Human Rights

Human rights are certain moral guarantees. This article examines the
philosophical basis and content of the doctrine of human rights. The
analysis consists of five sections and a conclusion. Section one assesses
the contemporary significance of human rights, and it argues that the
doctrine of human rights has become the dominant moral doctrine for
evaluating the moral status of the contemporary geo-political order.
Section two proceeds to chart the historical development of the concept
of human rights, beginning with a discussion of the earliest philosophical
origins of the philosophical bases of human rights and culminating in
some of most recent developments in the codification of human rights.
Section three considers the philosophical concept of a human right and
analyses the formal and substantive distinctions philosophers have drawn
between various forms and categories of rights. Section four addresses
the question of how philosophers have sought to justify the claims of
human rights and specifically charts the arguments presented by the two
presently dominant approaches in this field: interest theory and will
theory. Section five then proceeds to discuss some of the main criticisms
currently leveled at the doctrine of human rights and highlights some of
the main arguments of those who have challenged the universalist and
objectivist bases of human rights. Finally, a brief conclusion is presented,
summarising the main themes addressed.

1. Introduction: The Contemporary Significance of Human Rights

Human rights have been defined as

basic moral guarantees that people in all countries and cultures allegedly
have simply because they are people. Calling these guarantees “rights”
suggests that they attach to particular individuals who can invoke them,
that they are of high priority, and that compliance with them is
mandatory rather than discretionary. Human rights are frequently held
to be universal in the sense that all people have and should enjoy them,
and to be independent in the sense that they exist and are available as
standards of justification and criticism whether or not they are
recognized and implemented by the legal system or officials of a country.
(Nickel, 1992:561-2)

The moral doctrine of human rights aims at identifying the fundamental

prerequisites for each human being leading a minimally good life. Human
rights aim to identify both the necessary negative and positive
prerequisites for leading a minimally good life, such as rights against
torture and rights to health care. This aspiration has been enshrined in
various declarations and legal conventions issued during the past fifty
years, initiated by the Universal Declaration of Human Rights (1948) and
perpetuated by, most importantly, the European Convention on Human
Rights (1954) and the International Covenant of Civil and Political
Rights (1966). Together these three documents form the centrepiece of a
moral doctrine that many consider to be capable of providing the
contemporary geo-political order with what amounts to an international
bill of rights. However, the doctrine of human rights does not aim to be a
fully comprehensive moral doctrine. An appeal to human rights does not
provide us with a fully comprehensive account of morality per se. Human
rights do not, for example, provide us with criteria for answering such
questions as whether telling lies is inherently immoral, or what the
extent of one’s moral obligations to friends and lovers ought to be? What
human rights do primarily aim to identify is the basis for determining the
shape, content, and scope of fundamental, public moral norms. As James
Nickel states, human rights aim to secure for individuals the necessary
conditions for leading a minimally good life. Public authorities, both
national and international, are identified as typically best placed to
secure these conditions and so, the doctrine of human rights has become,
for many, a first port of moral call for determining the basic moral
guarantees all of us have a right to expect, both of one another but also,
primarily, of those national and international institutions capable of
directly affecting our most important interests. The doctrine of human
rights aspires to provide the contemporary, allegedly post-ideological,
geo-political order with a common framework for determining the basic
economic, political, and social conditions required for all individuals to
lead a minimally good life. While the practical efficacy of promoting and
protecting human rights is significantly aided by individual nation-states’
legally recognising the doctrine, the ultimate validity of human rights is
characteristically thought of as not conditional upon such recognition.
The moral justification of human rights is thought to precede
considerations of strict national sovereignty. An underlying aspiration of
the doctrine of human rights is to provide a set of legitimate criteria to
which all nation-states should adhere. Appeals to national sovereignty
should not provide a legitimate means for nation-states to permanently
opt out of their fundamental human rights-based commitments. Thus, the
doctrine of human rights is ideally placed to provide individuals with a
powerful means for morally auditing the legitimacy of those
contemporary national and international forms of political and economic
authority which confront us and which claim jurisdiction over us. This is
no small measure of the contemporary moral and political significance of
the doctrine of human rights. For many of its most strident supporters,
the doctrine of human rights aims to provide a fundamentally legitimate
moral basis for regulating the contemporary geo-political order.

2. Historical Origins and Development of the Theory and Practice of

Human Rights
The doctrine of human rights rests upon a particularly fundamental
philosophical claim: that there exists a rationally identifiable moral order,
an order whose legitimacy precedes contingent social and historical
conditions and applies to all human beings everywhere and at all times.
On this view, moral beliefs and concepts are capable of being objectively
validated as fundamentally and universally true. The contemporary
doctrine of human rights is one of a number of universalist moral
perspectives. The origins and development of the theory of human rights
is inextricably tied to the development of moral universalism. The history
of the philosophical development of human rights is punctuated by a
number of specific moral doctrines which, though not themselves full and
adequate expressions of human rights, have nevertheless provided a
number of philosophical prerequisites for the contemporary doctrine.
These include a view of morality and justice as emanating from some pre-
social domain, the identification of which provides the basis for
distinguishing between ‘true’ and merely ‘conventional’ moral principles
and beliefs. The essential prerequisites for a defence of human rights
also include a conception of the individual as the bearer of certain
‘natural’ rights and a particular view of the inherent and equal moral
worth of each rational individual. I shall discuss each in turn.

