Introduction

The debate around the idea of human rights has gone on for a long time in different parts of the world. It
took centuries for the humankind to realise the true worth of a human being so as to have a better
understanding of the concept of human rights. The history of this struggle is replete with accounts of
brutal regimes characterised by practices like prejudice, discrimination, exploitation, oppression,
enslavement, persecution, torture and extermination. Still, the notion of human rights did not become a
universal idea where there was any coherent position.

The Second World War changed this narrative forever. And since then, the body of international human
rights law has seen tremendous growth. With the growth and evolution of the body of human rights
doctrine, it has also been observed that the idea of human rights has found acceptance in the world.
Today, when we review the developments in the post-UN charter period, we find that more than 70
legally binding international human rights conventions and 30 non-binding standards have been adopted
by the UN General Assembly in the little over seven decades of UN’s existence. They constitute rules in
the international level to regulate the conduct of States.

Even after this remarkable growth and acceptance of the human rights doctrine, the seach for its
philosophical foundations continues to be debated. There is a school of thought which argues that for
gaining universal acceptance, the philosophical underpinnings of the idea of human rights needs to be
uncovered.

However, this thought is severly contested by another school of thought which argues that it is
unnecessary to get into the debate of philosophical foundations. The premise of this argument is that the
Miguel Vatter, Politico-Theological Foundations of Universal Human Rights: The Case of Maritain,
Social Research, Vol. 80, No. 1, Political Theology? (SPRING 2013), pp. 233-260 world has already
made huge progress towards accepting the idea of human rights and hence, any debate in this regard
would be inconsequential.

The world is huge and complex. There are different types of political regimes. One finds monarchy,
dictatorship, democracy, communist rule so and so forth. Protection and promotion of human rights is
closely associated with the type of political regime in place. In addition to this, when we review in terms
of culture, the world is not a homogenous place. How can one moral human rights doctrine have a
universal applicability in the backdrop of tremendous diversity? These are few of the key questions that
this module seeks to examine and address.

Need for Philosophical Foundations

As mentioned earlier, the human rights doctrine has gained a strong foothold in the world as a result of
the numerous enactments under the aegis of the United Nations and other bodies. The body of
international human rights law as it stands is very different from what it was 70 years ago.

This brief historical overview and context of the present status of the idea of human rights begs the
question- whether it is at all fruitful to indulge in an exploration of the philosophical foundations.
Philosophers and political theorists have been arguing for very long that the human rights theory needs to
be strengthened with philosophical foundations.

It is well-established that several social movements and revolutions have contributed to the development
of the current understanding of the idea of human rights. Although, it is said that the international human
rights law has its roots in the western worldview, it is equally true that the notion of human rights has
been enriched through the contributions of all parts of the world.

Therefore, the body of human rights doctrine, that we currently have, is a symbolic of the “overlapping
consensus” around the notion of human dignity. It is but natural that there is a complex web of theoretical
and philosophical underpinnings beneath this structure.

Each milestone in the history of development of human rights contributed towards the theoretical
framework of the human rights doctrine. This is precisely the reason why it is even more difficult to
arrive at a definitive conclusion as to what exactly is the philosophical foundation of human rights.

Even though there have been many contestations regarding the notion of philosophical foundations of
human rights, the questions have continued to maintain their relevance. Do human rights have
philosophical underpinnings? Is it necessary that they have one?

In this context, Jerome Shestack questions whether there is any need for identifying the philosophical
foundations of human rights. Listing several reasons for such an enterprise, Shestack points out that there
is better adherence to human rights law when one understands the moral justifications that underlie that
law. It is also necessary for people across the world, with great diversity in terms of culture, to transcend
these differences and speak to each other. Shestack is essentially encouraging conversation around this
subject so as to advocate the universal recognition of international law principles.

Scholars like Sheshtak have long argued that addressing this normative question regarding the
philosophical foundations of human rights is very critical. Such an enquiry calls for a large debate in the
world which may or may not end up giving the rights answers. At several points in the history of the
modern human rights doctrine, there has been a huge backlash against the idea of universality of human
rights.

