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- Herausgeber: John Wiley & Sons
- Kategorie: Geisteswissenschaft
- Serie: Key Concepts
- Sprache: Englisch
- Veröffentlichungsjahr: 2017
Human Rights is an introductory text that is both innovative and challenging. Its unique interdisciplinary approach invites students to think imaginatively and rigorously about one of the most important and influential political concepts of our time. Tracing the history of the concept, the book shows that there are fundamental tensions between legal, philosophical and social-scientific approaches to Human Rights. This analysis throws light on some of the most controversial issues in the field: Is the idea of the universality of Human Rights consistent with respect for cultural difference? Are there collective Human Rights? What are the underlying causes of human-rights violations? And why do some countries have much worse human-rights records than others? The third edition has been substantially revised and updated to take account of recent developments, including the 'Arab Spring', the civil war in Syria, the refugee crisis, ISIS and international terrorism, and climate change politics. Widely admired and assigned for its clarity and comprehensiveness, this book remains a 'go-to' text for students in the social sciences, as well as students of human-rights law who want an introduction to the non-legal aspects of their subject.
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Table of Contents
Key Concepts Series
Title page
Copyright page
Preface to the Third Edition
Acknowledgements
1: Introduction
Realities
Concepts
The social sciences
Beyond human-rights law
Conclusion
2: Origins
Why history? Which history?
On rights and tyrants
Justice and rights
Natural rights
The age of revolutions
The decline of natural rights
Conclusion
3: After 1945
The UN and the rights revival
The Universal Declaration of Human Rights
From theory to practice
Conclusion
4: Theories of Human Rights
Why theory?
Human-rights theory
Conclusion
5: Putting Law in its Place
Introduction: human rights and social science
The dominance and critique of law
Political science
Sociology
Social psychology
Anthropology
International relations
Conclusion
6: Universality, Diversity and Difference
Universalism
Imperialism
Cultural relativism
On culture and rights
Religion and human rights: the case of Islam
The right to culture
Minority rights
Indigenous peoples
The right to self-determination
The rights of women
The rights of children
Sexual minorities
Persons with disabilities
Migrants, refugees, asylum-seekers
Conclusion
7: The Politics of Human Rights
The real politics of human rights
The boomerang theory
The national politics of human rights
Explaining human-rights violations: the quantitative approach
NGOs
Conclusion
8: Globalization, Development and Poverty
Globalization
Global poverty and inequality
Economic and social rights
Development
The right to development
The causes of development
Trade and investment
Business corporations
International financial institutions
Climate change
Global justice
Conclusion
9: Conclusion
Learning from history
Objections to human rights
Beyond human-rights law
Concluding remarks
References
Index
End User License Agreement
Guide
Cover
Table of Contents
Start Reading
Preface
CHAPTER 1
Index
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Key Concepts Series
Barbara Adam,
Time
Alan Aldridge,
Consumption
Alan Aldridge,
The Market
Jakob Arnoldi,
Risk
Will Atkinson,
Class
Colin Barnes and Geof Mercer,
Disability
Darin Barney,
The Network Society
Mildred Blaxter,
Health 2nd edition
Harriet Bradley,
Gender 2nd edition
Harry Brighouse,
Justice
Mónica Brito Vieira and David Runciman,
Representation
Steve Bruce,
Fundamentalism 2nd edition
Joan Busfield,
Mental Illness
Margaret Canovan,
The People
Andrew Jason Cohen,
Toleration
Alejandro Colás,
Empire
Mary Daly,
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Anthony Elliott,
Concepts of the Self 3rd edition
Steve Fenton,
Ethnicity 2nd edition
Katrin Flikschuh,
Freedom
Russell Hardin,
Trust
Patricia Hill Collins and Sirma Bilge,
Intersectionality
Geoffrey Ingham,
Capitalism
Fred Inglis,
Culture
Robert H. Jackson,
Sovereignty
Jennifer Jackson Preece,
Minority Rights
Gill Jones,
Youth
Paul Kelly,
Liberalism
Anne Mette Kjær,
Governance
Ruth Lister,
Poverty
Jon Mandle,
Global Justice
Cillian McBride,
Recognition
Anthony Payne and Nicola Phillips,
Development
Judith Phillips,
Care
Chris Phillipson,
Ageing
Robert Reiner,
Crime
Michael Saward,
Democracy
John Scott,
Power
Timothy J. Sinclair,
Global Governance
Anthony D. Smith,
Nationalism 2nd edition
Deborah Stevenson,
The City
Leslie Paul Thiele,
Sustainability 2nd edition
Steven Peter Vallas,
Work
Stuart White,
Equality
Michael Wyness,
Childhood
Copyright page
Copyright © Michael Freeman 2017
The right of Michael Freeman to be identified as Author of this Work has been asserted in accordance with the UK Copyright, Designs and Patents Act 1988.
First edition published in 2002 by Polity Press
This edition published in 2017 by Polity Press
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ISBN-13: 978-1-5095-1027-6
ISBN-13: 978-1-5095-1028-3(pb)
A catalogue record for this book is available from the British Library.