Human rights rest upon moral universalism and the belief in the
existence of a truly universal moral community comprising all human
beings. Moral universalism posits the existence of rationally identifiable
trans-cultural and trans-historical moral truths. The origins of moral
universalism within Europe are typically associated with the writings of
Aristotle and the Stoics. Thus, in his Nicomachean Ethics, Aristotle
unambiguously expounds an argument in support of the existence of a
natural moral order. This natural order ought to provide the basis for all
truly rational systems of justice. An appeal to the natural order provides
a set of comprehensive and potentially universal criteria for evaluating
the legitimacy of actual ‘man-made’ legal systems. In distinguishing
between ‘natural justice’ and ‘legal justice’, Aristotle writes, ‘the natural
is that which has the same validity everywhere and does not depend upon
acceptance.’ (Nicomachean Ethics, 189) Thus, the criteria for determining
a truly rational system of justice pre-exist social and historical
conventions. ‘Natural justice’ pre-exists specific social and political
configurations. The means for determining the form and content of
natural justice is the exercise of reason free from the distorting effects of
mere prejudice or desire. This basic idea was similarly expressed by the
Roman Stoics, such as Cicero and Seneca, who argued that morality
originated in the rational will of God and the existence of a cosmic city
from which one could discern a natural, moral law whose authority
transcended all local legal codes. The Stoics’ argued that this ethically
universal code imposed upon all of us a duty to obey the will of god. The
Stoics thereby posited the existence of a universal moral community
effected through our shared relationship with god. The belief in the
existence of a universal moral community was maintained in Europe by
Christianity over the ensuing centuries. While some have discerned
intimations towards the notion of rights in the writings of Aristotle, the
Stoics, and Christian theologians, a concept of rights approximating that
of the contemporary idea of human rights most clearly emerges during
the 17th. And 18th. Centuries in Europe and the so-called doctrine of
natural law.
The basis of the doctrine of natural law is the belief in the existence of a
natural moral code based upon the identification of certain fundamental
and objectively verifiable human goods. Our enjoyment of these basic
goods is to be secured by our possession of equally fundamental and
objectively verifiable natural rights. Natural law was deemed to pre-exist
actual social and political systems. Natural rights were thereby similarly
presented as rights individuals possessed independently of society or
polity. Natural rights were thereby presented as ultimately valid
irrespective of whether they had achieved the recognition of any given
political ruler or assembly. The quintessential exponent of this position
was the 17th. Century philosopher John Locke and, in particular, the
argument he outlined in his Two Treatises of Government (1688). At the
centre of Locke’s argument is the claim that individuals possess natural
rights, independently of the political recognition granted them by the
state. These natural rights are possessed independently of, and prior to,
the formation of any political community. Locke argued that natural
rights flowed from natural law. Natural law originated from God.
Accurately discerning the will of God provided us with an ultimately
authoritative moral code. At root, each of us owes a duty of self-
preservation to God. In order to successfully discharge this duty of self-
preservation each individual had to be free from threats to life and
liberty, whilst also requiring what Locke presented as the basic, positive
means for self-preservation: personal property. Our duty of self-
preservation to god entailed the necessary existence of basic natural
rights to life, liberty, and property. Locke proceeded to argue that the
principal purpose of the investiture of political authority in a sovereign
state was the provision and protection of individuals’ basic natural rights.
For Locke, the protection and promotion of individuals’ natural rights
was the sole justification for the creation of government. The natural
rights to life, liberty, and property set clear limits to the authority and
jurisdiction of the State. States were presented as existing to serve the
interests, the natural rights, of the people, and not of a Monarch or a
ruling cadre. Locke went so far as to argue that individuals are morally
justified in taking up arms against their government should it
systematically and deliberately fail in its duty to secure individuals’
possession of natural rights.
Analyses of the historical predecessors of the contemporary theory of
human rights typically accord a high degree of importance to Locke’s
contribution. Certainly, Locke provided the precedent of establishing
legitimate political authority upon a rights foundation. This is an
undeniably essential component of human rights. However, the
philosophically adequate completion of theoretical basis of human rights
requires an account of moral reasoning, that is both consistent with the
concept of rights, but which does not necessarily require an appeal to the
authority of some super-human entity in justifying human beings’ claims
to certain, fundamental rights. The 18th. Century German philosopher,
Immanuel Kant provides such an account.
Many of the central themes first expressed within Kant’s moral
philosophy remain highly prominent in contemporary philosophical
justifications of human rights. Foremost amongst these are the ideals of
equality and the moral autonomy of rational human beings. Kant bestows
upon contemporary human rights’ theory the ideal of a potentially
universal community of rational individuals autonomously determining
the moral principles for securing the conditions for equality and
autonomy. Kant provides a means for justifying human rights as the basis
for self-determination grounded within the authority of human reason.
Kant’s moral philosophy is based upon an appeal to the formal principles
of ethics, rather than, for example, an appeal to a concept of substantive
human goods. For Kant, the determination of any such goods can only
proceed from a correct determination of the formal properties of human
reason and thus do not provide the ultimate means for determining the
correct ends, or object, of human reason. Kant’s moral philosophy begins
with an attempt to correctly identify those principles of reasoning that
can be applied equally to all rational persons, irrespective of their own
specific desires or partial interests. In this way, Kant attaches a condition
of universality to the correct identification of moral principles. For him,
the basis of moral reasoning must rest upon a condition that all rational
individuals are bound to assent to. Doing the right thing is thus not
determined by acting in pursuit of one’s own interests or desires, but
acting in accordance with a maxim which all rational individuals are
bound to accept. Kant terms this the categorical imperative, which he
formulates in the following terms, ‘act only on that maxim through which
you can at the same time will that it should become a universal law.’
(1948:84). Kant argues that this basic condition of universality in
determining the moral principles for governing human relations is a
necessary expression of the moral autonomy and fundamental equality of
all rational individuals. The categorical imperative is self-imposed by
morally autonomous and formally equal rational persons. It provides the
basis for determining the scope and form of those laws which morally
autonomous and equally rational individuals will institute in order to
secure these very same conditions. For Kant, the capacity for the
exercise of reason is the distinguishing characteristic of humanity and
the basis for justifying human dignity. As the distinguishing
characteristic of humanity, formulating the principles of the exercise of
reason must necessarily satisfy a test of universality; they must be
capable of being universally recognized by all equally rational agents.
Hence, Kant’s formulation of the categorical imperative. Kant’s moral
philosophy is notoriously abstract and resists easy comprehension.
Though often overlooked in accounts of the historical development of
human rights, his contribution to human rights has been profound. Kant
provides a formulation of fundamental moral principles that, though
exceedingly formal and abstract, are based upon the twin ideals of
equality and moral autonomy. Human rights are rights we give to
ourselves, so to speak, as autonomous and formally equal beings. For
Kant, any such rights originate in the formal properties of human reason,
and not the will of some super-human being.
The philosophical ideas defended by the likes of Locke and Kant have
come to be associated with the general Enlightenment project initiated
during the 17th. and 18th. Centuries, the effects of which were to extend
across the globe and over ensuing centuries. Ideals such as natural
rights, moral autonomy, human dignity and equality provided a
normative bedrock for attempts at re-constituting political systems, for
overthrowing formerly despotic regimes and seeking to replace them
with forms of political authority capable of protecting and promoting
these new emancipatory ideals. These ideals effected significant, even
revolutionary, political upheavals throughout the 18th. Century,
enshrined in such documents as the United States’ Declaration of
Independence and the French National Assembly’s Declaration of the
Rights of Man and Citizen. Similarly, the concept of individual rights
continued to resound throughout the 19th. Century exemplified by Mary
Wollstencraft’s Vindication of the Rights of Women and other political
movements to extend political suffrage to sections of society who had
been denied the possession of political and civil rights. The concept of
rights had become a vehicle for effecting political change. Though one
could argue that the conceptual prerequisites for the defence of human
rights had long been in place, a full Declaration of the doctrine of human
rights only finally occurred during the 20th. Century and only in response
to the most atrocious violations of human rights, exemplified by the
Holocaust. The Universal Declaration of Human Rights (UDHR) was
adopted by the UN General Assembly on 10th. December 1948 and was
explicitly motivated to prevent the future occurrence of any similar
atrocities. The Declaration itself goes far beyond any mere attempt to
reassert all individuals’ possession of the right to life as a fundamental
and inalienable human right. The UDHR consists of a Preamble and 30
articles which separately identify such things as the right not to be
tortured (article 5), a right to asylum (article 14), a right to own property
(article 17), and a right to an adequate standard of living (article 25) as
being fundamental human rights. As I noted earlier, the UDHR has been
further supplemented by such documents as the European Convention
for the Protection of Human Rights and Fundamental Freedoms (1953)
and the International Covenant on Economic, Social and Cultural Rights
(1966). The specific aspirations contained within these three documents
have themselves been reinforced by innumerable other Declarations and
Conventions. Taken together these various Declarations, conventions and
covenants comprise the contemporary human rights doctrine and
embody both the belief in the existence of a universally valid moral order
and a belief in all human beings’ possession of fundamental and equal
moral status, enshrined within the concept of human rights. It is
important to note, however, that the contemporary doctrine of human
rights, whilst deeply indebted to the concept of natural rights, is not a
mere expression of that concept but actually goes beyond it in some
highly significant respects. James Nickel ( 1987: 8-10) identifies three
specific ways in which the contemporary concept of human rights differs
from, and goes beyond that of natural rights. First, he argues that
contemporary human rights are far more concerned to view the
realization of equality as requiring positive action by the state, via the
provision of welfare assistance, for example. Advocates of natural rights,
he argues, were far more inclined to view equality in formalistic terms,
as principally requiring the state to refrain from ‘interfering’ in
individuals’ lives. Second, he argues that, whereas advocates of natural
rights tended to conceive of human beings as mere individuals, veritable
‘islands unto themselves’, advocates of contemporary human rights are
far more willing to recognize the importance of family and community in
individuals’ lives. Third, Nickel views contemporary human rights as
being far more ‘internationalist’ in scope and orientation than was
typically found within arguments in support of natural rights. That is to
say, the protection and promotion of human rights are increasingly seen
as requiring international action and concern. The distinction drawn by
Nickel between contemporary human rights and natural rights allows
one to discern the development of the concept of human rights. Indeed,
many writers on human rights agree in the identification of three
generations of human rights. First generation rights consist primarily of
rights to security, property, and political participation. These are most
typically associated with the French and US Declarations. Second
generation rights are construed as socio-economic rights, rights to
welfare, education, and leisure, for example. These rights largely
originate within the UDHR. The final and third generation of rights are
associated with such rights as a right to national self-determination, a
clean environment, and the rights of indigenous minorities. This
generation of rights really only takes hold during the last two decades of
the 20th. Century but represents a significant development within the
doctrine of human rights generally.
While the full significance of human rights may only be finally dawning
on some people, the concept itself has a history spanning over two
thousand years. The development of the concept of human rights is
punctuated by the emergence and assimilation of various philosophical
and moral ideals and appears to culminate, at least to our eyes, in the
establishment of a highly complex set of legal and political documents
and institutions, whose express purpose is the protection and promotion
of the fundamental rights of all human beings everywhere. Few should
underestimate the importance of this particular current of human
history.

