rights? (21): Dimensions of Human Rights

It’s common to believe that human rights are rights that protect us against the state. Nothing wrong there, except that it’s a gross simplification. Human rights aren’t one-dimensional. For example, there’s a difference between the vertical and horizontal dimensions of human rights: the former one describing the way rights regulate our relationship with our state/government, and the latter one pointing to the fact that it isn’t necessarily the state that violates our rights: our fellow-citizens can do the same, as can citizens of other countries. If rights had only a vertical dimension, it would be difficult, for example, to explain the mayhem caused by so-called failed states in terms of human rights violations.

With a bit of imagination, we can add a diagonal dimension: rights claims aren’t addressed only at the state and fellow human beings; corporations, cultures, associations and other groups can also violate our rights (think of corporate social responsibility, apostasy etc.). Since these entities are somewhere on a level between the levels of persons and the state, we can call this dimension diagonal.

To make things complete, we have to add a final dimension. Human rights are not bilateral, such as the rights created by a marriage contract or a commercial contract. They are omni-lateral, meaning that they are claims directed at all entities within the previous dimensions: every other human being, every state and every intermediary entity can violate our rights. That is what we mean when we say that rights are rights erga omnes.

If we put these dimensions together, we can present it graphically: every human being is situated in the center of a sphere, and the radius, wherever on the surface of the sphere it points, indicates a human rights claim.

What Are Human Rights? (20): Universal Rights

Legally and morally, human rights are universal norms and rules. Almost all countries in the world have accepted international treaties that translate human rights into law, or have accepted membership of international institutions which proclaim to respect human rights or work towards the realization of human rights (such as the UN). Moreover, most if not all national constitutions proclaim human rights to be part of the country’s highest law. Even North-Korea recently changed its constitution in this sense.

The example of North-Korea makes it obvious that legal universality isn’t the same thing as universality tout court. There are in fact three types of universality – legal, moral and factual universality: universal acceptance of legal rules, universal acceptance of moral rules, and universal respect for legal/moral rules. Ultimately, it’s the last one that counts, of course. These three types don’t require each other, but the last one obviously benefits from the presence of the first two:

  • Legal universality. Legal consensus doesn’t require moral or factual universality. Countries can adopt legal rules for other reasons than moral conviction, and legal rules are – by definition I would say, otherwise we wouldn’t need any legal rules – regularly violated.
  • Moral universality: there’s moral universality when human rights are part of the “morality of the world” (or Weltethos), or – in other words – are accepted as peremptory moral rules by all of the world’s cultures, nations, subcultures, religions etc. This doesn’t require legal universality. You can have moral consensus and still have a rogue dictator somewhere who has refused to sign a treaty. Nor does it require factual universality, again because you don’t need a rule – legal or moral – for something that is a fact.
  • Factual universality: human rights are not just norms but facts; there are no human rights violations. Again, this doesn’t require legal or moral universality, since actual respect for human rights may have other causes than legal or moral pressure. However, it’s fair to say that without legal and  – especially – moral universality, factual universality is highly unlikely (although many would say that it’s utopian in any case).

Notwithstanding the prominence of human rights talk in almost all domains of life and all corners of the world, there is no moral universality. There are certain ideologies and schools of thought (yes, there’s a difference) that argue against the universal value of human rights. Either they argue against human rights in general, or – more commonly – they argue against certain elements of the system of human rights: for instance, they may reject certain types of human rights (e.g. economic rights), or they may reject the “absoluteness” of human rights and accept that certain human rights can be bracketed in certain circumstances when higher values are in danger (e.g. the use of torture in emergencies). Examples of arguments against the universality of the entire system of human rights can be found in the theory called “cultural relativism“, or in the view that economic development has priority over human rights.

What Are Human Rights? (19): Universal Rights

What is meant by the expression “universality of human rights“? Just simply that these rights belong to all members of humanity, all members of the human family, without any distinctions. They are equal rights, not just the rights of a particular class, race, gender, nation or religion. Human beings have these rights, not because they belong to a certain group, or because they have certain beliefs of convictions, or because they fulfil certain conditions or whatever. They have them for no other reason than because they are human. This is, of course, obvious from the word “human” in “human rights”.

Why is it important to mention this? Because it’s contested. Some say that gays shouldn’t have the right to marry, even though this right is included in the Universal Declaration, a Declaration which explicitly states that

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind.