Library of Congress Cataloging-in-Publication Data
Names: Freeman, Michael, 1936- author.
Title: Human rights / Michael Freeman.
Description: Third edition. | Cambridge ; Malden, MA : Polity, 2017. | Series: Key concepts | Includes bibliographical references and index.
Identifiers: LCCN 2016055252 (print) | LCCN 2016058072 (ebook) | ISBN 9781509510276 (hardback) | ISBN 9781509510283 (paperback) | ISBN 9781509510306 (Mobi) | ISBN 9781509510313 (Epub)
Subjects: LCSH: Human rights. | BISAC: POLITICAL SCIENCE / Political Freedom & Security / Human Rights.
Classification: LCC JC571 .F675 2017 (print) | LCC JC571 (ebook) | DDC 323–dc23
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Preface to the Third Edition
Each edition of this book has been written under the shadow of a human-rights dilemma. The first was completed in 2001, shortly after NATO had conducted a bombing campaign against Serbia to protect the human rights of ethnic Albanians in Kosovo. Since this action had not been authorized by the UN Security Council, it raised the question as to the conditions under which outside powers had the right, or the duty, to intervene militarily in the affairs of a sovereign state to protect the human rights of some of its citizens – the so-called doctrine of ‘the responsibility to protect’.
The second was completed in 2010, after the election of Barack Obama as President of the USA, and the ambiguous ‘ending’ of the ‘global war on terror’. The Obama presidency failed to resolve dilemmas about how to fight terrorism while defending human rights or the responsibility to protect.
This third edition, completed in 2016, was written under the shadow of the terrible civil war in Syria, and the challenge of massive refugee flows. These constitute a kind of crisis for the human rights movement. ‘Crisis’ has been a theme of some recent academic writings on human rights: Michael Ignatieff (1999) has announced the ‘midlife crisis’ of human rights; Stephen Hopgood (2013) their ‘endtimes’; and Eric Posner (2014) ‘the twilight of human rights law’. In the second half of 2016 human-rights supporters were alarmed by the rise of extreme nationalism in several Western democracies, as expressed, for example, in the referendum vote for the United Kingdom to leave the European Union, the election of Donald Trump as President of the USA, and the increasing influence of right-wing governments and parties in continental Europe. Despite these developments, this book offers a defiantly, though cautiously, optimistic alternative to this fashionable pessimism.
This edition updates, revises and hopefully improves the second edition. In particular, chapter two takes into account the several excellent books on the Magna Carta written to mark its 800th anniversary in 2015, and recent contributions to Kant scholarship; chapter three updates the story of human rights through the Obama presidency to the current civil war in Syria; chapter six has been substantially rewritten to reflect recent thinking about the relation of human rights to ‘culture’, and includes, for the first time, sections on the human rights of persons with disabilities, refugees and migrant workers. Chapter eight brings the story of climate change up to the Paris Conference of November–December 2015. There are also updates and revisions in the other chapters.
This edition is dedicated, with admiration, to the democrats of Syria; with respect to all those seeking to struggle for human rights in a sustainable environment; and with love to Atala, Emilio and Ada.
Michael Freeman
University of Essex
November 2016
Acknowledgements
One evening in the autumn of 1977, Nick Bunnin, then teaching in the Department of Philosophy at the University of Essex, invited me to accompany him to a meeting of Amnesty International in Colchester. I agreed, reluctantly (for no reason other than laziness), but ended that evening as Chairperson of the newly formed Colchester Group of Amnesty International. This book would never have been written were it not for Nick Bunnin and my colleagues – local, national and international – at Amnesty. I would like to remember particularly the late Peter Duffy, whose moral commitment and intellectual rigour made him an exemplary human-rights activist.
I hesitate to list those to whom this book owes an intellectual debt, for fear of omitting many unfairly. I would, nevertheless, like to thank Onora O'Neill, Sheldon Leader, Nigel Rodley, Françoise Hampson, Geoff Gilbert, Paul Hunt, Brian Barry, Alan Ryan, Albert Weale, Tom Sorell, Deborah Fitzmaurice, Matthew Clayton, Marcus Roberts, Andrew Fagan, David Beetham, Peter Jones, Simon Caney, Hillel Steiner, Bhikhu Parekh, Brenda Almond, Paul Gilbert, Peter Baehr, David Forsythe, Jack Donnelly, Rhoda Howard-Hassmann, Joseph Chan, Julia Tao, Will Kymlicka, Barry Clarke, Hugh Ward, John Gray, David Robertson, Richard Claude, Stan Cohen, Richard Wilson, Wiktor Osiatyńksi, Saladin Meckled-Garcia and Basak Çali.
I have learned a great deal from students in the Department of Government and the Human Rights Centre at the University of Essex, far too numerous to mention. I have been invited to teach and learn about human rights in many countries, from China to Brazil, from Sweden to South Africa, and cannot emphasize too much how important the ensuing cross-cultural dialogue has been.
None of the above is, of course, responsible for the errors in this book, which I have managed on my own. The book is dedicated to June, Saul and Esther with love and admiration. Without them, especially, it would not have been possible.