3. Philosophical Analysis of the Concept of Human Rights

Human rights are rights that attach to human beings and function as
moral guarantees in support of our claims towards the enjoyment of a
minimally good life. In conceptual terms, human rights are themselves
derivative of the concept of a right. This section focuses upon the
philosophical analysis of the concept of a ‘right’ in order to clearly
demonstrate the various constituent parts of the concept from which
human rights emerges. In order to gain a full understanding of both the
philosophical foundations of the doctrine of human rights and the
different ways in which separate human rights function, a detailed
analysis is required.
a. Moral vs. Legal Rights
The distinction drawn between moral rights and legal rights as two
separate categories of rights is of fundamental importance to
understanding the basis and potential application of human rights. Legal
rights refer to all those rights found within existing legal codes. A legal
right is a right that enjoys the recognition and protection of the law.
Questions as to its existence can be resolved by simply locating the
relevant legal instrument or piece of legislation. A legal right cannot be
said to exist prior to its passing into law and the limits of its validity are
set by the jurisdiction of the body which passed the relevant legislation.
An example of a legal right would be my daughter’s legal right to receive
an adequate education, as enshrined within the United Kingdom’s
Education Act (1944). Suffice it to say, that the exercise of this right is
limited to the United Kingdom. My daughter has no legal right to receive
an adequate education from a school board in Southern California. Legal
positivists argue that the only rights that can be said to legitimately exist
are legal rights, rights that originate within a legal system. On this view,
moral rights are not rights in the strict sense, but are better thought of
as moral claims, which may or may not eventually be assimilated within
national or international law. For a legal positivist, such as the 19th.
Century legal philosopher Jeremy Bentham, there can be no such thing
as human rights existing prior to, or independently from legal
codification. For a positivist determining the existence of rights is no
more complicated than locating the relevant legal statute or precedent.
In stark contrast, moral rights are rights that, it is claimed, exist prior to
and independently from their legal counterparts. The existence and
validity of a moral right is not deemed to be dependent upon the actions
of jurists and legislators. Many people argued, for example, that the
black majority in apartheid South Africa possessed a moral right to full
political participation in that country’s political system, even though
there existed no such legal right. What is interesting is that many people
framed their opposition to apartheid in rights terms. What many found so
morally repugnant about apartheid South Africa was precisely its denial
of numerous fundamental moral rights, including the rights not to be
discriminated against on grounds of colour and rights to political
participation, to the majority of that country’s inhabitants. This particular
line of opposition and protest could only be pursued because of a belief in
the existence and validity of moral rights. A belief that fundamental
rights which may or may not have received legal recognition elsewhere,
remained utterly valid and morally compelling even, and perhaps
especially, in those countries whose legal systems had not recognized
these rights. A rights-based opposition to apartheid South Africa could
not have been initiated and maintained by appeal to legal rights, for
obvious reasons. No one could legitimately argue that the legal political
rights of non-white South Africans were being violated under apartheid,
since no such legal rights existed. The systematic denial of such rights
did, however, constitute a gross violation of those peoples’ fundamental
moral rights.
From the above example it should be clear that human rights cannot be
reduced to, or exclusively identified with legal rights. The legal
positivist’s account of justified law excludes the possibility of condemning
such systems as apartheid from a rights perspective. It might, therefore,
appear tempting to draw the conclusion that human rights are best
identified as moral rights. After all, the existence of the UDHR and
various International Covenants, to which South Africa was not a
signatory in most cases, provided opponents of apartheid with a powerful
moral argument. Apartheid was founded upon the denial of fundamental
human rights. Human rights certainly share an essential quality of moral
rights, namely, that their valid existence is not deemed to be conditional
upon their being legally recognized. Human rights are meant to apply to
all human beings everywhere, regardless of whether they have received
legal recognition by all countries everywhere. Clearly, there remain
numerous countries that wholly or partially exclude formal legal
recognition to fundamental human rights. Supporters of human rights in
these countries insist that the rights remain valid regardless, as
fundamental moral rights. The universality of human rights positively
entails such claims. The universality of human rights as moral rights
clearly lends greater moral force to human rights. However, for their
part, legal rights are not subject to disputes as to their existence and
validity in quite the way moral rights are. It would be a mistake to
exclusively identify human rights with moral rights. Human rights are
better thought of as both moral rights and legal rights. Human rights
originate as moral rights and their legitimacy is necessarily dependent
upon the legitimacy of the concept of moral rights. A principal aim of
advocates of human rights is for these rights to receive universal legal
recognition. This was, after all, a fundamental goal of the opponents of
apartheid. Human rights are best thought of, therefore, as being both
moral and legal rights. The legitimacy claims of human rights are tied to
their status as moral rights. The practical efficacy of human rights is,
however, largely dependent upon their developing into legal rights. In
those cases where specific human rights do not enjoy legal recognition,
such as in the example of apartheid above, moral rights must be
prioritised with the intention that defending the moral claims of such
rights as a necessary prerequisite for the eventual legal recognition of
the rights in question.