People of color, members of other ethnic groups or members of other religions are regularly treated as inferiors (or worse). Women often have less legal rights than men. And the list can go on and on.

If you oppose this, and believe that all people should be treated equally and should be able to enjoy the same rights as everyone else, then you in fact espouse the ideal of the universality of human rights. (Equality, in the sense of equal rights, is a concept that is closely related if not identical to the concept of universality of rights).

However, how would you defend this position against those who want to discriminate and treat certain people unequally? There are many possible defenses. For example, you could say that all human beings are created in God’s image, and are therefore equal. Treating them unequally would then be an offense against God. Or you could invoke a concept such as human dignity. My preferred defense is based on certain very specific human values, values which are shared by all human beings and which require human rights in order to be protected. Physical security, bodily integrity, self-government, peace, prosperity, belonging, property, identity etc. are some of these values. The problem here is not to convince opponents of human rights – or better of the universality of human rights – of the importance of these values. It will be very difficult to find anyone who needs to be persuaded of this and who is not self-destructive. The problem is how to give an adequate and convincing explanation of the way in which these values require human rights.

These values are shared by human beings in the same way as they share some biological features, like their organs, limbs, and skin. This analogy with biology can be taken quite literally, in the sense that human life can cease when these values are negated. Hearts may not stop beating and brains may not stop working (although they can in extreme cases) but people at the very least will stop living like human beings when they are unable to realize these values. Human rights are therefore indispensible for humanity: all human beings needs them, and we all need them for our humanity. I said a moment ago that all human beings have human rights because they are human beings and for no other reason than their humanity. If asked what is humanity, I would say that it is respect for these universally shared human values.

What Are Human Rights? (18): Human Rights Minimalism and the Theory of Basic Human Rights

Many human rights theorists adopt a kind of human rights minimalism, in the sense that they focus on a subset of the internationally recognized set of human rights which they call basic rights. In most cases, they do so for practical, strategic or opportunistic reasons and not because they consider the rights that they leave out to be less important. An expression often used by rights minimalists is a “thin theory of human rights”.

Typically, a thin theory of rights on includes the following:

  • A right against killing
  • A right against bodily assault such as torture, rape, violence etc.
  • Freedom from slavery
  • Freedom of thought and conscience
  • A right to property
  • Freedom of expression, freedom of religion

Rights such as political participation, economic rights etc. are not included.

John Rawls in his The Law of Peoples makes a distinction between 3 kinds of “peoples” or nations: liberal ones, decent but not liberal ones, and outlaws or “societies burdened by unfavorable conditions”. The first two are “well-ordered” and deserve mutual respect.

Decent nations are not liberal in the sense that they respect all human rights and democratic principles. They may have state religions; they often do not allow adherents of minority faiths or other types of minorities to hold positions of power; they are very hierarchical; they organize political participation via informal consultation rather than elections etc. However, they respect “basic human rights”, and only the basic ones, otherwise they would be liberal.

Rawls considers all human rights to be important, but in non-ideal theory, where you have to deal with states which are more or less removed from the ideal, one has to find a modus vivendi with these states. It is indeed true that holding up a moral standard which is too demanding, may force them to retreat into their previous positions. Some midway point, given by basic human rights, can be a strategically smart move, as a way to get somewhere, but can perhaps also justify violations of other, “non-basic” rights, because “these are not basic and therefore less urgent and less important”, or because “the circumstances which burden us do not permit progress beyond basic rights”.

Michael Ignatieff similarly adopts a “basic rights” approach. His worry is that a wide human rights approach may be conceived as biased, as western ethnocentrism or imperialism. A narrow concept avoids this criticism because there is near universal agreement on the importance of life, bodily security, the avoidance of pain etc.

The problem with this and really any theory of “basic rights” is that a narrow interpretation of rights makes almost everyone “decent” and legitimate and that it robs the concept of rights of any critical force. They can do “no work” as they say.

Perhaps the strongest argument against any theory of basic rights is the interdependence of all human rights. Focusing on a small subset of so-called basic rights obscures the fact that even these rights depend on other, supposedly non-basic rights. Do you think Abu Ghraib would have come to light and would have been stopped in a country where freedom of expression isn’t protected? And how can people be protected against violence, rape and slavery when economic rights are not protected?

