May 29, 2011, 5:30 pm
By MICHAEL BOYLANThis has been a year of uprisings. The series of popular revolts,
struggles and crackdowns by governments, which continue to this day,
began in Tunisia when protesters demanded the removal of president Zine
al-Abidine Ben Ali. The claims of the protesters were about the right
to eat (the cost of food), political corruption, freedom of speech and
basic political rights. Then came Egypt, as thousands flocked to Tahrir
Square in Cairo and elsewhere. Their demands were similar to those in
Tunisia. Both sets of protesters were successful: the leaders of both
countries fled. This was the first wave. It was largely peaceful.
Then the citizens of other countries became involved: Bahrain, Yemen,
Syria and Libya. The leaders in these countries were not content to
ride away into the sunset. They ordered their soldiers to fire live
ammunition into the crowds and imprison the ring leaders. Many were
killed. Col. Muammar el-Qaddafi set out a bloody counter-attack so
brutal that it prompted a United Nations and NATO military response.
The second wave has been violent.
Third wave countries such as Jordan, Oman and Kuwait also felt the
pressure of these events and have made a few changes in response to
mostly peaceful demonstrations (reminiscent of the Prague Spring in
1968).
Illustrations by Leif Parsons
Revolutions are based upon complaints. These complaints can arise
from practical concerns, like having food at an affordable price, or
from more theoretical or social concerns, such as being able to publicly
speak one’s mind. Both are grounded in an understanding of what people
ought to be able to enjoy as citizens of a country. This expectation
of fundamental entitlements is what we talk about when we talk about
human rights. But whether or not every person on earth has certain
rights just by virtue of being a person alive on the planet — a concept I
will refer to here as natural human rights — is a question of
some controversy. In these times, when new questions of rights,
complaints and subsequent conflicts seem to arise anew each week, it’s
worth knowing where we stand on the matter.
Philosophers and legal scholars have intensely debated this issue
over the past few decades. One important starting point for this
discussion is H.L.A. Hart’s controversial 1955 article, “Are There Any
Natural Rights?” The article argued that natural rights (what we
typically call human rights) were an invention of the European
Enlightenment, mere social constructions. This followed in the
footsteps of another legal positivist from the 19th century, John
Austin, in his very influential work, “Lectures on Jurisprudence.” For
Hart and Austin an examination of ancient European texts does not
uncover an actual word for either “rights” or “duties.” The absence of
these words means there is no operational concept of a right or a duty
(if all concepts require words to express them). If there is no
operational concept of right or duty, then such ideas did not exist
before the European Enlightenment.
If this argument is correct, then human rights were invented by
Locke, Hobbes, Rousseau, Kant and Hume, and are not “natural” or “true”
as such, but rather an arbitrary social construction that applies only
to societies that choose to adopt it — as they might choose to adopt
high-speed Internet access or a particular agricultural irrigation
strategy. Under this scenario the concept of natural human rights is
not a legitimate universal category by which to judge societal or
individual conduct.
Obviously, this is a very important question. International policy
would cease to be able to advocate universally for certain fundamental
rights — such as those set out in the United Nations’ Declaration of
Human Rights or the United States’ Bill of Rights and Declaration of
Independence or Liu Xiaobo’s “Charter08.” And of course, the idea that
NATO, France, the United States or any other country should intervene in
Libya would have never arisen. Instead, each nation would be free to
treat its citizens as it chooses, subject only to the rule of power.
Hitler would not have been wrong in carrying out the Holocaust, but only
weak because he lost the war. The logical result of such a position is
a radical moral relativism vis-à-vis various cultural anthropologies.
There are two avenues by which to address the truth of the natural
basis of human rights: (a) whether authors argued for human rights
before the European Enlightenment, and (b) whether there is a logical
basis for human rights that would demonstrate its applicability to all
people regardless of when it was recognized to be correct.
The first tack is too long to encompass here. I have argued for a moral basis of human rights in the Stoics; Henrik Syse has made a similar attempt by citing ancient Roman writers; and Alan Gewirth has suggested that the concept can be extracted from Aristotle. At the very least, there is at least a vibrant philological argument here.
The second case, it seem, is much more interesting. If it is true
that there is a logical, objective, concrete basis for human rights that
is not tied to time or place, then such an argument would be sufficient
to show that there are natural human rights. Now the candidates for
such a presentation can be put into two camps: the interest-based
approach and the agency-based approach. In the interest-based approach
(championed by Joseph Raz and James Griffin)
the critical question to ask is what conditions are necessary to ensure
minimal well-being among people in a society. The force of the
argument is that all people everywhere are entitled to at least a
minimum level of well-being and the liberties and goods necessary to get
them there.
The agency approach is rather different. It comes in two varieties. The first variety is capability theory (championed by Amartya Sen and Martha Nussbaum). In its simplest form this approach seeks to promote human agency
— roughly, the capacity for people to act —via public policy
strategies that promote individual liberty and opportunity to seek after
those goods that each person feels will promote his or her own human
flourishing. Agency is thus enhanced through social initiatives.