b. Claim Rights & Liberty Rights

To gain an understanding of the functional properties of human rights it
is necessary to consider the more specific distinction drawn between
claim rights and liberty rights. It should be noted that it is something of a
convention to begin such discussions by reference to W.N. Hohfeld’s
(1919) more extended classification of rights. Hohfeld identified four
categories of rights: liberty rights, claim rights, power rights, and
immunity rights. However, numerous scholars have subsequently tended
to collapse the last two within the first two and hence to restrict
attention to liberty rights and claim rights. The political philosopher
Peter Jones (1994) provides one such example.
Jones restricts his focus to the distinction between claim rights and
liberty rights. He conforms to a well-established trend in rights’ analysis
in viewing the former as being of primary importance. Jones defines a
claim right as consisting of being owed a duty. A claim right is a right
one holds against another person or persons who owe a corresponding
duty to the right holder. To return to the example of my daughter. Her
right to receive an adequate education is a claim right held against the
local education authority, which has a corresponding duty to provide her
with the object of the right. Jones identifies further necessary distinctions
within the concept of a claim right when he distinguishes between a
positive claim right and a negative claim right. The former are rights one
holds to some specific good or service, which some other has a duty to
provide. My daughter’s claim right to education is therefore a positive
claim right. Negative claim rights, in contrast, are rights one holds
against others’ interfering in or trespassing upon one’s life or property in
some way. My daughter could be said to possess a negative claim right
against others attempting to steal her mobile phone, for example. Indeed,
such examples lead on to the final distinction Jones identifies within the
concept of claim rights: rights held ‘in personam’ and rights held ‘in
rem’. Rights held in personam are rights one holds against some
specifically identified duty holder, such as the education authority. In
contrast, rights held in rem are rights held against no one in particular,
but apply to everyone. Thus, my daughter’s right to an education would
be practically useless were it not held against some identifiable, relevant,
and competent body. Equally, her right against her mobile phone being
stolen from her would be highly limited if it did not apply to all those
capable of potentially performing such an act. Claim rights, then, can be
of either a positive or a negative character and they can be held either in
personam or in rem.

Jones defines liberty rights as rights which exist in the absence of any
duties not to perform some desired activity and thus consist of those
actions one is not prohibited from performing. In contrast to claim rights,
liberty rights are primarily negative in character. For example, I may be
said to possess a liberty right to spend my vacations lying on a
particularly beautiful beach in Greece. Unfortunately, no one has a duty
to positively provide for this particular exercise of my liberty right. There
is no authority or body, equivalent to an education authority, for
example, who has a responsibility to realize my dream for me. A liberty
right can be said, then, to be a right to do as one pleases precisely
because one is not under an obligation, grounded in others’ claim rights,
to refrain from so acting. Liberty rights provide for the capacity to be
free, without actually providing the specific means by which one may
pursue the objects of one’s will. For example, a multi-millionaire and a
penniless vagrant both possess an equal liberty right to holiday in the
Caribbean each year.
c. Substantive Categories of Human Rights
The above section was concerned to analyse what might be termed the
‘formal properties’ of rights. This section, in contrast, proceeds to
consider the different categories of substantive human rights. If one
delves into all of the various documents that together form the codified
body of human rights, one can identify and distinguish between five
different categories of substantive human rights. These are as follows:
rights to life; rights to freedom; rights to political participation; rights to
the protection of the rule of law; rights to fundamental social, economic,
and cultural goods. These rights span the so-called three generations of
rights and involve a complex combination of both liberty and claim rights.
Some rights, such as for example the right to life, consist of both liberty
and claim rights in roughly equal measure. Thus, the adequate protection
of the right to life requires the existence of liberty rights against others
trespassing against one’s person and the existence of claim rights to
have access to basic prerequisites to sustaining one’s life, such as an
adequate diet and health-care. Other rights, such as social, economic,
and cultural rights, for example, are weighted more heavily towards the
existence of various claim rights, which requires the positive provision of
the objects of such rights. The making of substantive distinctions
between human rights can have controversial, but important,
consequences. Human rights are typically understood to be of equal
value, each right is conceived of as equally important as every other. On
this view, there can exist no potential for conflict between fundamental
human rights. One is simply meant to attach equal moral weight to each
and every human right. This prohibits arranging human rights in order of
importance. However, conflict between rights can and does occur.
Treating all human rights as of equal importance prohibits any attempts
to address or resolve such conflict when it arises. Take the example of a
hypothetical developing world country with severely limited financial and
material resources. This country is incapable of providing the resources
for realising all of the human rights for all of its citizens, though it is
committed to doing so. In the meantime, government officials wish to
know which human rights are more absolute than others, which
fundamental human rights should it immediately prioritise and seek to
provide for? This question, of course, cannot be answered if one sticks to
the position that all rights are of equal importance. It can only be
addressed if one allows for the possibility that some human rights are
more fundamental than others and that the morally correct action for the
government to take would be to prioritise these rights. A refusal to do so,
no matter how consistent it may be philosophically would be tantamount
to dogmatically sticking one’s head in the metaphorical sands.
Attempting to make such distinctions is, of course, a philosophically
fraught exercise. It clearly requires the existence of some more ultimate
criteria against which one can ‘measure’ the relative importance of
separate human rights. This is a highly controversial issue within the
philosophy of human rights and one which I shall return to when I
consider how philosophers attempt to justify the doctrine of human
rights. What remains to be addressed in our analysis of the concept of a
human right are the questions of what adequately implementing human
rights generally requires, and upon whom does this task fall; who has
responsibility for protecting and promoting human rights and what is
required of them to do so?