Michael Freeman
University of Essex
November 2016
1IntroductionThinking About Human Rights
Realities
On a visit to Darfur, a region of western Sudan, Nicholas Kristof, a journalist on the New York Times, arrived at an oasis where, he reports, several tens of thousands of people were sheltering under trees after having been driven from their villages by Janjaweed militia, supported by the government of Sudan. He describes what he saw there.
Under the first tree, I found a man who had been shot in the neck and the jaw; his brother, shot only in the foot, had carried him for forty-nine days to get to this oasis. Under the next tree was a widow whose parents had been killed and stuffed in the village well to poison the local water supply; then the Janjaweed had tracked down the rest of her family and killed her husband. Under the third tree was a four-year-old orphan girl carrying her one-year-old baby sister on her back; their parents had been killed. Under the fourth tree was a woman whose husband and children had been killed in front of her, and then she was gang-raped and left naked and mutilated in the desert.
(Kristof 2006: 14)
This report will arouse various emotions in those who can bear to read it: horror, sympathy, outrage. We may struggle to find words adequate to express our emotions. These are ‘atrocities’, we may say, or ‘crimes against humanity’. We may demand that someone should stop them, although we may well not be clear who should do what to bring this about. We may ask why such things happen.
These terrible events are the product of complex historical, political and economic processes. Darfur is composed of many ethnic groups, all Muslim. It has suffered from economic and social neglect since colonial times. Nevertheless, it was relatively stable until recently, even though a long and brutal civil war had been waged between the government of Sudan and the Muslim north of the country against the mainly Christian south. The peace of Darfur was unsettled by a number of different factors: increased competition between farmers and nomads for land resources that were diminishing as a result of desertification; the emergence of a racist ideology in Sudan distinguishing supposedly superior Arabs from supposedly inferior Africans; expansionist policies by Libya's Colonel Gaddafi in neighbouring Chad that destabilized the Sudan–Chad border with movements of insurgents and refugees; and the intrusion of southern Sudanese rebels. Darfurian self-defence organizations developed into a number of rebel forces. The Sudanese government sought to repress these rebellions by a savage counter-insurgency, employing Arab militias known as the Janjaweed (‘evil horsemen’). A peace agreement was signed on 5 May 2006 by the Sudanese government and the largest rebel group, but not by other rebels. It has been estimated that at least 200,000 people were killed in the period 2003–6, more than two million displaced, and more than four million have suffered deprivation on both sides of the Darfur–Chad border (Reeves 2006). (The population of Darfur is approximately six million).
Many people in many countries have been victims of state violence in recent times. Government forces massacred more than half a million civilians in Indonesia in the mid-1960s in an attempt to suppress Communism. Estimates of the number of people killed by the Khmer Rouge regime of Pol Pot in Cambodia are as high as 2.2 million people, or between one-quarter and one-third of the entire population. More than 9,000 people ‘disappeared’ under the military government in Argentina in the late 1970s. During the rule of Idi Amin in Uganda from 1972 to 1978 more than 250,000 people were killed. Hundreds of thousands of civilians were murdered by security forces in Iraq during the 1980s. Between 1980 and 1992 almost 2 per cent of the population of El Salvador is estimated to have died as the result of ‘disappearances’ and political killings during the civil war (Amnesty International 1993: 2). In 1994 between 500,000 and 1,000,000 people were killed in the government-directed genocide in Rwanda (Glover 1999: 120). This list is far from complete. It does not include Bosnia, Chechnya, Kosovo, East Timor, Sri Lanka, Yemen and Syria.
The concept of human rights provides a way of thinking about such events. As you read these words, there will probably be reports in the newspapers, and on radio, television, the internet and other ‘new media’, of similar cruelties and injustices elsewhere. These are stories about the violation of human rights. These events are all too real, but ‘human rights’ is a concept. It is a device for thinking about the real, and expressing our thoughts. If we are to understand the discourse of human rights, we must analyse this concept. It is, however, easier to respond with sympathetic emotion to stories like those of the Darfurians than to analyse our concepts so that they are clear, precise and coherent. The understanding of concepts is the goal of the philosophical discipline of conceptual analysis. The concept of ‘human rights’, however, presents a challenge to this discipline. Concepts are abstract, and conceptual analysis is an abstract discipline. It can seem remote from the experiences of human beings. The analysis of the concept of human rights, therefore, must be combined with a sympathetic understanding of the human experiences to which the concept refers.
If conceptual analysis is both necessary and problematic for understanding human rights, so is statistical analysis. R. J. Rummel has calculated that governments murdered at least 169,202,000 persons in the twentieth century. According to his estimates, more than 45,000,000 political murders occurred between 1945 and the early 1990s (Rummel 1994: chapters 1–2). These statistics are important, but they can easily numb our sense of the human suffering involved. Human-rights violations are facts that can sometimes be best expressed in terms of numbers, but there is an uneasy relationship between our knowledge of the numbers and our understanding of what they mean.
