Human Rights Universalism and its Critics - Essay Example

Human Rights Universalism and its Critics February 11, 2007 Upon his reflections of American foreign policy towards the end of his life, George F. Kennan admitted that he found himself "wishing that there were a bit more of morality in our concepts of what is legal, and more attention to legality in our concepts of what is moral, than I see around me at this time" (Kennan, 1985, p. vii). What the career diplomat and architect of Cold War policy for the United States and her Western allies had in mind was a greater respect and advocacy of human rights, in addition to the justifications for war and peace. Human rights, needless to say, is an imperative subject in terms law, the state of nature, morality and ethics and the very being of man and his interactions with other humans. What human rights are, in a general and sweeping definition, are to defend people from "severe political, legal and social abuses." This is done in order for people to secure the necessary conditions of leading a minimally good life (Nickel et. al.: 2006, p.1, Nickel 1992, 561). From the dawn of civilization and community, the powers and limits of such powers of the governing body, groups and individuals have developed throughout the course of human history from being relegated in domestic societies to become more broadened and expanded throughout the entire world in the modern age. This was done in part to restrain human passions and actions from harming one another and to defend basic preservation of life, in what Jean Jacques Rousseau categorised as the social contract. Throughout human evolution, these rights have become more expansive and perceived to be universal in their definition and application. These rights were derived from Western historic and contemporary norms, and faced criticism and defence to the universality of such rights. Critics debate that human rights definitions were Western creations and Western attempts at Westernising legal, social and moral faculties. In addition to this, critics have also noted that the universality of such human rights conceptions are in fact false, and that rights themselves are subject to relativity and conditionality. I) Western Rights Discourse The doctrine of human rights rests on a fundamental philosophical postulate that human rights are predicated upon a moral order based in reason that surpasses social and historical conditions and is applied universally to all human beings everywhere, at all times. This makes these moral claims objectively validated as inherent truths. This, in turn, necessitates the inclusion that the individual is the barer of natural rights and that teach individual's rights are equal in their moral value of each and every rational individual. The origins of moral universalism of human rights in Western thought are traced to the writings of Aristotle and the Roman Stoics. Natural order and law provides an objective and universal standards that legitimise socially constructed legal systems. Aristotle argued that "the natural is that which as the same validity everywhere and does not depend upon acceptance" (Aristotle, Nicomachean Ethics, 189). Hence, the requisites for a reasonable judicial system preceded socially and historically constructed conventions. Roman Stoics such as Cicero and Seneca expounded upon this principle and further attributed the source of natural law as the will of God and a heavenly city where natural and moral law derived from and transcended local legal codes. The contemporary conception of human rights is more clearly detailed during the Enlightenment during the 17th and 18th centuries in Europe. As Aristotle and the Stoics expounded that natural law preceded social and historical conventions, Enlightenment philosophers expanded the universality of natural law irrespective of any given political rule or assembly, whether they be monarchies, oligarchies, republics or otherwise. John Locke outlined this in his Second Treatise of Civil Government. (1688). The centrepiece of Locke's claim is that individuals possess natural rights that is independent upon political recognition or what rights and mandates recognised by the state. Natural law originated from God. Thus, man had a duty of self-preservation to God, and in order to achieve this man needed to be free from threats of liberty, life and property. Locke argued the state of nature possess "a law of nature to govern it, which obliges everyone, and reason, which is that law, teaches all mankind who will but consult it, that being all equal and independent, no one ought to harm another in his life, liberty or possessions" (Locke, 1688 p. 9). Locke went further than his predecessors and articulated what some of these rights were, such as the protection of one's right to life, liberty and the pursuit and protection of private property. Such rights are negative rights, or rights to be free of oppression or hinderance by the government or any group of individuals. There are universal in regards that all citizens have them