d. Scope of Human Rights Duties

Human rights are said to be possessed equally, by everyone. A
conventional corollary of this claim is that everyone has a duty to protect
and promote the human rights of everyone else. However, in practice,
the onus for securing human rights typically falls upon national
governments and international, inter-governmental bodies. Philosophers
such as Thomas Pogge (1995) argue that the moral burden for securing
human rights should fall disproportionately upon such institutions
precisely because they are best placed and most able to effectively
perform the task. On this reading, non-governmental organizations and
private citizens have an important role to play in supporting the global
protection of human rights, but the onus must fall upon the relevant
national and international institutions, such as the governments of
nation-states and such bodies as the United Nations and the World Bank.
One might wish to argue that, for example, human rights can be
adequately secured by the existence of reciprocal duties held between
individuals across the globe. However, ‘privatizing’ human rights in this
fashion would ignore two particularly salient factors: individuals have a
tendency to prioritise the moral demands of those closest to them,
particularly members of their own family or immediate community;
individuals’ ability to exercise their duties is, to a large extent,
determined by their own personal financial circumstances. Thus, global
inequalities in the distribution of wealth fundamentally undermine the
ability of those in the poorer countries to reciprocate assistance provided
them by those living in wealthier countries. Reasons such as these
underlie Pogge’s insistence that the onus of responsibility lies at the level
of national and international institutions. Adequately protecting and
promoting human rights requires both nation-states ensuring the
adequate provision of services and institutions for their own citizens and
the co-operation of nation-states within international institutions acting
to secure the requisite global conditions for the protection and promotion
of everyone’s human rights.

What must such bodies actively do to adequately secure individuals’

human rights? Does my daughter’s human right to receive an adequate
education require the education authority to do everything possible to
assist and enhance my child’s education? Does it require the provision of
a world-class library, frequent study trips abroad, and employing the
most able and best-qualified teachers? The answer is, of course, no.
Given the relative scarcity of resources and the demands placed upon
those resources, we are inclined to say that adequately securing
individuals’ human rights extends to the establishment of decent social
and governmental practice so as to ensure that all individuals have the
opportunity of leading a minimally good life. In the first instance, national
governments are typically held to be primarily responsible for the
adequate provision of their own citizens’ human rights. Philosophers
such as Brian Orend (2002) endorse this aspiration when he writes that
the object of human rights is to secure ‘minimal levels of decent and
respectful treatment.’ It is important to note, however, that the duty
ensure the provision of even minimal levels of decent and respectful
treatment cannot be strictly limited by national boundaries. The
adequate protection and promotion of everyone’s human rights does
require, for example, the more affluent and powerful nation-states
providing sufficient assistance to those countries currently incapable of
adequately ensuring the protection of their own citizens’ basic human
rights. While some may consider Orend’s aspirations for human rights to
be unduly cautious, even the briefest survey of the extent of human
suffering and deprivation in many parts of the world today is sufficient to
demonstrate just how far we are from realizing even this fairly minimal
standard.

National and international institutions bear the primary responsibility of

securing human rights and the test for successfully fulfilling this
responsibility is the creation of opportunities for all individuals to lead a
minimally good life. The realization of human rights requires establishing
the conditions for all human beings to lead minimally good lives and thus
should not be confused as an attempt to create a morally perfect society.
The impression that many have of human rights as being unduly utopian
testifies less to the inherent demands of human rights and more to the
extent to which even fairly modest aspirations are so far from being
realized in the world today. The actual aspirations of human rights are,
on the face of it, quite modest. However, this should not distract from a
full appreciation of the possible force of human rights. Human rights call
for the creation of politically democratic societies in which all citizens
have the means of leading a minimally good life. While the object of
individual human rights may be modest, the force of that right is
intended to be near absolute. That is to say, the demands of rights are
meant to take precedence over other possible social goals. Ronald
Dworkin has coined the term ‘rights as trumps’ to describe this property.
He writes that, ‘rights are best understood as trumps over some
background justification for political decisions that states a goal for the
community as a whole.’ (1977:153) In general, Dworkin argues,
considerations of rights claims must take priority over alternative
considerations when formulating public policy and distributing public
benefits. Thus, for example, a minority’s possession of rights against
discriminatory treatment should trump any and all considerations of the
possible benefits that the majority would derive from discriminating
against the minority group. Similarly, an individual’s right to an adequate
diet should trump other individuals’ desires to eat lavish meals, despite
the aggregate gain in pleasure these individuals would derive. For
Dworkin, rights as trumps expresses the fundamental ideal of equality
upon which the contemporary doctrine of human rights rests. Treating
rights as trumps is a means for ensuring that all individuals are treated
in an equal and like fashion in respect of the provision of fundamental
human rights. Fully realizing the aspirations of human rights may not
require the provision of ‘state of the art’ resources, but this should not
detract from the force of human rights as taking priority over alternative
social and political considerations.

4. Philosophical Justifications of Human Rights

We have established that human rights originate as moral rights but that
the successful passage of many human rights into international and
national law enables one to think of human rights as, in many cases, both
moral rights and legal rights. Furthermore, human rights may be either
claim rights or liberty rights, and have a negative or a positive
complexion in respect of the obligations imposed by others in securing
the right. Human rights may be divided into five different categories and
the principal object of securing human rights is the creation of the
conditions for all individuals to have the opportunity to lead a minimally
good life. Finally, human rights are widely considered to trump other
social and political considerations in the allocation of public resources.
Broadly speaking, philosophers generally agree on such issues as the
formal properties of human rights, the object of human rights, and the
force of human rights. However, there is much less agreement upon the
fundamental question on how human rights may be philosophically
justified. It would be fair to say that philosophers have provided many
different, at times even conflicting, answers to this question.
Philosophers have sought to justify human rights by appeal to single
ideals such as equality, autonomy, human dignity, fundamental human
interests, the capacity for rational agency, and even democracy. For the
purposes of clarity and relative simplicity I will focus upon the two,
presently most prominent, philosophical attempts to justify human rights:
interests theory and will theory. Before I do that, it is necessary to
address a prior question.