While there is one section which argues that the core human rights treaties constitute the de-facto “basic
law” for the modern world, there is significant opposition to this idea as well. As a result of this
contestation, the idea of cultural relativism took birth. Over the years, there have been several ups and
downs with respect to the acceptance of this argument of the cultural relativists. However, the relevance
is very much there and hence, there is a need to engage with them. The principal argument of the concept
of cultural relativism

philosophical foundations of human rights- Utilitarian Rights,

Positivist Rights, Asian values
Utilitarianism, legal positivism, and the "Asian values" argument are three contrasting philosophical approaches
to human rights. While utilitarianism weighs rights based on their contribution to overall happiness, positivism
grounds them solely in law. Asian values, a critique of the universal nature of human rights, emphasize
community and order over individual liberties
.

Utilitarian rights
 This perspective evaluates the moral worth of actions, policies, and rights based on their utility, which is
generally defined as producing the greatest happiness for the greatest number of people.

 Core idea: Rooted in the work of philosophers like Jeremy Bentham, the theory of utilitarian rights views rights
not as inherent to human nature but as instruments that are justified only if they promote social happiness and
general welfare. Bentham famously dismissed the concept of natural rights as "nonsense upon stilts".

 Relationship to the state: A utilitarian approach holds that rights are created by the state and are dependent on
its recognition for their existence.

 Majoritarianism: This approach can, in theory, lead to the suppression of an individual's rights if it is deemed
necessary to increase the overall happiness of the majority. The rights of a minority may be outweighed by the
collective good.

 Critique: Critics argue that utilitarianism fails to protect fundamental individual liberties. It could justify grave
injustices, such as torture or enslavement, if they were shown to bring a net positive outcome for the majority.

Positivist rights

Legal positivism argues that human rights are not derived from a higher moral law but from the laws
established by the state.

 Core idea: Drawing from thinkers like Thomas Hobbes and John Austin, legal positivism holds that rights only
exist because they are created, guaranteed, and enforced by the state. The sole source of rights is the law
passed by a sovereign authority, not a "higher" moral or natural law.

 Relationship to the state: Positivism asserts that there are no rights prior to the state. All rights are contingent
upon their legal recognition. If a right is not codified in law, it is not a "right" in the proper sense.

 Focus on political reality: This theory was developed to focus on the political reality of how rights actually come
into being, rejecting the abstract and "ill-founded" nature of natural rights theories.

 Critique: Opponents argue that positivism offers no moral basis for critiquing unjust laws or demanding a higher
standard of rights. Under a purely positivist system, a state that legally sanctioned torture or genocide would
not be violating "rights" in a technical sense, only its own laws.

Asian values

The "Asian values" argument is a critique of the universality of human rights, suggesting that certain liberal
conceptions are a product of Western culture and are not suitable for non-Western societies.

 Core claims: This perspective asserts four main claims:

1. Cultural relativism: Human rights are not universal. Their form and content vary depending on social, cultural,
and political contexts.

2. Communitarianism: Many Asian societies are centered on the community, family, and state, rather than the
individual. The interests of the group are prioritized over the individual's.
3. Emphasis on socioeconomic rights: Economic and social rights (like the right to development) are often
prioritized over political and civil rights (like freedom of speech).

4. Sovereignty and non-interference: A nation's right to self-determination includes domestic jurisdiction over its
human rights policies, meaning other nations should not interfere.

 Historical context: The argument gained prominence in the 1990s and has often been used by authoritarian
governments in Asia to deflect Western criticism of their human rights records.

 Critique: The "Asian values" argument faces significant criticism. Critics argue that it oversimplifies and
misrepresents the vast diversity of Asian cultures. They also point out that many people in Asia have actively
fought for the same universal human rights as people in the West, suggesting that the desire for these rights is
not exclusively Western.

 The Claims of the Positivists

 The Positivists school opposed the Natural law on account of source of legitimacy of the theory
of rights. It argued that a claim for legitimacy has to come from the state and then only it can
have any authoritative value. Therefore, the primary source of human rights for the positivists
could be discerened only through formal enactments of the law.
 The Positivists school created a distinction between the different claims of legitimacy for a theory
of human rights. This understanding found acceptance in developing the international framework
of human rights. Although the positivists school of thought gives primacy to national sovereignity
in determination of law, the whole international framework of human rights is premised on
several enactments.
 Therefore, it can be seen that the positivist school provides a significant contribution to the
current conception of human rights. However, the contradiction regarding primacy of national
sovereignity has given rise to a serious challenge to the idea of international human rights. As a
result of which, the states have reserved the prerogative of giving the final shape of human rights
to themselves.