We do not need the concept of ‘human rights’ to know and to say that these things are wrong. We do, however, need a reason to oppose them. If reality violates human rights, why should we take the side of human rights, and not that of reality? How do we know that there are any human rights? Such questions were posed, to challenge us, by the philosopher Jean Améry, who survived the Nazi extermination camp at Auschwitz. Perhaps, he considered, the Nazis were right because they were the stronger. Perhaps people had no rights. Perhaps all moral concepts were mere fashions. Was this not the reality of history? After all, classical Greek civilization was based on slavery and massacre. Was Nazi Germany different (Glover 1999: 40)?
Glover has suggested that, for most people, most of the time, the virtues that matter are personal and narrow in scope. In everyday life, ordinary kindness is more important than human rights (Glover 1999: 41). Ordinary people, however, are sometimes not permitted an everyday life. They may get terror, massacres, mass rapes and ‘ethnic cleansing’. The concept of human rights becomes relevant to ordinary people when the relative security of everyday life is absent or snatched away. It has been said that human rights are most needed when they are most violated. Where they are generally well respected, we tend to take them for granted, and may consequently underestimate their importance.
The concept of human rights is, to a considerable extent, though not wholly, legal. It first appeared on the international agenda when the United Nations Charter declared in 1945 that the UN was determined ‘to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small’. The fountainhead of human-rights law is the Universal Declaration of Human Rights (UDHR), which was adopted by the UN General Assembly on 10 December 1948. This Declaration has, according to Morsink, ‘profoundly changed the international landscape, scattering it with human rights protocols, conventions, treaties, and derivative declarations of all kinds’. There is now ‘not a single nation, culture or people that is not in one way or another enmeshed in human rights regimes’ (Morsink 1999: x). The Declaration was adopted in the aftermath of the victorious war against Fascism, and in a spirit of idealism. It was proclaimed to be ‘a common standard of achievement for all peoples and all nations’. All human beings, Article 1 affirms, ‘are born free and equal in dignity and rights’. Everyone, Article 2 states, ‘is entitled to all the rights and freedoms set forth in this Declaration without discrimination of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.
There is obviously a wide gap between the promises of the 1948 Declaration and the real world of human-rights violations. In so far as we sympathize with the victims, we may criticize the UN and its member governments for failing to keep their promises. However, we cannot understand the gap between human-rights ideals and the real world of human-rights violations by sympathy or by legal analysis. This requires investigation by the various social sciences of the causes of social conflict and political oppression, and of the interaction between national and international politics. The UN introduced the concept of human rights into international law and politics. The field of international politics is, however, dominated by states and other powerful actors (such as multinational corporations) that have priorities other than human rights. It is a leading feature of the human-rights field that the governments of the world proclaim human rights but have a highly variable record of implementing them. We must understand why this is so.
Concepts
The concept of human rights raises further difficulties because it stretches well beyond cases of extreme cruelty and injustice. Article 1 of the Universal Declaration, for example, states that all human beings are equal in rights. Article 18 says that everyone has the right to freedom of religion. How should we define the right to freedom of religion of those whose religion denies that all human beings are equal in rights? How can we make sense of human rights if the implementation of some human rights requires the violation of others? Here the problem of implementing human-rights ideals derives, not from lack of political will or conflicts of political interests, but from the fact that human rights may not be ‘compossible’, that is, the implementation of one human right may require the violation of another, or the protection of a human right of one person may require the violation of the same human right of another. If a religious group, for example, forbids its members, on the basis of its religious beliefs, to change their religion, then the religious freedom of the group will conflict with that of any members who wish to change their religion. If we support human rights that are not compossible, our thinking must surely be confused.
The problem of compossibility has been aggravated by what has been called ‘rights inflation’, that is, the extension of the concept of human rights to an ill-defined number of causes. There are controversial human rights even in the UDHR, such as the right to ‘periodic holidays with pay’. If the concept of human rights is to be useful, we must distinguish human rights from other social demands. Courts may decide rather precisely the legal rights of those who appear before them. Human rights are rather vaguely worded, and their meaning is not always settled in courts of law. The determination of the meaning of human rights is a continuing social process that involves not only legal professionals (such as judges, UN experts and academic lawyers) but also various ‘stakeholders’ (such as governments, inter-governmental organizations, non-governmental organizations (NGOs), non-legal academics and citizens). If the concept of human rights is to be useful, we must distinguish human rights from the legal rights of particular societies, and from other desirable social objectives.
What are ‘rights’, and how do ‘human rights’ differ from other kinds of rights? The concept of ‘rights’ is closely connected to that of ‘right’. Something is ‘right’ if it conforms with a standard of rightness. All societies have such standards, but it is often said that many cultures have no conception of people ‘having rights’. The idea of everyone having ‘human rights’ is said to be especially alien to most cultures. MacIntyre has argued that human rights do not exist. Belief in human rights is like belief in witches and unicorns; it is superstition (MacIntyre 1981: 67).
MacIntyre's mistake is to think of ‘human rights’ as ‘things’ that we could ‘have’ as we have arms and legs. This mistake is admittedly embedded in the language of rights, for we do speak of our ‘having’ rights. Rights are, however, not mysterious things that have the puzzling quality of not existing, but just claims or entitlements that derive from moral and/or legal rules. This conception of rights defeats MacIntyre's objection because, unlike witches and unicorns, these moral and legal rules exist in numerous treaties and other agreements, and in values shared by many, if not by all. It is not superstitious to believe that human beings ought to have a certain kind of respect. The problem of ‘believing in’ human rights is not whether or not they exist, but whether there are sufficiently good reasons for supporting them and seeking to implement them. This requires a justificatory philosophical theory of human rights.