a. Do Human Rights Require Philosophical

Justification?
Many people tend to take the validity of human rights for granted.
Certainly, for many non-philosophers human rights may all too obviously
appear to rest upon self-evidently true and universally valid moral
principles. In this respect, human rights may be perceived as empirical
facts about the contemporary world. Human rights do exist and many
people do act in accordance with the correlative duties and obligations
respecting human rights entails. No supporter of human rights could
possibly complain about such perceptions. If nothing else, the prevalence
of such views is pragmatically valuable for the cause of human rights.
However, moral philosophers do not enjoy such licence for
epistemological complacency. Moral philosophers remain concerned by
the question of the philosophical foundations of human rights. There is a
good reason why we should all be concerned with such a question. What
might be termed the ‘philosophically naïve’ view of human rights
effectively construes human rights as legal rights. The validity of human
rights is closely tied to, and dependent upon, the legal codification of
human rights. However, as was argued earlier, such an approach is not
sufficient to justify human rights. Arguments in support of the validity of
any moral doctrine can never be settled by simply pointing to the
empirical existence of particular moral beliefs or concepts. Morality is
fundamentally concerned with what ought to be the case, and this cannot
be settled by appeals to what is the case, or is perceived to be the case.
From such a basis, it would have been very difficult to argue that
apartheid South Africa, to take an earlier example, was a morally unjust
regime. One must not confuse the law with morality, per se. Nor consider
the two to be simply co-extensional. Human rights originate as moral
rights. Human rights claim validity everywhere and for everyone,
irrespective of whether they have received comprehensive legal
recognition, and even irrespective of whether everyone is agreement
with the claims and principles of human rights. Thus, one cannot settle
the question of the philosophical validity of human rights by appealing to
purely empirical observations upon the world. As a moral doctrine,
human rights have to be demonstrated to be valid as norms and not facts.
In order to achieve this, one has to turn to moral philosophy. Presently,
two particular approaches to the question of the validity of human rights
predominate: what might be loosely termed the ‘interests theory
approach’ and the ‘will theory approach’.

b. The Interests Theory Approach

Advocates of the interests theory approach argue that the principal
function of human rights is to protect and promote certain essential
human interests. Securing human beings’ essential interests is the
principal ground upon which human rights may be morally justified. The
interests approach is thus primarily concerned to identify the social and
biological prerequisites for human beings leading a minimally good life.
The universality of human rights is grounded in what are considered to
be some basic, indispensable, attributes for human well-being, which all
of us are deemed necessarily to share. Take, for example, an interest
each of us has in respect of our own personal security. This interest
serves to ground our claim to the right. It may require the derivation of
other rights as prerequisites to security, such as the satisfaction of basic
nutritional needs and the need to be free from arbitrary detention or
arrest, for example. The philosopher John Finnis provides a good
representative of the interests theory approach. Finnis (1980) argues
that human rights are justifiable on the grounds of their instrumental
value for securing the necessary conditions of human well-being. He
identifies seven fundamental interests, or what he terms ‘basic forms of
human good’, as providing the basis for human rights. These are: life and
its capacity for development; the acquisition of knowledge, as an end in
itself; play, as the capacity for recreation; aesthetic expression;
sociability and friendship; practical reasonableness, the capacity for
intelligent and reasonable thought processes; and finally, religion, or the
capacity for spiritual experience. According to Finnis, these are the
essential prerequisites for human well-being and, as such, serve to justify
our claims to the corresponding rights, whether they be of the claim right
or liberty right variety.

Other philosophers who have defended human rights from an interests-

based approach have addressed the question of how an appeal to
interests can provide a justification for respecting and, when necessary,
even positively acting to promote the interests of others. Such questions
have a long heritage in western moral and political philosophy and
extend at least as far back as the 17th. Century philosopher Thomas
Hobbes. Typically, this approach attempts to provide what James Nickel
(1987:84) has termed ‘prudential reasons’ in support of human rights.
Taking as the starting point the claim that all human beings possess
basic and fundamental interests, advocates of this approach argue that
each individual owes a basic and general duty to respect the rights of
every other individual. The basis for this duty is not mere benevolence or
altruism, but individual self-interest. As Nickel writes, ‘a prudential
argument from fundamental interests attempts to show that it would be
reasonable to accept and comply with human rights, in circumstances
where most others are likely to do so, because these norms are part of
the best means for protecting one’s fundamental interests against actions
and omissions that endanger them.’ (ibid). Protecting one’s own
fundamental interests requires others’ willingness to recognize and
respect these interests, which, in turn, requires reciprocal recognition
and respect of the fundamental interests of others. The adequate
protection of each individual’s fundamental interests necessitates the
establishment of a co-operative system, the fundamental aim of which is
not to promote the common good, but the protection and promotion of
individuals’ self-interest.

For many philosophers the interests approach provides a philosophically

powerful defence of the doctrine of human rights. It has the apparent
advantage of appealing to human commonality, to those attributes we all
share, and, in so doing, offers a relatively broad-based defence of the
plethora of human rights considered by many to be fundamental and
inalienable. The interests approach also provides for the possibility of
resolving some of the potential disputes which can arise over the need to
prioritise some human rights over others. One may do this, for example,
by hierarchically ordering the corresponding interests identified as the
specific object, or content, of each right.

However, the interests approach is subject to some significant criticisms.

Foremost amongst these is the necessary appeal interests’ theorists
make to some account of human nature. The interests-approach is clearly
operating with, at the very least, an implicit account of human nature.
Appeals to human nature have, of course, proven to be highly
controversial and typically resist achieving the degree of consensus
required for establishing the legitimacy of any moral doctrine founded
upon an account of human nature. For example, combining the appeal to
fundamental interests with the aspiration of securing the conditions for
each individual leading a minimally good life would be complicated by
social and cultural diversity. Clearly, as the economic philosopher
Amartya Sen (1999) has argued, the minimal conditions for a decent life
are socially and culturally relative. Providing the conditions for leading a
minimally good life for the residents of Greenwich Village would be
significantly different to securing the same conditions for the residents of
a shanty town in Southern Africa or South America. While the interests
themselves may be ultimately identical, adequately protecting these
interests will have to go beyond the mere specification of some
purportedly general prerequisites for satisfying individuals’ fundamental
interests. Other criticisms of the interests approach have focused upon
the appeal to self-interest as providing a coherent basis for fully
respecting the rights of all human beings. This approach is based upon
the assumption that individuals occupy a condition of relatively equal
vulnerability to one another. However, this is simply not the case. The
model cannot adequately defend the claim that a self-interested agent
must respect the interests of, for example, much less powerful or
geographically distant individuals, if she wishes to secure her own
interests. On these terms, why should a purely self-interested and over-
weight individual in, say, Los Angeles or London, care for the interests of
a starving individual in some distant and impoverished continent? In this
instance, the starving person is not in a position to affect their
overweight counterpart’s fundamental interests. The appeal to pure self-
interest ultimately cannot provide a basis for securing the universal
moral community at the heart of the doctrine of human rights. It cannot
justify the claims of universal human rights. An even more
philosophically oriented vein of criticism focuses upon the interests’
based approach alleged neglect of constructive human agency as a
fundamental component of morality generally. Put simply, the interests-
based approach tends to construe our fundamental interests as pre-
determinants of human moral agency. This can have the effect of
subordinating the importance of the exercise of freedom as a principal
moral ideal. One might seek to include freedom as a basic human
interest, but freedom is not constitutive of our interests on this account.
This particular concern lies at the heart of the so-called ‘will approach’ to
human rights.