equally and no citizen's rights are more or less important than their fellow citizen. The Bill of Rights in the United States Constitution and the Human Rights Act of 1998 in the United Kingdom recognize many negative rights for their citizenry. The second article of the Human Rights Act states "everyone's right to life shall be protected by law" (Human Rights Act 1998: Article II). The U.S. Declaration of Independence, which is assumed to be implicit in the Constitution states "We hold these truths to be self-evident that all men are created equal and are endowed by their Creator with certain unalienable rights; that among these are life liberty and the pursuit of happiness," as a group of colonies declared a breach of their allegiance and bonds to the British monarchy (Declaration of Independence: Brown, 2000, p. 170). The Eight Amendment of the U.S. Constitution states that no one shall be inflicted with "cruel and unusual punishments" and the Human Rights Acts similarly prohibits torture, that no one shall "be subjected to torture or inhumane or degrading treatment or punishment" (Constitution of the United States: Amendment VIII, Human Rights Act 1998: Article III). Locke can be attributed to the establishment of civil society grounded in the foundation of unalienable rights, but the theoretical basis of human rights requires a moral justification that is consistent with the concept of rights and yet avoids the requisite appeal to a supernatural entity, such as God. 18th century philosopher Immanuel Kant modernized modern conceptions of universal human rights. Instead of deriving the source of rights and natural law from an omnipresent God or gods, Kant articulated the ideal of equality and the autonomy of rational human beings. Since man was able to reason, this set him apart from other animals, thusly justifying his dignity and rights. Rather than basing morality on goods, Kant justified morality on the formulation of rational principles, irrespective of any individual's specific, partial and conditions ends, and the principles of reasoning can be equally applied to all rational individuals. One's own did not determine righteousness and justice interests and goals, but rather by acting to maxims that all rational individuals have accepted or are bound to accept. This was his categorical imperative where individuals "act only on that maxim through which you can at the same time will that it should become universal law" (Kant, 1797, p. 82-84). With the rational moral basis of humankind, human rights theory now became fully justifiable and universal. In contemporary terms, H.L.A Hart argues on similar terms for moral rights. The basis for moral rights is not merely just logical correlatives of duties and obligations of civil society, but require special justification. This justification that grounds moral rights is the natural right of freedom (Hart; 1955 p. 188-190). The progression of modern contemporary theorists of human rights elaborated on the works of Locke, Kant and others. Where Locke established political systems founded upon universal human rights, and Kant reconciled the basis of such rights to be steeped in the rational faculties of man, John Rawls postulated justice as fairness and equality of the application and distribution of rights. He focuses on how major political and social institutions in society and how they "distribute fundamental rights and duties and determine the advantages from social cooperation" (Rawls, Justice as Fairness 1996, p. 6). To achieve justice as fairness, civil society must be governed by two principles. The first is that each person has the "same indefeasible claim to a fully adequate scheme of equal basic liberties for all." And the second requisite is that socioeconomic inequalities must satisfy that these inequalities are to be "attached to offices and positions open to all under conditions of fair equality of opportunity andthey are to be the greatest benefit of the least-advantaged members of society" (Ibid, p. 15). It is imperative to notice that Rawls listed these conditions in terms of priority. His equal basic liberties principle must first be satisfied before the second. The first principle is the universal justification of rights for all citizens. The second principle is of peculiar importance because it addresses the plight of the lower classes within a civic society and what rights and dignities they should receive. Ronald Dworkin elaborated a more expansive egalitarianism of rights and argues for a greater equality of resources in addition to liberties. Government must be active in not only the prevention of tyranny and interventions into life, liberty and property, but in the general welfare of the citizenry. Government must proactively engage in the betterment of people's lives. He argues that "no government is legitimate that does not show equal concern for the fate of all citizens over whom it claims dominion and from whom it claims allegiance. Equal concern is the sovereign virtue of political communitya citizen's wealth massively depends