User:AlasdairEdits/Philosophy of human rights
The Philiosophy of human rights includes debates on the existence, content, nature, universality, justification, and appropriate legal status of human rights [1]
Philosophies
[edit]Several theoretical approaches have been advanced to explain how and why human rights become part of social expectations.
One of the oldest Western philosophies on human rights is that they are a product of a natural law, stemming from different philosophical or religious grounds.
Other theories hold that human rights codify moral behavior which is a human social product developed by a process of biological and social evolution (associated with Hume). Human rights are also described as a sociological pattern of rule setting (as in the sociological theory of law and the work of Weber). These approaches include the notion that individuals in a society accept rules from legitimate authority in exchange for security and economic advantage (as in Rawls) - a social contract.
Natural rights
[edit]Natural law theories base human rights on a “natural” moral, religious or even biological order that is independent of transitory human laws or traditions.
Socrates and his philosophic heirs, Plato and Aristotle, posited the existence of natural justice or natural right (dikaion physikon, δικαιον φυσικον, Latin ius naturale). Of these, Aristotle is often said to be the father of natural law,[2] although evidence for this is due largely to the interpretations of his work by Thomas Aquinas.[3]
The development of this tradition of natural justice into one of natural law is usually attributed to the Stoics.[4]
Some of the early Church Fathers sought to incorporate the until then pagan concept of natural law into Christianity. Natural law theories have featured greatly in the philosophies of Thomas Aquinas, Francisco Suárez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, and John Locke.
In the Seventeenth century Thomas Hobbes founded a contractualist theory of legal positivism on what all men could agree upon: what they sought (happiness) was subject to contention, but a broad consensus could form around what they feared (violent death at the hands of another). The natural law was how a rational human, seeking to survive and prosper, would act. It was discovered by considering humankind's natural rights, whereas previously it could be said that natural rights were discovered by considering the natural law. In Hobbes' opinion, the only way natural law could prevail was for men to submit to the commands of the sovereign. In this lay the foundations of the theory of a social contract between the governed and the governor.
Hugo Grotius based his philosophy of international law on natural law. He wrote that "even the will of an omnipotent being cannot change or abrogate" natural law, which "would maintain its objective validity even if we should assume the impossible, that there is no God or that he does not care for human affairs." (De iure belli ac pacis, Prolegomeni XI). This is the famous argument etiamsi daremus (non esse Deum), that made natural law no longer dependent on theology.
John Locke incorporated natural law into many of his theories and philosophy, especially in Two Treatises of Government. Locke turned Hobbes' prescription around, saying that if the ruler went against natural law and failed to protect "life, liberty, and property," people could justifiably overthrow the existing state and create a new one.
The Belgian philosopher of law Frank Van Dun is one among those who are elaborating a secular conception[5] of natural law in the liberal tradition. There are also emerging and secular forms of natural law theory that define human rights as derivative of the notion of universal human dignity.[6]
The term "human rights" has replaced the term "natural rights" in popularity, because the rights are less and less frequently seen as requiring natural law for their existence.[7]
Social contract
[edit]The English philosopher Thomas Hobbes suggested the existence of a hypothetical social contract where a group of free individuals agree for the sake of the common good to form institutions to govern themselves. They give up some liberties in exchange for protection from the Sovereign. This led to John Locke's theory that a failure of the government to secure rights is a failure which justifies the removal of the government, and was mirrored in later postulation by Jean-Jacques Rousseau in his "Du Contrat Social" (The Social Contract).
International equity expert Paul Finn has echoed this view:
| “ | the most fundamental fiduciary relationship in our society is manifestly that which exists between the community (the people) and the state, its agencies and officials. | ” |
| — Paul Finn[8] | ||
The relationship between government and the governed in countries which follow the English law tradition is a fiduciary one. In equity law, a politician's fiduciary obligations are not only the duties of good faith and loyalty, but also include duties of skill and competence in managing a country and its people. Originating from within the Courts of Equity, the fiduciary concept exists to prevent those holding positions of power from abusing their authority. The fiduciary relationship between government and the governed arises from the governments ability to control people with the exercise of its power. In effect, if a government has the power to abolish any rights, it is equally burdened with the fiduciary duty to protect such an interest because it would benefit from the exercise of its own discretion to extinguish rights which it alone had the power to dispose of.[8]
Reciprocity
[edit]The Golden Rule, or the ethic of reciprocity states that one must do unto others as one would be treated themselves; the principle being that reciprocal recognition and respect of rights ensures that one's own rights will be protected. This principle can be found in all the world's major religions in only slightly differing forms, and was enshrined in the "Declaration Toward a Global Ethic" by the Parliament of the World's Religions in 1993.