c. The Will Theory Approach

In contrast to the interests approach, the will theory attempts to
establish the philosophical validity of human rights upon a single human
attribute: the capacity for freedom. Will theorists argue that what is
distinctive about human agency is the capacity for freedom and that this
ought to constitute the core of any account of rights. Ultimately, then,
will theorists view human rights as originating in, or reducible to, a
single, constitutive right, or alternatively, a highly limited set of
purportedly fundamental attributes. H.L.A. Hart, for example,
inferentially argues that all rights are reducible to a single, fundamental
right. He refers to this as ‘equal right of all men to be free.’ (1955:77).
Hart insists that rights to such things as political participation or to an
adequate diet, for example, are ultimately reducible to, and derivative of,
individuals’ equal right to liberty. Henry Shue (1996) develops upon
Hart’s inferential argument and argues that liberty alone is not
ultimately sufficient for grounding all of the rights posited by Hart. Shue
argues that many of these rights imply more than mere individual liberty
and extend to include security from violence and the necessary material
conditions for personal survival. Thus, he grounds rights upon liberty,
security, and subsistence. The moral philosopher Alan Gewirth (1978,
1982) has further developed upon such themes. Gewirth argues that the
justification of our claims to the possession of basic human rights is
grounded in what he presents as the distinguishing characteristic of
human beings generally: the capacity for rationally purposive agency.
Gewirth states that the recognition of the validity of human rights is a
logical corollary of recognizing oneself as a rationally purposive agent
since the possession of rights are the necessary means for rationally
purposive action. Gewirth grounds his argument in the claim that all
human action is rationally purposive. Every human action is done for
some reason, irrespective of whether it be a good or a bad reason. He
argues that in rationally endorsing some end, say the desire to write a
book, one must logically endorse the means to that end; as a bare
minimum one’s own literacy. He then asks what is required to be a
rationally purposive agent in the first place? He answers that freedom
and well-being are the two necessary conditions for rationally purposive
action. Freedom and well-being are the necessary means to acting in a
rationally purposive fashion. They are essential prerequisites for being
human, where to be human is to possess the capacity for rationally
purposive action. As essential prerequisites, each individual is entitled to
have access to them. However, Gewirth argues that each individual
cannot simply will their own enjoyment of these prerequisites for rational
agency without due concern for others. He bases the necessary concern
for others’ human rights upon what he terms the ‘principle of generic
consistency’ (PGC). Gewirth argues that each individual’s claim to the
basic means for rationally purposive action is based upon an appeal to a
general, rather than, specific attribute of all relevant agents. I cannot
logically will my own claims to basic human rights without
simultaneously accepting the equal claims of all rationally purposive
agents to the same basic attributes. Gewirth has argued that there exists
an absolute right to life possessed separately and equally by all of us. In
so claiming, Gewirth echoes Dworkin’s concept of rights as trumps, but
ultimately goes further than Dworkin is prepared to do by arguing that
the right to life is absolute and cannot, therefore, be overridden under
any circumstances. He states that a ‘right is absolute when it cannot be
overridden in any circumstances, so that it can never be justifiably
infringed and it must be fulfilled without any exceptions.’ (1982:92). Will
theorists then attempt to establish the validity of human rights upon the
ideal of personal autonomy: rights are a manifestation of the exercise of
personal autonomy. In so doing, the validity of human rights is
necessarily tied to the validity of personal autonomy. On the face of it,
this would appear to be a very powerful, philosophical position. After all,
as someone like Gewirth might argue, critics of this position would
themselves necessarily be acting autonomously and they cannot do this
without simultaneously requiring the existence of the very means for
such action: even in criticizing human rights one is logically pre-
supposing the existence of such rights.

Despite the apparent logical force of the will approach, it has been
subjected to various forms of criticism. A particularly important form of
criticism focuses upon the implications of will theory for so-called
‘marginal cases’; human beings who are temporarily or permanently
incapable of acting in a rationally autonomous fashion. This would
include individuals who have diagnosed from suffering from dementia,
schizophrenia, clinical depression, and, also, individuals who remain in a
comatose condition, from which they may never recover. If the
constitutive condition for the possession of human rights is said to be the
capacity for acting in a rationally purposive manner, for example, then it
seems to logically follow, that individuals incapable of satisfying this
criteria have no legitimate claim to human rights. Many would find this
conclusion morally disturbing. However, a strict adherence to the will
approach is entailed by it. Some human beings are temporarily or
permanently lacking the criteria Gewirth, for instance, cites as the basis
for our claims to human rights. It is difficult to see how they could be
assimilated within the community of the bearers of human rights on the
terms of Gewirth’s argument. Despite this, the general tendency is
towards extending human rights considerations towards many of the so-
called ‘marginal cases’. To do otherwise would appear to many to be
intuitively wrong, if not ultimately defensible by appeal to practical
reason. This may reveal the extent to which many peoples’ support of
human rights includes an ineluctable element of sympathy, taking the
form of a general emotional concern for others. Thus, strictly applying
the will theorists’ criteria for membership of the community of human
rights bearers would appear to result in the exclusion of some categories
of human beings who are presently recognized as legitimate bearers of
human rights.

The interests theory approach and the will theory approach contain
strengths and weaknesses. When consistently and separately applied to
the doctrine of human rights, each approach appears to yield conclusions
that may limit or undermine the full force of those rights. It may be that
philosophical supporters of human rights need to begin to consider the
potential philosophical benefits attainable through combining various
themes and elements found within these (and other) philosophical
approaches to justifying human rights. Thus, further attempts at
justifying the basis and content of human rights may benefit from
pursuing a more thematically pluralist approach than has typically been
the case to date.
5. Philosophical Criticisms of Human Rights
The doctrine of human rights has been subjected to various forms of
fundamental, philosophical criticism. These challenges to the
philosophical validity of human rights as a moral doctrine differ from
critical appraisals of the various philosophical theories supportive of the
doctrine for the simple reason that they aim to demonstrate what they
perceive to the philosophical fallacies upon which human rights are
founded. Two such forms of critical analysis bear particular attention:
one which challenges the universalist claims of human rights, and
another which challenges the presumed objective character of human
rights principles.

a. Moral Relativism
Philosophical supporters of human rights are necessarily committed to a
form of moral universalism. As moral principles and as a moral doctrine,
human rights are considered to be universally valid. However, moral
universalism has long been subject to criticism by so-called moral
relativists. Moral relativists argue that universally valid moral truths do
not exist. For moral relativists, there is simply no such thing as a
universally valid moral doctrine. Relativists view morality as a social and
historical phenomenon. Moral beliefs and principles are therefore
thought of as socially and historically contingent, valid only for those
cultures and societies in which they originate and within which they are
widely approved. Relativists point to the vast array of diverse moral
beliefs and practices apparent in the world today as empirical support for
their position. Even within a single, contemporary society, such as the
United States or Great Britain, one can find a wide diversity of
fundamental moral beliefs, principles, and practices. Contemporary,
complex societies are thus increasingly considered to be pluralist and
multicultural in character. For many philosophers the multicultural
character of such societies serves to fundamentally restrict the substance
and scope of the regulative political principles governing those societies.
In respect of human rights, relativists have tended to focus upon such
issues as the presumed individualist character of the doctrine of human
rights. It has been argued by numerous relativists that human rights are
unduly biased towards morally individualist societies and cultures, at the
necessary expense of the communal moral complexion of many Asian and
African societies. At best, some human rights’ articles may be considered
to be redundant within such societies, at worse they may appear to be
positively harmful if fully implemented, replacing the fundamental values
of one civilization with those of another and thereby perpetuating a form
of cultural and moral imperialism.

