(1) Introduction and the Human Rights Idea

 Louis Henkin, The Age of Rights (1990)
 [p 42, Henkin]
 Contemporary human rights not grounded in natural law – declared as a matter of
positive law; further justification is rhetorical and not philosophical
 But what does the pattern of declared human rights amount to?
 Positive and negative rights of individuals in society
 Universal
 Rights in the strong sense {see Dworkin in Taking Rights Seriously}
 They imply the obligation of society to satisfy the claims
 Claims upon society
 e.g. Right not to be killed by wolves is not a right against wolves
But contra Henkin I would argue that the right not to be killed by neighbours is a claim both upon the
society and upon the neighbour (but a slightly different claim in each instance).

Not against society – rights are meant to be aligned with the long-term
good of the society, even if not for the government of the day
 They generally trump the public good
 Limitations on rights are strictly limited
In sum, the idea that the individual counts (and see above on claims upon
society)
Rights are essentially individual, not those of groups
Other kinds of rights: domestic rights; other ‘generations’ of rights
 [p 99, Henkin]
Rights less universal across time than rhetoric suggests – religion particularly
problematic
 Religions tend to address rights only as a beneficiary of the right to religious
freedom
 Religions generally generate responsibilities and duties, not rights
 Similarly, communitarianism
 Today religions tend to embrace rights but continue to reject human rights as
a total ideology – the idea of rights as a floor
True socialism is actually ideologically compatible with rights
The idea of development has a difficult relationship with human rights – many
argue that the public good of economic development can justify compromising
human rights
 But development is unlike an emergency – it is a long-term, pervasive,
comprehensive program in which individual rights have to be integrated, not
one that can be used as basis for disregarding them
 The common assumption that one must choose between societal development
and individual rights (of any kind or degree) has not been proven
The idea of rights is not a complete, all-embracing ideology – it is not in fact in
competition with other ideologies
Textbook:
 Conflicts between religion and human rights are particularly salient when
religious law receives official sanction from the state
 Religious objections to the whole modern system of international cooperation
have become a source of violent conflict:






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Osama bin Laden argued that international human rights.g. human rights was a domestic constitutional idea recognised in very few countries  But the traditional attitude that how a nation treats its own inhabitants is its own affair dies hard  Louis Henkin. Bible stressed duties (of which people may be the beneficiaries). explicit presumption of innocence. concern for individual welfare could not spill over state borders except in ways and by means consistent with the assumptions of that system:  When a state identified with inhabitants of other states on recognised grounds. rational. In one of his post-9/11 videos. democratic  They added/substituted a social contract basis for divine rights  Did revolutionaries have the right to bind future generations? American founding fathers were not philosophers – not really concerned with this kind of question  Rights can be traced back to Locke and then Magna Carta. also more enlightened for the time (e. French revolutions took natural rights and made them secular. offices open to talents.g. the UN and other secular laws were all diametrically opposed to religion  Louis Henkin. not rights  Can be regarded as synthesis of 18th-c thesis and 19th-c antithesis  American. universal. individual. American conception added separation of powers  US Constitution intended as blueprint for government. The Rights of Man Today (1978/1988)  Human rights a product of modern history  e. The Age of Rights (1990)  Before modern times. economic and social rights) The internationalisation of human rights  Until after WWII. harm principle. not charter of rights – Bill of Rights only added later  Original US Constitution did not include true equality between people  But happily also included no provision for suspension of government or emergency decrees  French Revolution probably more influential than US Constitution in spreading rights ideas around the world. and that identification threatened international order  Interventions due to pressure from domestic constituency with special affinity for interests of victims in the other country – and then treaties imposed on minor powers by major powers for fear that such interventions would occur otherwise  When the condition of individuals inside a country impinged on the economic interests of other countries  International prohibition of slavery because of competitive advantage produced by slavery  The post-WWII international human rights movement has two forms:  National/‘universalisation’ – human rights appearing in every national constitution  Transnational/‘internationalisation’ – human rights appearing in treaties and on the agendas of international organisations – human rights becoming of –2– .

international institutions may be more impartial when it comes to adjudicating domestic conflicts – ideas of conscious and unconscious bias  International institutions don’t have staying power – they can only look into the crisis of the day  Sovereignty? (Is this a positive value?) –3– .g.‘international concern’ and a proper subject for diplomacy. or refugees?  Recognised/granted by treaties?  Rights  Entitlements? Reflects corresponding obligations?  Rights are a relationship (see Hohfeld)  Do they have to be enforceable/adjudicatory in nature?  *NB Worth reading the translation of the French Declaration – pp 72–73  What are the benefits of human rights as a universal understanding?  Human rights allow individuals to challenge majority/state authority individually  Human rights create a sense of justice within society that can contribute to just outcomes  Human rights can create a sense of solidarity or cohesiveness in society  What are the costs of human rights?  Human rights as compromising democratic principles  Human rights mechanisms being prone to error  Human rights systems can be used by parties to confer undeserved legitimacy on certain positions or policies otherwise subject to moral/political objections  Human rights based on legal entitlement could displace other values such as charity or mercy  Development? (see Henkin)  One human rights claim often impinges on a contrary human rights claim – how to strike a balance?  Costs of international human rights  Existing international institutions have defects which could make their involvement counter-productive  [But is it worse that we have fallible international institutions adjudicating rights than having fallible national institutions doing so?]  Also. the rights of indigenous groups? The rights of women. freedom and limitations on government grew with socialist and other ideas to include a broader view of the obligations of society and government – such as welfare (see e. international institutions and international law  An important change took place during this process – what began as Western rights rooted in autonomy.g. children. FDR’s Four Freedoms speech) Class  Defining human rights:  Human  Inherent and universal?  How about e.

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