The social sciences
Social scientists neglected human rights until recently. The aspiration to be ‘scientific’ marginalized the legal and moral conceptions of human rights. However, the increasing importance of the concept of human rights in national and international politics has stimulated the interest of some social scientists. The explanation of variations in respect for human rights in different societies has been accepted as a proper object of social-scientific investigation. It is sometimes said that gross human-rights violations – such as genocide – are ‘irrational’ and beyond scientific explanation. There is, however, a body of knowledge about state behaviour, ethnic diversity, repression, rebellion and social conflict that may explain a great deal about such actions. There is much controversy about theories and methodology in the social sciences, but there is no reason why behaviour that violates or respects human rights should be less explicable than other complex social phenomena.
The academic study of human rights has been dominated by lawyers. This may be explained by the fact that the concept has been developed to a large extent through national and international law. The field of human rights has become a technical, legal discourse, and lawyers dominate it because they are the technical experts. Law appears to provide ‘objective’ standards that ‘protect’ the concept of human rights from moral and political controversy. This appearance is, however, illusory, for the meaning and application of human-rights standards are legally and politically very controversial. International human-rights law is made by governments that act from political motives. The extent to which they implement human-rights law is influenced by political factors. NGOs, which have come to play an increasingly important role in the making of human-rights law, monitoring its implementation and campaigning for improved human-rights performance by governments, are political actors, even if they appeal to legal standards. Major human-rights changes, such as those which took place in the Communist societies of central and eastern Europe, in Latin America, South Africa and elsewhere towards the end of the twentieth century, were primarily political events.
The study of international politics has been dominated by the theory of Realism, which is primarily concerned with the interests and power of states rather than with such ethical issues as those of human rights. The academic discipline of International Relations has recently shown some interest in human rights (Forsythe 2012), but the topic remains marginal. Some International Relations scholars challenge the Realist school by emphasizing the role of ideas in general, and of human-rights ideas in particular, in international politics (Risse, Ropp and Sikkink 2013). The study of human rights in international politics has, however, with a few notable exceptions, fallen between international law, which is not systematically empirical, and International Relations, which has neglected human rights for the supposed ‘realities’ of state power.
The neglect of human rights by the social sciences and the domination of human-rights studies by lawyers distort the concept of human rights. Two different conceptions of contemporary human rights challenge the legal approach. The first conceives of human rights as fundamental moral rights and then proceeds to consider that they may need legal and/or political protection (Wellman 2011). The second holds that human rights are political constructions and do not derive from any particular moral philosophy (Beitz 2009). International human-rights law is concerned primarily with the obligations of governments and the rights of citizens. Political theory is the discipline that seeks to explain and evaluate the relations between governments and citizens. Political science is the discipline that describes and explains the variations in the degree to which governments respect their citizens' rights. The contribution of political science to the study of human rights has, however, been limited until recently. The study of human-rights issues has sometimes been carried out with the use of related concepts such as ‘dictatorship’, ‘totalitarianism’, ‘authoritarianism’, ‘repression’, ‘state terror’ and ‘genocide’. There is also much work in political science on democracy that is relevant to understanding the current state of human rights. The desire of political scientists to be ‘scientific’, however, has led them to neglect a concept that appears at worst moralistic, and at best legalistic. Slowly, this neglect is being overcome (Landman 2005b).
The Western tradition of political theory has produced many formidable critics of such rights. This presents a strong challenge to the political science of human rights, especially since the classical critics are echoed by contemporary theorists. Underlying any social sciences of human rights, therefore, are a number of controversial philosophical assumptions. This does not, however, distinguish the social science of human rights from other branches of social science, such as the politics of democracy or the sociology of inequality. Nevertheless, it requires the social scientist of human rights to be aware of these philosophical controversies.
Sociologists and anthropologists have recently begun to contribute to human-rights studies (Morris 2013; Frezzo 2015; Goodale 2009). The impact of the global economy on the protection of human rights is increasingly becoming a subject of study (Pogge 2008). This has been accompanied by an interest in ‘the human-rights movement’ as a transnational social movement (Brysk 2013). There are, therefore, signs that the social science of human rights is beginning to wake up.
Beyond human-rights law
International law was traditionally concerned with regulating the relations among states with the primary aim of maintaining international peace. The leading concept of this project was that of state sovereignty that forbade states from interfering with each other's internal affairs. The UN introduced the concept of human rights into international law without altering the concept of sovereignty. This legal framework is, however, subject to intense political pressures, as states and other actors seek to realize their interests and their principles in the international arena. The implementation of human rights by the UN is, therefore, highly politicized, and this leads to selective attention to human-rights problems, political bargaining and delays. The UN is not a utopian realm above politics, and the political character of human-rights implementation is unavoidable. The politics of human rights is not, however, always harmful to human rights, for governments may raise genuine human-rights issues from political motives, and, when political motives lead to a narrow and selective concern for human rights, appeals are sometimes made to human-rights principles that can be applied more widely.