The philosophical debate between universalists and relativists is far too

complex to adequately summarise here. However, certain immediate
responses to the relativist critique of human rights are immediately
available. First, merely pointing to moral diversity and the presumed
integrity of individual cultures and societies does not, by itself, provide a
philosophical justification for relativism, nor a sufficient critique of
universalism. After all, there have existed and continue to exist many
cultures and societies whose treatment of their own people leaves much
to be desired. Is the relativist genuinely asking us to recognize and
respect the integrity of Nazi Germany, or any other similarly repressive
regime? There can be little doubt that, as it stands, relativism is
incompatible with human rights. On the face of it, this would appear to
lend argumentative weight to the universalist support of human rights.
After all, one may speculate as to the willingness of any relativist to
actually forego their possession of human rights if and when the social
surroundings demanded it. Similarly, relativist arguments are typically
presented by members of the political elites within those countries whose
systematic oppression of their peoples has attracted the attention of
advocates of human rights. The exponential growth of grass-roots human
rights organizations across many countries in the world whose cultures
are alleged to be incompatible with the implementation of human rights,
raises serious questions as to the validity and integrity of such
‘indigenous’ relativists. At its worst, the doctrine of moral relativism may
be being deployed in an attempt to illegitimately justify oppressive
political systems. The concern over the presumed incompatibility
between human rights and communal moral systems appears to be a
more valid issue. Human rights have undeniably conceived of the
principal bearer of human rights as the individual person. This is due, in
large part, to the Western origins of human rights. However, it would be
equally fair to say that the so-called ‘third generation’ of human rights is
far more attuned to the communal and collective basis of many
individuals’ lives. In keeping with the work of political philosophers such
as Will Kymlicka, there is increasing awareness of the need to tailor
human rights principles to such things as the collective rights of
minorities and, for example, these minorities’ claims to such things as
communal land rights. While human rights remain philosophically
grounded within an individualist moral doctrine, there can be no doubt
that attempts are being made to adequately apply and human rights to
more communally oriented societies. Human rights can no longer be
accused of being ‘culture-blind’.

b. Epistemological Criticisms of Human Rights

The second most important contemporary philosophical form of human
rights’ criticism challenges the presumed objective basis of human rights
as moral rights. This form of criticism may be thought of as a river into
which run many philosophical tributaries. The essence of these attempts
to refute human rights consists in the claim that moral principles and
concepts are inherently subjective in character. On this view moral
beliefs do not emanate from a correct determination of a rationally
purposive will, or even gaining insight into the will of some divine being.
Rather, moral beliefs are fundamentally expressions of individuals’
partial preferences. This position therefore rejects the principal ground
upon which the concept of moral rights rests: that there exist rational
and a priori moral principles upon which a correct and legitimate moral
doctrine is to be founded. In modern, as opposed to ancient, philosophy
this argument is most closely associated with the 18th. Century Scottish
philosopher David Hume. More recently versions of it have been
defended by the likes of [Link], Ludwig Wittgenstein, [Link],
and Richard Rorty. Indeed, Rorty (1993) has argued that human rights
are based not upon the exercise of reason, but a sentimental vision of
humanity. He insists that human rights are not rationally defensible. He
argues that one cannot justify the basis of human rights by appeal to
moral theory and the canons of reason since, he insists, moral beliefs and
practices are not ultimately motivated by an appeal to reason or moral
theory, but emanate from a sympathetic identification with others:
morality originates in the heart, and not in the head. Interestingly,
though unambiguously sceptical about the philosophical basis of human
rights, Rorty views the existence of human rights as a ‘good and
desirable thing’, something whose existence we all benefit from. His
critique of human rights is this not motivated by an underlying hostility
to the doctrine. For Rorty, human rights are better served by emotional
appeals to identify with the unnecessary suffering of others, than by
arguments over the correct determination of reason.

Rorty’s emphasis upon the importance of an emotional identification with

others is a legitimate concern. It may, for example, provide additional
support for the philosophical arguments presented by the likes of
Gewirth. However, as Michael Freeman has recently pointed out, ‘Rorty’s
argument…confuses motivation and justification. Sympathy is an emotion.
Whether the action we take on the basis of our emotions is justified
depends on the reasons for the action. Rorty wishes to eliminate
unprovable metaphysical theories from philosophy, but in his critique of
human-rights theory he goes too far, and eliminates reasoning.’
(2002:56) Rorty’s own account of the basis and scope of moral knowledge
ultimately prohibits him from claiming that human rights is a morally
desirable phenomenon, since he explicitly rules out the validity of
appealing to the independently verifiable criteria required to uphold any
such judgement. What we require from Rorty is an independent reason
for accepting his conclusion. It is precisely this that he denies may be
legitimately provided by moral philosophy.
Rorty aside, the general critique of moral objectivity has a long and very
well-established heritage in modern moral philosophy. It would be false
to claim that either the objectivists or the subjectivists have scored any
ultimate ‘knock-down’ over their philosophical opponents. Human rights
are founded upon the claim to moral objectivity, whether by appeal to
interests or the will. Any critique of moral objectivism is bound,
therefore, to have repercussions for the philosophical defence of human
rights. As I noted above, philosophers such as Alan Gewirth and John
Finnis, in their separate and different ways, have attempted to establish
the rational and objective force of human rights. The reader interested in
pursuing this particular theme further is therefore recommended to
pursue a close philosophical analysis of either, or both, of these two
philosophers.
6. Conclusion
Human rights have a long historical heritage. The principal philosophical
foundation of human rights is a belief in the existence of a form of justice
valid for all peoples, everywhere. In this form, the contemporary doctrine
of human rights has come to occupy centre stage in geo-political affairs.
The language of human rights is understood and utilized by many
peoples in very diverse circumstances. Human rights have become
indispensable to the contemporary understanding of how human beings
should be treated, by one another and by national and international
political bodies. Human rights are best thought of as potential moral
guarantees for each human being to lead a minimally good life. The
extent to which this aspiration has not been realized represents a gross
failure by the contemporary world to institute a morally compelling order
based upon human rights. The philosophical basis of human rights has
been subjected to consistent criticism. While some aspects of the ensuing
debate between philosophical supporters and opponents of human rights
remain unresolved and, perhaps, irresolvable, the general case for
human rights remains a morally powerful one. Arguably, the most
compelling motivation for the existence of human may rest upon the
exercise of imagination. Try imagining a world without human rights!