What Are Human Rights? (17): Interdependent

Poverty must not be a bar to learning and learning must offer an escape from poverty. Lyndon B. Johnson

Literacy is a bridge from misery to hope. It is a tool for daily life in modern society. It is a bulwark against poverty, and a building block of development, an essential complement to investments in roads, dams, clinics and factories. Literacy is a platform for democratization, and a vehicle for the promotion of cultural and national identity. Especially for girls and women, it is an agent of family health and nutrition. For everyone, everywhere, literacy is, along with education in general, a basic human right…. Literacy is, finally, the road to human progress and the means through which every man, woman and child can realize his or her full potential. Kofi Annan

The right to education (article 26 of the Universal Declaration) and the right not to suffer poverty (article 25) are examples of the interdependence of human rights. A good education helps people to escape poverty, and a good standard of living helps people to get an education. Of course, this works also the other way around: when suffering from poverty, it’s hard to educate yourself, and without education it’s hard to escape poverty.

Here’s a quote by another “Johnson”:

Resolve not to be poor: whatever you have, spend less. Poverty is a great enemy to human happiness; it certainly destroys liberty, and it makes some virtues impracticable, and others extremely difficult. Samuel Johnson

This is another example of interdependence. The absence of poverty is a prerequisite for the exercise of political freedom and participation. Material circumstances can be such that freedom of opinion or the right to political participation is difficult to use. Moreover, in this case it is almost impossible to use freedom and participation in order to improve your material circumstances. However, ou do not have to claim or participate in politics on your own behalf. You can claim rights (for example economic rights) or participate in politics on behalf of somebody else, someone who finds it difficult to do so himself.

What Are Human Rights? (16): Limited Rights That Need to be Balanced Against Each Other

Genuine tragedies in the world are not conflicts between right and wrong. They are conflicts between two rights. Georg Wilhelm Friedrich Hegel

Some rights can cause violations of other rights or of the rights of others, which is why rights have to be balanced against each other.

In specific instances of rights that come into conflict ’97 for example the right to free speech and the right to privacy ’97 a judgment has to be made about the priority of one right or the other. The decision can be made by a judge, but also by the legislator. There can be laws that limit one right for the sake of another. The phrasing of human rights articles in constitutions and treaties often provides the possibility of such legal limits.

These limits are an almost daily occurrence, even in a perfect system. The system of human rights is not a coherent and harmonious whole.

Libel or expressions of racial hatred, for instance, are often illegal, and with good reason. Expressions of hatred are not only insulting (people should be able to live with insults); they can also lead to discrimination or even physical harm. It is a thin line between aggressive words and aggressive actions.

The problem of course is how to decide between rights. On what grounds do we give priority to one right or the other? Only if we have a rule for this can we distinguish between legitimate and illegitimate limits on rights, or better between limits and violations. Part of the rule could be that some rights are clearly absolute. It seems unacceptable to kill someone, even if doing so would allow us to protect some other right of some other person. Limits on the right to life will then never be legitimate and this right should always have priority and can in turn limit other rights.

However, this rule leaves most problems of conflicts between rights unsolved because most rights are not absolute. One cannot always avoid moral, philosophical and hence contestable reasoning when taking a decision between rights. Some subjective judgment on the harm we would inflict when limiting one right or the other might help. In the case of a journalist who divulges intimate details about the private life of an actor, what would be the harm inflicted on the journalist when we limit his or her right to free speech? Probably less then the harm he or she inflicts when limiting the right to privacy of the actor.

Again, a judgment may not always be as easy as in this example. Deciding between rights remains a difficult matter and one that is better left to professional judges.

What Are Human Rights? (15): Constitutionally Universal

The theme of this post is the often difficult relationship between citizenship and human rights. This relationship is difficult because human rights, which are explicitly rights for all people everywhere, without distinctions of any kind, seem to require citizenship, and hence a distinction between groups of somehow differentiated people, for their protection. Without citizenship, it is argued, human rights remain a wish rather than a reality, potential rather than effective. Indeed, we often see that non-citizens such as refugees, asylum-seekers or stateless people suffer more rights violations than the citizens of the countries in which they happen to find themselves, even if these countries are comparatively well functioning democracies.