upon which laws his community has enactedits welfare laws, tax law, labour law, civil rights law, environmental regulation law" (Dwokin 2001, p. 1-2). Dworkin believes that Rawls and liberal theorists before him underemphasised the ethical foundations of obtaining the minimal good life. Dworkin calls for an array of general ethics or comprehensive liberalism that is based upon two principles. The first is the equal important principle where every human life ought to be successful, and the second is the principle of special responsibility where each individual holds the ultimate responsibility in securing a successful life for his or her own (Dworkin, 2000 p. 5). While civil society and government maintain a paramount importance in securing the general welfare of its citizenry, the citizen him or herself is also securing the best means possible for their own lives. With the expansion of liberal egalitarian doctrines, moral rights not only included negative rights, as endowed in the Human Rights Act of 1998 and the U.S. Constitution, but they also include positive rights. Positive rights are duties that the society is supposed to grant and enable for individuals. The United Kingdom Education Act of 1944 mandated that the government provides adequate education for all of the nation's citizens. The Universal Declaration of Human Rights (UDHR), ratified by the member states of the United Nations includes negative rights, such as the right to life and freedom of expressions., but also includes positive rights such as a right to leisure and the right to an adequate standard of living and economic sustainability (UDHR: Article 24 & Article 25). The UDNR became the base for the European Convention of Human Rights, which again includes many negative rights from protection of life and property to due process, but , like the UDHR, includes some positive rights and governmental duties. The Convention maintains that all persons shall "not be denied the right of education" (European Convention of Human Rights, Protocol I, Article II). In addition, there are the rights of leisure and travel, and the right to health and wellness. The UDHR and Convention are truly universal statements for they apply to all individuals within those body memberships, irrespective of national origin and citizenship, creed, ethnicity, gender, cultural value or age. Philosophical justification for human rights necessitates the commitment to some version of moral universalism that is applicable for all peoples everywhere at every time. With the foundations of human rights being proclaimed as universal, critics have lambasted this assumption of being void of conditional factors and variables that negates the universality of human rights law. At the very core, relativists charge that universally valid truths cannot and do not exist. Morality, ideologies and practices are predicated on socially and historically conditional constructs throughout the course of human events and cite numerous examples of cultural difference that have existed or currently existed in the world. Such societal constructs vary from each community's ideals and sentiments. Multiculturalists, who are an amalgamation of many diverse groups that hold no set goals and principles as a collective whole, criticise universal moral rights are in fact cultural imperialism or Western assimilation, and that advocates of such hold a tendency that there is only one correct and true set of principles of morality and rights (Parekh, 2000, p. 1). Each culture has its own set of norms, and an universal approach to human rights may undermine or misrepresent that culture's ability of self-determination. For example, Western societies maintain that women are free to dress in a freer sense than their counterparts in the Muslim world. Western universalism typically condemns the veiling of Muslim women as repressive and unequal. Whereas the Muslims invoke the morality as prescribed in the Quran and other holy scriptures of Islam morality. Egyptian jurist Qasim Amin, who is noted for promoting greater women's rights in the Arab world, also explained that the veil plays an important role in Muslim society. He wrote that he still defends the use of the veil and "consider it one of the cornerstones of morality. I would recommend however, that we adhere to its use according to Islamic law" (Amin 1992, p 35). Similarly, during the debates within the United Nations about the Human Rights Commission, many Asian member states protested that the human rights norms that were outlined in the 1948 Universal Declaration of Human Rights did not include their consensus as then colonial possession or reflected communal and "Asian Values" in the Declaration. However, many Multiculturalists hold more issue with the racial and ethnic exclusion in liberal society, as opposed to a countervailing ideology to universal liberal human rights theory. To them the problem is that the practice of exclusionary ethnic politics undermines the ideals of equality and universalism that liberalism sought to inspire. Richard Rorty (1993) further argued on the relativist nature of human rights because such rights are not based on reason and are impossible to be based on reason. Rorty believed that moral rights rests within an appeal to sympathetic sentiments towards other people and their plights. Since sentiments are based on emotions and feelings, and assumes that emotions and reason are independent and isolated, moral rights cannot be defended upon rational merits. Michael Freeman criticised Rorty confuses motivation with justification for moral rights, and that the basis of emotions depends on the reasons for the actions (Freeman, 2002 p. 56). It is necessary to comment that Rorty himself did not argue that human rights itself is a bad thing or a wrong thing just because they are based in emotions. Relativist and multiculturalist criticisms of universal moral rights notwithstanding, utilitarianism, which is derived from liberalism, asserts that there are only so many resources and abilities to go around in a society. Due to these limits, maximum utopian happiness and the good life may not always be obtainable. While there might be material limits to society, utilitarians still expound a universal moral code in which we should act and in which we deserve. Utilitarianism attempts to measure happiness or goodness, as opposed to classifying an action as its own isolated deed. Civil societies duty is to maximize the greatest amount of good to the greatest number of people. J. S. Mill was one of the first philosophers to argue the doctrine of utilitarianism and the greatest happiness principle. Mill's utilitarianism standard is "not the agent's own greatest happiness, but the greatest amount of happiness altogether" (Mill, 1861, p .9). Cotemporary utilitarian William Shaw further articulates that there are tow ideals that underlie utilitarianism. The first is that actions are the key to moral evaluation and the righteousness of the results are dependent on how much good and happiness such actions produce (Shaw, 1999, p. 2). The actions and results however are based on the universal edict that we should do good in the first place, because it is the morally right thing to do. It is an operational norm for human rights, as opposed to an explanation of the philosophical foundations of them. Human Rights theory has gone extensive evolutions that ultimately extended its universality and increased in what kind of rights all peoples deserve, whether it be from God, man's ability to reason or social and historical conventions. There is one underlying principle with each of these approaches, that there is a justification to uphold and defend a set principle of rights. Bibliographical References: Amin, Qasim. The Liberation of Women. (Cario: American University in Cario Press, 1992). Aristotle. The Nicomachean Ethics. Terence Irwin, trans. (Indianapolis: Hackett Publishing Co. 1999). Bill of Rights to the Constitution of the United States. National Archives and Records Administration. < http://www.archives.gov/national-archives- experience/charters/bill_of_rights_transcript.html>. Brown, Richard C. Major Problems in the Era of the American Reovultion 1760-1791: Documents and Essays, 2nd edition. (Boston: Houghton Mifflin, 2000). Dworkin, Ronald. Sovereign Virtue. (Cambridge, MA: Harvard University Press, 2000). European Convention on Human Rights, 1950. The Council of Europe. Hellenic Resources Network. http://hri.org/docs/ECHHR50.html#Convention. Freeman, Michael. Human Rights: An Interdisciplinary Approach (Cambridge: Polity, 2002). Hart. M.L.A. "Are There Any Natural Rights" Philosophical Review 64 (1955) p. 175- 191. Human Rights Act of the United Kingdom, 1998. Office of Public Sector Information, http://www.opsi.gov.uk/acts/acts1998/80042--d.htm. Kant, Immanuel. The Metaphysics of Morals, 1797. Mary McGregor ed. (Cambridge: Cambridge University Press 1996). Kennan, George F. American Diplomacy: Expanded Edition. (Chicago: University of Chicago Press, 1985). Locke, John. The Second Treatise on Civil Government, 1688. Reprinted (Amherst, NY: Prometheus Books, 1986). Mill, John Stuart. Utilitarianism 1861. Reprinted George Sher, ed., (Indianapolis: Hackett Publishing Co. 1979). Nickel, James L, et. al., "Human Rights" Stanford Encyclopaedia of Philosophy. (Stanford, CA: Stanford University 2006). Nickel, James L. Making Sense of Human Right: Philosophical Reflections and the Universal Declaration of Human Rights. (Berkeley: University of California Press, 1987). Parekh, Bhikhi. Rethinking Multicultrualism: Culture Diversity and Political Theory (Basingstoke: Palgrave, 2000). Rawls, John. A Theory of Justice. (Oxford: Oxford University Press, 1996). Rorty, Richard. "Human Rights, Rationality and Sentimentality" In S. Shute & S. Hurley eds., On Human Rights: The Oxford Amnesty Lectures 1993 (New York: Basic Books, 1993). Shaw, William. Contemporary Ethics: Taking Account of Utilitarianism (Oxford: Blackwell Publishers, 1999). Universal Declaration of Human Rights, 1948. The United Nations. http://www.un.org/Overview/rights.html>. Read More