The second variety seeks to uncover the origins of agency itself —
what are the essential features that permit the execution of human
action? Under this account (championed by me
and Alan Gewirth, among others) particular goods are set out as
necessary for action. In my account they are put into a hierarchical
order, analogous to Maslow’s hierarchy of needs: the most basic needs
should be satisfied first for everyone before addressing other needs
(the claim for food and water by person X trumps the claim for a new car
by person Y). Policy decisions are made by comparing rights claims
made by various individuals and groups, and then ascertaining where each
falls in the hierarchy: primary claims trump lower-ranked claims. (This
also gives a strong defense for progressive taxation policy contra
those who think that taxes are a governmental larceny scheme.) Both the
interest approach and the agency approach operate under the assumption
that there are natural human rights that apply to every person on earth
from the beginning of homo sapiens existence on the planet (defended by
separate arguments).
There are, of course, other justifications of human rights that are not universalist but rather based upon conventional criteria such as general agreement (the Social Contract
approach). These depend either upon real people signing treaties in
the world as we know it (often multi-lateral agreements via
internationally recognized institutions such as the United Nations) or
they are hypothetical contract situations set in a fictional context
(such as John Rawls’ original position or John Locke’s Social Contract,
et al.). These foundations for human rights may be conceptually
appealing, but they are subject to variation according to the real
people involved or the particular philosopher or practitioner playing
out the scenario according to his or her vision of the good. The end
result will not be the universalism that is needed to fend off moral
relativism.
A second sort of objector to natural human rights claims comes from
the Peoples’ Republic of China and from one popular interpretation of
Islam. The basis of these claims derives from an historical
(conventional) view of the grounding of ethics in China and Islam.
In the case of China, the theorist is Confucius. In his very influential work, “Analects,” Confucius established two grounding points:
1. The essential unit of analysis is the community (a k a communitarianism)
2. The key values to be observed are ren (a virtue of care) and li (a virtue of balance presented through the metaphor of dance).
Both of these personal and civic virtues are relational. The
relation works this way: (a) there is a community and its existence is a
given historical fact that is not up for discussion; (b) there is an
individual and he or she is free to decide just how he or she might fit
into that community in a caring and balanced way (much of the modern
analysis of this comes from the work by Angle and Svensson). Individual
interpretations of the community standards are only welcomed if they
are supportive. Our care and personal balance are determined via an
understanding of community values. Each person’s individual liberty
consists of finding a way to fit his or her own life’s desires within
the confines of the community. Thus, the Chinese government says against
objections of the West: let us alone. We are working within the
confines of our own community-based standards that have existed since
Confucius wrote almost 2,500 years ago. We allow free expression within
the confines of this ethical construct.
In the second case we have the role of “umma” in Islam. Umma means
community in Arabic. The prophet Mohammad personally set out one
description of a community in his Constitution of Medina. In
Medina there were contentions among various religious groups over rights
and privileges. This was a severe problem because each group: Jews,
Muslims and indigenous religions wanted to dominate and set the agenda.
What Mohammad set out was a way to satisfy the claims of the disparate
religious groups that lived there within a contractarian framework so
that all might enjoy basic rights as citizens. Many in the Middle East
feel that the Constitution of Medina creates a blueprint of how
to address human rights concerns: create a political or social contract
that satisfies everyone’s negotiated needs and human rights claims.
Once this process has occurred, human rights emerge. They are
negotiated rights and not natural rights.
These are both challenging objections to natural human rights, and
they are both essentially the same. On the one hand, the social history
is setting the standard (one sort of convention) and on the other, a
political compromise among contending factions is based upon a
compromise of self-interests (another sort of convention). If these two
responses are correct, then there are no universal natural human
rights.
In contrast to these objections, I would contend that if all
communities or nations on earth enjoy the same sort of autonomy that
legitimates any action that they deem acceptable and can be sustained
for a period of time, then the moral relativists win. There are no
natural human rights, and the whole enterprise should be thrown into the
gutter. However, if communities are not self-justifying actors
(meaning that they must act within a higher moral structure), then the
conventional communitarian gambit fails and natural human rights exist
and demand that we recognize and implement them.
The way we think about the turmoil in the Middle East and North
Africa is also conditioned by the way we understand human rights. If
natural human rights exist, then the autocrats in charge that suppress
them are wrong and they should either create a constitutional monarchy
or a democratic republic. If natural human rights do not exist, then
the whole process is one of political negotiation that on the one hand
involves peaceful protests and on the other involves bloody civil war.
Our entire understanding of these events requires us to take sides. But
how can we do this?
I have a thought experiment that might help the reader decide what he
or she thinks is the correct position: imagine living in a society in
which the majority hurts some minority group (here called “the other”).
The reason for this oppression is that “the other” are thought to be
bothersome and irritating or that they can be used for social profit.
Are you fine with that? Now imagine that you are the
bothersome irritant and the society wants to squash you for speaking
your mind in trying to improve the community. Are you fine with that?
These are really the same case. Write down your reasons. If your
reasons are situational and rooted in a particular cultural context
(such as adhering to socially accepted conventions, like female foot
binding or denying women the right to drive), then you may cast your
vote with Hart, Austin and Confucius. In this case there are no natural
human rights. If your reasons refer to higher principles (such as the
Golden Rule), then you cast your vote with the universalists: natural
human rights exist. This is an important exercise. Perform this
exercise with everyone you are close to — today — and tell me what you
think.
Michael Boylan is a professor of philosophy at Marymount
University in Arlington, Va., and was a fellow at The Center for
American Progress in Washington, from 2007 to 2009. His major
theoretical work on these issues is “A Just Society” (2004). His most recent book is “Morality and Global Justice: Justifications and Applications” (2011).
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