I want to argue that there are no legal reasons to consider citizenship as some kind of necessary condition for the protection of the rights of people within the territory of a state. Or, to put it negatively, that there are no legal reasons to treat the rights of non-citizens with less respect than the rights of citizens, or to accept violations of the rights of non-citizens with more ease than violations of the rights of citizens. There has to be, in other words, equality of protection between citizens and non-citizens. Citizenship therefore should be irrelevant for the protection of the human rights of the people within a given state territory. The state should be blind in this respect and treat non-citizens as if they were citizens. Non-citizens should have the same legal, judicial and other means to stand up for their rights.

The legal argument is based on Article 2, paragraph 1 of The International Covenant on Civil and Political Rights, which states the following:

“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.

The widely held but mistaken belief that the rights of non-citizens residing in a state are, perhaps inevitably, more precarious than the rights of the citizens living beside them, goes back to the historically important role of citizenship in the practice of protecting human rights. Theoretically, citizenship is irrelevant to human rights. These rights are the equal rights of all human beings, equally and unconditionally. It is not justified to say that one should be white, male, citizen or whatever to be able to enjoy the protection of these rights. Universality, equality and unconditionality are perhaps the main characteristics of human rights. That is where they got their name. They would not be called human rights if this were not the case.

Although theoretically these rights come with no conditions attached, in reality and in practice there are many necessary conditions for their effective protection: a well functioning judiciary, a separation of powers, a certain mentality, certain economic conditions etc. Too many to name them all, unfortunately. But the one we should name and explain is citizenship. Historically, it was because people were citizens of a state that they could use and improve the institutions and judicial instruments of the state, including the executive powers, to enforce their rights. It is this historical contingency, the fact that people have always found their citizenship very useful for their human rights, which has led many to believe that there is some kind of special link between citizenship and human rights which makes it possible and acceptable to treat the rights of non-citizens with less respect. That rights are only accessible to citizens. That the rights of man have often been the “rights of an Englishman” in the words of Burke.

“The survivors of the extermination camps, the inmates of concentration and internment camps, and even the comparatively happy stateless people could see … that the abstract nakedness of being nothing but human was their greatest danger” (Hannah Arendt, The Origins of Totalitarianism).

The state, although it does not grant rights, has to recognize them and make them real, but not only for citizens. The constitution, the main instrument for recognizing human rights, should and nowadays often does explicitly guarantee rights for humans, and not merely rights for citizens. Everybody within the territory of the state, not only the citizens of the state, can then enjoy the human rights protected by the constitution. Citizens as well as non-citizens can then go to court and challenge unjust laws or acts of state. Both categories of people have legal personality. This is often called the constitutional universality of rights.

The protection of the economic rights of non-citizens is an even more contentious matter. Should non-citizens have the same healthcare protection, social security, education etc.? In principle yes, but some countries may have such a large number of non-citizens in their territory that the economic viability of their social security system comes under threat. The tax payers ability to fund the system is limited, and non-citizens normally don’t pay taxes.

What Are Human Rights? (14): Rights of Citizens

Political rights are rights that guarantee participation, directly and through freely chosen representatives, in the affairs of government (mainly legislation). These rights are legitimately reserved for citizens only. A state should guarantee the freedom rights of all persons within its territory, irrespective of their nationality or citizenship, so including the citizens (those people having acquired the nationality of the state by birth, naturalization etc.), immigrants, refugees, stateless people, visitors, tourists etc.

However, political rights may be excluded from this rule because otherwise these rights would become unworkable. This means that people only have political rights in the state of which they are citizens. This in no way limits the universality of political rights. Everybody has political rights, but not everywhere. Furthermore, it must be possible to grant citizenship and the political rights connected to it in a selective way, so as not to empty the meaning of the restriction of political rights to citizens. And this is also what happens in reality. I think there are four good reasons for doing so:

  1. A definition of citizenship purely based on the physical presence within a territory would be too vague. People would enter and leave the community of citizens all of the time and this would create permanent modifications in the image and identity of the political unity (or the political community). This would endanger the stability and the permanence of the state and would allow passing residents to use political rights in order to shape the future of people with whom they have nothing in common. It would therefore be contrary to the democratic ideal of self-control and self-government, an ideal which is the basis of political rights and which I believe to be universally accepted (even tyrannies justify many of their actions on the self-determination of their peoples).
  2. Political rights and citizenship cannot be exercised effectively if the people do not speak a common language (not necessarily their native language). There is no persuasion without mutual understanding and there is no common will without persuasion. On top of that, the effective use of political rights requires that the participants in political life know the political system and the political culture in which they participate. There is even a case to be made for knowledge of general cultural customs as a requirement for granting political rights. All these conditions for the effective use of political rights and hence for citizenship and nationality, seem to imply a further condition, namely a certain stability of residence. It is therefore normal to decide a request for naturalization on the basis of these conditions. However, these conditions do not imply the rejection of multiculturalism. The common language does not have to be the native language and it is possible, in many cases, to know and practice other political and cultural customs without denying your own customs.
  3. Non-citizens usually do not pay taxes. As political decisions often deal with the way in which tax-money should be spent, it seems fair to exclude those who do not contribute to that sum of money. Why should you be allowed to decide what is done with someone else’s money? Let alone spend it for your own purposes?
  4. If a country allows too many people to become its citizens, it can endanger its economic prosperity, especially when the majority of these people are poor and unskilled. This is not egoism. Economic ruin does not help anybody.

Because everybody is not always or cannot always be in his or her own state, and because political rights embody very important human values such as self-government – which means the values of non-citizens as well – we should try to limit the conditions for the enjoyment of these rights by non-citizens to what is absolutely necessary. Foreigners who know the language, the political system and the general culture, who pay taxes and who have lived a certain time in the country should be allowed to enjoy political rights, even when they are not yet citizens in the sense of having acquired the nationality of the country. Not doing so would be discrimination, would lead to frustration and resentment, and would lead to the very problems the first point mentioned above is framed to avoid.

Only freedom rights are universal and come with no strings attached. Citizens and non-citizens alike should have freedom rights everywhere. Freedom rights are the rights of everybody in all places. Political rights are to some extent national rights or rights of citizens only. This does not contradict the principle of the universality of human rights because everybody is a citizen somewhere. Or better, everybody has a right to be a citizen of his or her own state and has a right to be a citizen of a state which protects all the rights of its citizens. Article 15 of the Universal Declaration of Human Rights states:

1. Everyone has the right to a nationality. 2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

 

What Are Human Rights? (13): Not Absolute – The Case of the State of Emergency

Article 4 of the International Covenant on Civil and Political Rights, the main human rights treaty, creates the possibility for states to declare a so-called “state of emergency“, a temporary suspension of mechanisms for the protection of some human rights when this is required by a national crisis:

1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.

3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Paragraph 2 states that the emergency can never warrant the violation of the right to life, the right not to be tortured or held in slavery, the right to due process, or the freedom of thought and religion.

This provision seems to be very reasonable. It is the case that human rights can be misused for the destruction of a human rights protecting community. And the democratic mechanisms can be misused for the abolition of democracy. (This is the famous theory of the suicide of democracy, the best example of which is the Nazi take-over in Weimar Germany). When this misuse develops to a certain scale, one can indeed speak of a regime crisis and a state of emergency suspending certain human rights protections may be the only alternative left to save the community.

For example, in times of war or civil war it is impossible to insist that all human rights and democratic principles be fully applied. The enemy should no be allowed to use human rights for the destruction of a democratic and human rights supporting community. Furthermore, a war, because of the urgency it creates, makes it very difficult to respect certain democratic habits, such as the consultation of large parts of the population, the thorough examination of all alternatives etc. A strong, individual leadership seems better adapted to the urgencies of war. On top of that, the war effort and the war industry require a unity of vision and a high level of cooperation without dissent. Dissent can harm the struggle for survival. It weakens the effectiveness of common actions and it can be exploited by the enemy. In a state of war, society and politics take over many of the undemocratic habits of the military, such as discipline, secrecy, strong leadership, the absence of criticism, uniformity instead of diversity and so on. The war industry as well can harm human rights, for example the rights concerning free choice of labor, good working conditions etc.

Perhaps there are also non-war situations, or warlike situations which do not resemble traditional warfare (such as the “war on terror” if there is such a thing), which may warrant temporary suspension of human rights protection. However, the goal of this post is not to disentangle this notoriously difficult question.

What Are Human Rights? (12)

Human rights are rights which belong to humanity, to all persons of all cultures, nations, states, color, gender etc., whether or not the legal system in which they live explicitly protects these rights. And which belong to all of us equally. No one has more or less rights than the next person.

Human rights are therefore essentially moral claims, and claims which are superior to the legal rules which happen to be in force in the country in which one lives. If necessary, they can be used to challenge these legal rules.