The implementation of the UN's human-rights principles was seriously delayed and distorted for many years by the politics of the Cold War. The UN proclaimed human rights, but did little to implement them. The cost of proclaiming human rights is low, and many governments, in the conditions of the Cold War, thought that they had much to lose by respecting the human rights of their sometimes highly discontented citizens. In this context, what is at first sight surprising is the development, albeit slow, of international human-rights law, and of a movement of NGOs to campaign for its implementation. In this situation, the UN stood in an ambiguous position. It was, on the one hand, the author and guardian of international human-rights standards, while, on the other hand, it was an association of governments that were often serious human-rights violators. The UN has, therefore, been the central institution where international human-rights law and politics meet, and often clash, and where the gap between human-rights ideals and realities is especially apparent.
The political character of human rights has philosophical implications. The lawyers who dominate human-rights studies sometimes rely, explicitly or implicitly, on the philosophy of legal positivism, which says that human rights are what human-rights law says they are. Human rights are, however, made and interpreted by a political process. The provisions of the UDHR were the subject of intense debates, and the final text was produced by a long series of votes (Morsink 1999). It is politically important that human rights have been codified in international and national law. It is a mistake, however, to believe that the legalization of human rights takes the concept out of politics.
The legal-positivist approach to human rights not only misrepresents their character, but also has dangerous implications. The point of human rights has historically been to criticize legal authorities and laws that violate human rights. Legal positivists sometimes say that the only rights are those that are legally enforceable. It may be desirable that human rights should be legally enforceable, but it is not necessary that they should be so. The concept of human rights implies that they are often not. If human rights were legally enforceable, one could, and normally would, appeal to one's legal rights, and would not need to appeal to one's human rights. One appeals to human rights precisely when legal institutions fail to recognize and enforce them. If legal positivism were true, an important basis for criticizing unjust legal systems would be eliminated.
The principal philosophical problem of human rights is to show how they can be justified, if they derive neither from law nor culture, both of which can be criticized on the ground that they violate human rights. There is an historical reason why there is a problem about the ‘source’ of human rights. The first systematic human-rights theory, presented by John Locke, assumed that God was the ‘source’ of human rights. Locke could assume agreement with and among his readers that this source provided the ultimate validation of such rights: God was the source both of what exists and of value. The problem faced by the United Nations in proclaiming the UDHR was that, precisely because it claimed that these rights were universal, it could not base them on any particular religious belief. The justificatory basis of human rights had to be abstracted from particular religious and ideological beliefs, but the character of that abstraction was not clear. The UDHR says little about the source of these rights, apart from some large and unsubstantiated claims in the preamble that recognition of human rights is ‘the foundation of freedom, justice and peace in the world’, and that disregard for human rights has resulted in ‘barbarous acts which have outraged the conscience of mankind’. These claims may contain important truths, but they do not give a clear account of the source or justification of human rights.
The idea of the ‘source’ of human rights contains an important and confusing ambiguity. It can refer to the social origins or the ethical justification of human rights. Social scientists have studied the social origins of rights in, for example, popular political protest, and, important though such studies may be for an historical understanding of the discourse of rights, we must be careful not to confuse social origins with ethical justifications, since there are social origins of evil as well as of good. The social-scientific approach to rights, by its preference for avoiding ethical questions, sometimes falls into this confusion. There are, therefore, two distinct questions about the ‘sources’ of human rights that we need to answer. Why do we have human rights? Why ought we to have human rights?
Another set of philosophical questions concerns the relations between human rights and other values. Do human rights occupy the whole space of moral and political theory, or are there other important values? If there are other important values, how are human rights related to them? The UDHR claims that human rights are the foundation of freedom, justice and peace, but does not say how these values are related, conceptually or empirically. It is important to determine as clearly as possible the limits as well as the value of human rights. It is common to say that human rights establish minimum standards of good government. Claiming too much for human rights may make it harder to defend them against their critics, and thereby weaken their appeal and effects. We need to be clear, therefore, whether the concept of human rights supports a comprehensive or a minimum-standards political philosophy.
There is a huge gap between the experiences of the Darfurians and the world of the UN. This gap has been filled to a large extent by law and legal studies. These studies are certainly important. The gap is, however, also filled by politics, and by social, cultural and economic forces. These may be more important, but they have been relatively neglected in academic discourse. The aim of this book is to make a contribution to rectifying this neglect.
Conclusion
The study and, to a considerable extent, the practice of human rights have been dominated by lawyers. The cause of human rights owes a great debt to them. There is a danger, however, that excessive attention to human-rights law distorts our understanding of human rights. This book seeks to put law in its place by adopting an interdisciplinary approach. The concept of human rights has a history marked by philosophical controversies. Knowing that history and understanding those controversies illuminate the state of human rights today. In the past half-century, the concept has been incorporated into a large body of international and national law, but it has also been at the heart of political conflicts. The law is important, but understanding human rights requires us to understand its politics. Law and politics do not exhaust the human-rights field. The other social sciences – such as sociology, anthropology and economics – are essential to our appreciation of human-rights problems and their possible solutions. Human rights is an interdisciplinary concept par excellence.