Other theories of human rights
[edit]The philosopher John Finnis argues that human rights are justifiable on the grounds of their instrumental value in creating the necessary conditions for human well-being.[9][10] Interest theories highlight the duty to respect the rights of other individuals on grounds of self-interest:
| “ | Human rights law, applied to a State's own citizens serves the interest of states, by, for example, minimizing the risk of violent resistance and protest and by keeping the level of dissatisfaction with the government manageable | ” |
| — Niraj Nathwani in Rethinking refugee law[11] | ||
The biological theory considers the comparative reproductive advantage of human social behavior based on empathy and altruism in the context of natural selection.[12][13][14]
Human security is an emerging school of thought which challenges the traditional, state-based conception of security and argues that a people-focused approach to security is more appropriate in the modern interdependent world and would be more effective in advancing the security of individuals and societies across the globe.
Critiques of human rights
[edit]Philosophers who have criticized the concept of human rights include Jeremy Bentham, Edmund Burke, Friedrich Nietzsche and Karl Marx[citation needed]. A recent critique has been advanced by Charles Blattberg in his essay "The Ironic Tragedy of Human Rights." Blattberg argues that rights talk, being abstract, demotivates people from upholding the values that rights are meant to assert.[15] In his book After Virtue, Alasdair MacIntyre claimed the concept that all human beings have certain rights simply by virtue of being human was illogical, stated "the best reason for asserting so bluntly that there are no such rights is indeed of precisely the same type as the best reason which we possess for asserting that there are no witches and the best reason which we possess for asserting that there are no unicorns: every attempt to give good reasons for believing there are such rights has failed."[16]
Philosophies of human rights
[edit]| Rights |
|---|
 |
| Theoretical distinctions |
| Human rights |
| Rights by beneficiary |
| Other groups of rights |
|
Several theoretical approaches have been advanced to explain how and why human rights become part of social expectations.
One of the oldest Western philosophies on human rights is that they are a product of a natural law, stemming from different philosophical or religious grounds.
Other theories hold that human rights codify moral behavior which is a human social product developed by a process of biological and social evolution (associated with Hume). Human rights are also described as a sociological pattern of rule setting (as in the sociological theory of law and the work of Weber). These approaches include the notion that individuals in a society accept rules from legitimate authority in exchange for security and economic advantage (as in Rawls) - a social contract.
Natural rights
[edit]Natural law theories base human rights on a “natural” moral, religious or even biological order which is independent of transitory human laws or traditions.
Socrates and his philosophic heirs, Plato and Aristotle, posited the existence of natural justice or natural right (dikaion physikon, δικαιον φυσικον, Latin ius naturale). Of these, Aristotle is often said to be the father of natural law,[17] although evidence for this is due largely to the interpretations of his work of Thomas Aquinas[18].
The development of this tradition of natural justice into one of natural law is usually attributed to the Stoics.[19]
Some of the early Church fathers sought to incorporate the until then pagan concept of natural law into Christianity. Natural law theories have featured greatly in the philosophies of Thomas Aquinas, Francisco Suárez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, and John Locke.
In the Seventeenth century Thomas Hobbes founded a contractualist theory of legal positivism on what all men could agree upon: what they sought (happiness) was subject to contention, but a broad consensus could form around what they feared (violent death at the hands of another). The natural law was how a rational human being, seeking to survive and prosper, would act. It was discovered by considering humankind's natural rights, whereas previously it could be said that natural rights were discovered by considering the natural law. In Hobbes' opinion, the only way natural law could prevail was for men to submit to the commands of the sovereign. In this lay the foundations of the theory of a social contract between the governed and the governor.
Hugo Grotius based his philosophy of international law on natural law. He wrote that "even the will of an omnipotent being cannot change or abrogate" natural law, which "would maintain its objective validity even if we should assume the impossible, that there is no God or that he does not care for human affairs." (De iure belli ac pacis, Prolegomeni XI). This is the famous argument etiamsi daremus (non esse Deum), that made natural law no longer dependent on theology.
John Locke incorporated natural law into many of his theories and philosophy, especially in Two Treatises of Government. Locke turned Hobbes' prescription around, saying that if the ruler went against natural law and failed to protect "life, liberty, and property," people could justifiably overthrow the existing state and create a new one.