In many countries, these moral claims have been incorporated in the legal rules, often even in the supreme legal rules such as the constitution. This means that people can go to court to have their rights enforced in case of violation, violation either by way actions committed by the government or fellow-citizens, or by way of legislation. In the latter case, a constitutional court may decide that certain laws are invalid and “null and void”.

Different human rights are interdependent. They need each other. Freedom of expression can be quite useless without education and food. But the struggle for social justice also requires freedom of expression.

Rights can be limited. The system of human rights is not a harmonious whole. Rights come into conflict, even in a country that tries its best to respect all rights. Freedom of expression can harm the right to privacy of someone, for instance. Then there has to be a decision: which right takes precedence?

An important characteristic of human rights is their link to democratic government. One right which humans have is political participation. And a democracy is the best way of guaranteeing this participation. Read also art. 3 of Protocol I to the European Convention:

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”.

But the link to democracy goes further. All human rights must be respected, and respected simultaneously, in order to have a proper democratic process. Many tyrannies allow the existence of opposition groups and even, sometimes, a limited degree of political participation, but these groups are harmless because they do not have equal access to publicity, because they do not have the freedom to organize as they wish, or because the people lack the material or intellectual resources necessary to be able to choose wisely among candidates.

It is apparent from this enumeration that the link between democracy and human rights (all human rights) is quite intense. Choosing political leaders is the expression of an opinion. There is obviously a reason for the etymological link between the words “vote” and “voice”. Democracy is the application of human rights to the field of government. Human rights are democratic rights because they are necessary for democracy, just as democracy is necessary for human rights.

The latter is also hinted at in the considerations preceding the articles of the European Convention:

“those fundamental freedoms which . . . are best maintained . . . by an effective political democracy”.

But human rights are not just a necessary prerequisite for democracy. They bring about democracy. When you have the right to express your opinions and to call all kinds of things into question, why would you stop at the government? You will automatically express an opinion on the government and call the government into question. And because it is futile and sad to express an opinion that has no consequences in the real world, people will begin to claim the implementation of their political opinions, which will be the birth of democracy.

Democracy and human rights cannot function separately. They need each other and reinforce each other. Where you have one, you also have the other. And where you have one without the other, there is something missing in what you have. A democracy without human rights is not an ideal democracy, because it cannot function adequately. Human rights without democracy are not complete because one of the most important uses of human rights – calling into question the work of the government and creating a common point of view on the work of the government – is not allowed, or, if it is allowed, does not have any useful consequences because it is impossible to have a democratic vote.

Human rights are not politically or ideologically neutral. They require democracy and are required by democracy. This supports the statement that human rights are not something primarily directed against politics or a way to limit politics. There are an essential part of democratic politics.

What Are Human Rights? (11): Equal Rights

The idea of equal rights resulted from the emergence and the ascent of the bourgeoisie in 17th and 18th century Europe, and was in the first instance, a tool for the protection of their interests. The bourgeoisie was, compared to the aristocracy, a relatively open class. One could enter and leave this class in a relatively free and sudden way and the moment of entering or leaving was sometimes hard to predict. For this reason, it was undesirable to create a new set of privileges in the style of those of the older classes. If the bourgeoisie was to have rights to protect its interests, they had no choice but to instate rights for everybody.

Historically, the transformation of privileges (or freedoms and rights limited to certain groups, such as guilds, corporations, the nobility etc.) into general or human rights was the invention of the revolutions of the 18th century. From this moment on, human rights were considered to be rights of individuals as entities detached from concrete relationships and groups.

Of course, in the beginning this was to a large extent rhetoric. Women and the working class didn’t have the same rights as white affluent men. There was also slavery, colonialism etc. It took centuries of struggle to make people aware of the contradictions between human rights philosophy and social reality. We have made enormous progress (slavery is abolished in many countries, the civil rights movement in the US has ended many types of discrimination like the Jim Crow laws etc) but still the struggle isn’t finished.

What Are Human Rights? (10): Dependent on Prerequisites

People often oppose the universal application of democracy and human rights because they believe that in some places, some of the prerequisites are absent. Their point of view is not that democracy and human rights are in themselves objectionable or undesirable, but that some countries are not mature enough yet (as in the case of economic prerequisites for example) or will perhaps never be mature enough (as in the case of cultural prerequisites for example). Instead of being undesirable, democracy and human rights are (as yet) impossible.