We begin this inquiry by tracing, in chapter two, the historical emergence of human rights. The story continues in chapter three by examining its gradual acceptance by the international community. Chapter four investigates the principal theoretical justifications of and debates about the concept. The distinctive contribution of the social sciences is then surveyed in chapter five. In chapter six, much-debated questions about the supposed universality of human rights and its relation to actual human differences are addressed, with particular emphasis on cultural minorities, indigenous peoples, and the rights of women, children, sexual minorities, disabled persons, migrants and refugees. In chapter seven the place of human rights in national and international politics is analysed, and the respective roles of international institutions, governments and NGOs evaluated. The political economy of human rights forms the subject of chapter eight, with special attention to development, globalization, business corporations, international financial institutions and climate change. We conclude, in chapter nine, with reflections on the history of human rights, their current status, and their likely future. One of the few certainties is that understanding human rights will be essential to understanding the world that we live in for a long time to come.
2OriginsThe Rise and Fall of Natural Rights
Why history? Which history?
The history of human rights can be studied for its own sake and to understand better the contemporary concept of human rights. Before we can study the history of human rights, however, we must know what it is the history of. Until recently, there were two main views about the history of human rights. On one view, human rights had little history before the establishment of the United Nations (UN) in 1945. Another view was that human rights had a much longer history. Both views have been challenged recently by Samuel Moyn, who maintains that the concept of human rights refers to a global morality that became significant only in the 1970s. Earlier concepts of rights were addressed to different problems and thus had different meanings. These earlier concepts could not therefore be the source of the later one (Moyn 2010).
Moyn rightly notes that human rights achieved unprecedented influence in the 1970s, but is wrong to claim that this was discontinuous with previous concepts. There is continuity and change in the concept of human rights from the ancient Greeks to the present.
Some say that the concept of human rights has a universal history. The Code of Hammurabi (c.1792–1750 BC), king of Babylon, is said to be the oldest surviving text establishing the rule of law. Cyrus the Great (died 529 BC), king of Persia, proclaimed a policy of religious toleration and abolished slavery. The Buddhist King Ashoka of India (c.264–238 BC) also promoted religious toleration, provided for the health and education of his people, and appointed officials to prevent wrongful punishments (Weeramantry 1997: 7–8). Thus principles now associated with human rights can be found in ancient times in many cultures. These examples weaken the claim that the concept of human rights is Western. However, they appear to be evidence of benevolent rulers rather than of human rights as such.
Others maintain that the concept of human rights originated in the West, and was universalized only recently. Some argue that, if the history of the concept is Western, its validity cannot be universal. Others say that the history of a concept is irrelevant to its validity: there may be good reasons for universalizing a concept that has a particular history.
MacIntyre has claimed that there is no expression in any language correctly translated by our expression ‘a right’ before 1400. He doubts whether human beings could have had rights if they could not have expressed them in their language (MacIntyre 1981: 66–7). He suggests that the fact that there was no concept of ‘rights’ before 1400 means that the concept of universal human rights is invalid.
Some have argued that there could be no concept of individual rights in ancient times, because individuals were considered to be subordinate parts of the social whole. This idea was weakened by increasing social complexity that undermined roles and identities, creating the rights-bearing individual. This historical sociology of individual rights is supposed to discredit the concept of universal human rights. But is it true?
On rights and tyrants
The contemporary concept of human rights is intended primarily to protect individuals from the abuse of power by governments. Whether or not the ancient Greeks had a concept of ‘rights’, they certainly had the concepts of power and its abuse. This was expressed in the concept of tyranny, which was a form of government in which the ruler governed in his own interest and treated his people unjustly. It was possible, however, for the Greeks to think about tyranny without talking about rights. In Sophocles' play Antigone, for example, the king forbids Antigone to bury her dead brother because he had been a rebel. Antigone defies the king's order, but on the ground that she has a religious duty to bury her brother, not on the ground that she has a right to do so. We might see this as a human-rights drama about freedom of religious practice, but Sophocles did not express it this way.
There are reasons, however, for rejecting MacIntyre's view that the ancient Greeks had no language of rights. Aristotle had a conception of rights and a language in which to express it. He believed that constitutions could assign rights to citizens. Citizens' rights might include rights to property and to participation in public affairs. When these rights were violated, the laws determined compensation or punishment. Citizens' rights would be distributed differently in different political systems. Aristotle used a range of expressions that we can properly translate as ‘a right’. In particular, he used the expression to dikaion to mean a just claim, which we could translate as a right. He had no conception of human rights, however, as he believed that rights derived from constitutions, and that some men were slaves by nature (Miller, F. 1995).
Justice and rights
Roman law provides the main link between classical Greek thought about rights and modern conceptions through its influence on medieval ideas. The French historian Michel Villey initiated a debate on the distinction between objective right (that which is right) and subjective rights (personal entitlements). Villey argued that Roman law had no conception of subjective rights: the Latin word ius referred to objective right (Tuck 1979: 7–9; Tierney 1988: 4–6, 15). Villey's view has been questioned on the ground that Roman law conceived of justice as rendering to each his right (suum ius). Whether ius was objective or subjective, it was legal, and not natural (Tuck 1979).