The Belgian philosopher of law Frank van Dun is one among those who are elaborating a secular conception[20] of natural law in the liberal tradition. There are also emerging and secular forms of natural law theory that define human rights as derivative of the notion of universal human dignity.[21]
The term "human rights" has replaced the term "natural rights" in popularity, because the rights are less and less frequently seen as requiring natural law for their existence.[22]
Social contract
[edit]The Swiss-French philosopher Jean-Jacques Rousseau suggested the existence of a hypothetical social contract where a group of free individuals agree for the sake of the common good to form institutions to govern themselves. This echoed the earlier postulation by Thomas Hobbes that there is a contract between the government and the governed - and led to John Locke's theory that a failure of the government to secure rights is a failure which justifies the removal of the government.
International equity[disambiguation needed] expert Paul Finn has echoed this view:
| “ | the most fundamental fiduciary relationship in our society is manifestly that which exists between the community (the people) and the state, its agencies and officials. | ” |
| — Paul Finn[23] | ||
The relationship between government and the governed in countries which follow the English common law tradition is a fiduciary one. In equity law, a politician's fiduciary obligations are not only duties of good faith and loyalty, but also include duties of skill and competence in managing a country and its people. Originating from within the Courts of Equity, the fiduciary concept exists to prevent those holding positions of power from abusing their authority. The fiduciary relationship between government and the governed arises from the governments ability to control people with the exercise of its power. In effect, if a government has the power to abolish any rights, it is equally burdened with the fiduciary duty to protect such an interest because it would benefit from the exercise of its own discretion to extinguish rights which it alone had the power to dispose of. [23]
Reciprocity
[edit]The Golden Rule, or the ethic of reciprocity states that one must do unto others as one would be treated themselves; the principle being that reciprocal recognition and respect of rights ensures that one's own rights will be protected. This principle can be found in all the world's major religions in only slightly differing forms, and was enshrined in the "Declaration Toward a Global Ethic" by the Parliament of the World's Religions in 1993.
Other theories of human rights
[edit]The philosopher John Finnis argues that human rights are justifiable on the grounds of their instrumental value in creating the necessary conditions for human well-being.[24][25] Interest theories highlight the duty to respect the rights of other individuals on grounds of self-interest:
| “ | Human rights law, applied to a State's own citizens serves the interest of states, by, for example, minimizing the risk of violent resistance and protest and by keeping the level of dissatisfaction with the government manageable | ” |
| — Niraj Nathwani in Rethinking refugee law[26] | ||
The biological theory considers the comparative reproductive advantage of human social behavior based on empathy and altruism in the context of natural selection. [27][28][29]
References
[edit]- ^ Nickel, James (2009). Zalta, Edward N. (ed.). "The Stanford Encyclopedia of Philosophy".
{{cite web}}:|contribution=ignored (help) - ^ Shellens (1959)
- ^ Jaffa (1979)
- ^ Sills (1968, 1972) Natural Law
- ^ van Dun, Frank. "Natural Law". Retrieved 2007-12-28.
- ^ Kohen (2007)
- ^ Weston, Burns H. "Human Rights". Encyclopedia Britannica Online, p. 2. Retrieved 2006-05-18.
- ^ a b Salevao (2005) p.76
- ^ Fagan, Andrew (2006). "Human Rights". The Internet Encyclopedia of Philosophy. Retrieved 2008-01-01.
- ^ Finnis (1980)
- ^ Nathwani (2003) p.25
- ^ Arnhart (1998)
- ^ Clayton, Schloss (2004)
- ^ Paul, Miller, Paul (2001): Arnhart, Larry. Thomistic Natural Law as Darwinian Natural Right p.1
- ^ Social Science Research Network (SSRN)
- ^ McIntyre, Alisdair "After Virtue" p. 69 Duckworth 1981
- ^ Shellens (1959)
- ^ Jaffa (1979)
- ^ Sills (1968, 1972) Natural Law
- ^ van Dun, Frank. "Natural Law". Retrieved 2007-12-28.
- ^ Kohen (2007)
- ^ Weston, Burns H. "Human Rights". Encyclopedia Britannica Online, p. 2. Retrieved 2006-05-18.
- ^ a b Salevao (2005) p.76
- ^ Fagan, Andrew (2006). "Human Rights". The Internet Encyclopedia of Philosophy. Retrieved 2008-01-01.
- ^ Finnis (1980)
- ^ Nathwani (2003) p.25
- ^ Arnhart (1998)
- ^ Clayton, Schloss (2004)
- ^ Paul, Miller, Paul (2001): Arnhart, Larry. Thomistic Natural Law as Darwinian Natural Right p.1