One has to deal with this line of argument, for two reasons. Firstly, because we will dispose of a reason to universalize democracy and human rights if we can show that the argument is incorrect. Secondly, because we will know what to do or change in order to universalize democracy and human rights if it is established that the argument is correct.

In some cases it is correct. Democracy and human rights are indeed conditional. They depend on certain prerequisites for their existence, survival and development. However, this is not a reason for fatalism or for the rejection of universality. It does not mean that democracy or human rights are forever impossible. The necessary conditions can invariably be created, with more or less effort. An example of this is the absence of media monopolies. It is impossible to introduce democracy if the pre-democratic and authoritarian monopoly ownership of the media is maintained. If this monopoly is not abolished with the introduction of democracy, then the old rulers will use their monopoly of the media in order to maintain or to return to power. The absence of this kind of monopoly is a prerequisite for democracy but it is a prerequisite that can be created. The same is true for most if not all the other prerequisites.

What is most interesting is that democracy and human rights do a lot themselves to create or promote the conditions necessary for their survival and development. Instead of “fit for democracy”, we should say “fit through democracy”, in the words of Amartya Sen. You can only become fit for democracy when you already have a democracy. Once democracy and human rights begin to win ground, they improve the chances of their own survival and future development. Here’s a post on peace, which is obviously a precondition for but is also promoted by democracy and rights.

However, it remains a fact that, without important efforts, democracy and human rights are not universally possible yet, even if they are universally necessary or desirable. Fortunately, there are many different kinds of prerequisites and the absence of one can be compensated for by the presence of others. Furthermore, many so-called prerequisites are in fact no more than excuses for rights violations and authoritarian government. If some people claim that a particular country is not yet mature enough for democracy and human rights, then it is very likely that these people have an interest in rights violations and authoritarian government. Those who suffer never claim that they are not mature enough for rights. We should not rush to conclusions. It is very tempting to call something a prerequisite, especially for opponents of democracy and rights.

Among the prerequisites that are not really prerequisites, culture is probably the most important one. Democracy and human rights develop somewhere and have their origins in the life of a community, but this does not mean that their development in this community was necessary or that their development in other, very different communities, is impossible. Democracy and rights can develop in communities with very different cultures, even in communities that do not have a democratic tradition (take the case of post-war Germany for instance). They are connected, not to a culture, but to mankind and to the values of mankind. Of course, there can be elements in some cultures which promote the development of democracy and rights and elements in other cultures which hinder this development (perhaps Protestantism and Catholicism respectively). However, the main causes and prerequisites, namely the values which need democracy and human rights, are present everywhere.

The argument for cultural prerequisites implies that certain cultures are destined for democracy and that other cultures can never be democracies. At an even deeper level, it implies that cultures cannot and should not change. The different cultural identities must be protected against more powerful and hostile cultures engaging in cultural imperialism. A culture which is supposed to be incompatible with democracy must remain undemocratic for its own sake. However, this obscures the fact that cultures and traditions do change and often even want to change. On top of that, many traditions are not as old as they seem. They are often recent creations (anti-democratic traditions are in most cases inventions of authoritarian rulers). So why not create a democratic tradition?

What Are Human Rights? (9): Horizontal Rights

It was once said that the moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; and those who are in the shadows of life, the sick, the needy and the handicapped. Hubert H. Humphrey

I completely agree with this quote, but what seems to be forgotten is that human rights not only depend on the state. Citizens have a duty to respect each other’s rights, and can do much to hurt or protect these rights. Here’s a post on the subject in relation to economic rights.

True, in many cases citizens do not have enough power to do so, and human rights then depend on judicial and political institutions that in turn depend on the protection of the state. This shows that human rights are more than just protective tools directed against the power of the state. They are part of the state. “That to secure these rights, governments are instituted among men” says the Declaration of Independence of 1776.

Of course, protection against the state is an important function of human rights, and should not be neglected. Many violations of human rights are caused by state actions. Power corrupts, and that is why we need rights to limit power. However, without power, rights are useless. Human rights limit the actions of the state, determine what a state is not allowed to do or should refrain from doing, and define those areas where the state is not allowed to interfere. But human rights also, and positively, determine what the state should do. They demand positive action and interference from the state.

For example: the state should not only avoid torturing its citizens, it should also actively protect and help those citizens who are tortured, either by fellow citizens or by some part of the state.