The Stoic philosophers believed in a universal moral community, governed by a common natural law. It is, however, doubtful whether they had the concept of human rights, although there is some scholarly disagreement on this point (Sorabji 1993; Mitsis 1999: 176–7).
The Stoic philosophy influenced early Christianity, which provided a new basis for the unity underlying the diversity of peoples. Christians saw the salvation of the individual soul as the highest good. The duty to seek salvation presupposed the autonomy of the individual will, which derived its dignity from the will of God. However, although Christianity separated the demands it made of the individual from those made by society, St Paul preached obedience to secular political authority. Christianity also preached the ‘love of the poor’. Although salvation might be available only to an elite, all humans were morally equal in that each was a candidate for salvation: women as well as men. The Christian author Tertullian wrote around 217 AD that it was ‘a basic human right that everyone should be free to worship according to his own convictions’ (Wiles and Santer 1977: 227). Eventually, the idea emerged that secular laws were not legitimate if they contravened the laws of God. The Church, however, largely conformed to the norms of society, accepting existing social hierarchies, the patriarchal family, and slavery.
A clear shift from objective right to subjective rights took place in the late Middle Ages. According to Tierney, medieval people had the concept of rights, and a language in which to express it, at least as early as the twelfth century (Tierney 1989: 626, 629). These rights were rights of particular persons, statuses, collectivities or classes: kings, lords, bishops, communities, etc. They were not natural rights. However, according to one conception of natural law, natural right was what natural law permitted. Natural rights might be rights of individuals, but they derived, not from the nature of the individual, but from the right order of society (Tierney 1989).
Gratian's Decretum (c. 1140), an encyclopaedia of Church law, however, referred to the iura libertatis (rights of liberty) that could never be lost (Coleman 1993: 109–10). The thirteenth-century writer Henry of Ghent held that everyone had a natural right to self-preservation and property in his body. The canonistic vocabulary of the thirteenth century was rich in terms that could be translated as ‘right’: libertas (liberty), potestas (power), facultas (faculty), immunitas (immunity), dominium (lordship) and others (Tierney 1992: 63–7; 1997: 262).
One source of late medieval natural-rights theory was the dispute between the Dominicans and the Franciscans, who championed the life of poverty, thereby questioning the legitimacy of private property. The Franciscans claimed to renounce their will and their material possessions to devote themselves to God. This challenged the Church, which was committed to the compatibility of Christian virtue and private property. The Dominicans argued that the Franciscans could not renounce their will, and they could not entirely renounce property, as they were necessarily the proprietors of the food and drink that was necessary to their survival. In 1328 Pope John XXII declared that God had granted to Adam dominium over temporal things. Property was therefore sanctified by divine law. By the fourteenth century it was also possible to argue that to have a right was to be the lord of one's moral world (Tuck 1979; Brett 2003).
The Magna Carta (1215) recognizes ‘subjective’ rights by such terms as ‘his right’ (jus suum) (Holt 1965: 96, 100, 104). The concept of rights was, however, at that time embedded in customary law. The Magna Carta was, furthermore, a text whose purpose was to provide remedies for specific grievances. It was, therefore, not a charter of the rights of Englishmen, still less of human rights. Yet its reputation as a precursor of modern human-rights texts is not wholly unmerited. Article 39, for example, says that no free man shall be arrested, imprisoned, expropriated, exiled or in any way ruined, except by the lawful judgement of his peers or by the law of the land (Roshwald 1959: 361–4; Holt 1965: 1–2, 327). This article was more limited than it might appear, as the category of ‘free men’ was created by royal prerogative. However, Parliament in 1354 applied the principle of this article to all men ‘of whatever estate or condition’ (Coleman 1993: 113–14).
The Magna Carta was later transformed from a limited political and legal agreement into a national myth. From seventeenth-century struggles against monarchical rule in England to various claims to rights for the oppressed around the world, the myth of Magna Carta has been invoked in causes associated with civil and human rights. Eleanor Roosevelt described the UN Universal Declaration of Human Rights as ‘the international Magna Carta’ (Holt 1965; Breay 2002; Melton and Hazell 2015; Jones 2014).
Natural rights
There is no direct line from medieval conceptions of ius to early modern conceptions of rights. The humanist lawyers of the Renaissance, for example, were concerned, not with natural rights, but with civil rights (Tuck 1979). However, medieval conceptions of natural law had the most influence on the modern concept of natural rights.
In the fourteenth century William of Ockham argued that all men knew intuitively that they had a natural power to make choices. Men possessed, therefore, certain liberties that could never be alienated to church or state, and they had a natural right to the necessities of life, and to consent voluntarily to the creation of a system of laws. Positive law was required to coerce fallen men when they did not act according to their natural knowledge of what was morally right. However, the social individual possessed certain inalienable rights and duties prior to any incorporation into a political system (Coleman 1993: 116–17; McGrade 1974).
