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There are no human rights, and belief in them is one with belief in witches and unicorns.

- Alisdair MacIntyre, After Virtue (1985) at 69 Do you agree with this quotation? In your opinion, are human rights legal or moral claims? Give reasons for your answer with reference to social contract theory. All your strength is weakness itself against the immortal, unrecorded laws of God1, said Antigone to the autocratic King Creon in Sophocles play in 422 BC, thus claiming there were laws, higher than the laws made by any individual that gave her certain inalienable rights that could be violated by force, but never taken away from her2. As per Donnelly, human rights are the rights one has simply because one is a human being. They are held universally by all human beings and are held universally against all other persons and institutions.3 This essay will argue, in contrast to Alisdair MacIntyre4, that human right do exist. It will endeavour to demonstrate the existence of such rights by providing examples of situations where, in the absence of codified legal rights, the basic rights of individuals have been upheld and if such rights have been violated, justice has been served. MacIntyre argues that the basic rights, such as life, liberty and the pursuit of happiness simply do not exist.5 The underlying basis for his argument is that the existence of such rights cannot be demonstrated the same way that the existence of unicorns and witches cannot be demonstrated.6 As per Ronald Dworkin7, to whom MacIntyre refers, the problem with any such argument is that, it utilises a controversial thesis of general philosophy8 and there is no
Elaine Pagels, Human Rights: Legitimizing a Recent Concept in Kirsten Sellars, The Rise and Rise of Human Rights (Sutton Publishing Limited 2002) 2 Kirsten Sellars, The Rise and Rise of Human Rights (Sutton Publishing Limited 2002) 3 Jack Donnelley, Universal Human Rights in Theory and Practice 1 4 Henceforth Macintyre" 5 Alasdair MacIntyre, After Virtue: A Study in Moral Theory (Duckworth 1981) 69 6 ibid 7 Henceforth, Dworkin 8 Ronald Dworkin, Taking Rights Seriously (Harvard 1977) 81
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reason to accept it as part of a general theory of truth and there is good reason to reject its specific application.9 This essay contends that while it is theoretically impossible to demonstrate the existence of something intangible, such as the principle or concept of human rights, it is indeed possible to demonstrate the existence of the rights itself. At the outset, it must be stated that human rights is the modern term for what were previously called the rights of man, which in itself was a replacement for the original term, natural rights.10 While it may appear as though the concept of human rights is as old as civilisation itself11, in reality, human rights are a relatively modern concept. John Locke12, who lived in the time of the English Revolution, was the first to argue that men have a natural right to life, liberty and property13. These rights were again mentioned in the American Declaration of Independence in 1776, which reads, 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 Happiness14. Just thirteen years later, during the French Revolution, the French National Assembly passed the Dclaration des droits de l'Homme et du Citoyen15, which set forth the natural, unalienable, and sacred rights of man16. The very first article of this Declaration read, Men are born and remain free and equal in rights. 17 , which quite simply asserted the supremacy of the rights of all human beings18. The idea of human rights was instrumental in the above struggles and revolutions of the seventeenth and eighteenth centuries.19


Ronald Dworkin, Taking Rights Seriously (Harvard 1977) 81 Maurice Cranston, Are There Any Human Rights? [1983] 112 Daedalus 1, 1 11 Sellars (n 2) 12 Henceforth Locke 13 th MDA Freeman, Lloyds Introduction to Jurisprudence (7 edn, Sweet and Maxwell 2001) 145 14 The United States Declaration of Independence available at http://www.archives.gov/exhibits/charters/declaration_transcript.html accessed 16 January 2012 15 The Declaration of the Rights of Man and of the Citizen available at http://avalon.law.yale.edu/18th_century/rightsof.asp accessed 16 January 2012 16 ibid 17 ibid 18 Sellars (n 2) 19 Cranston (n 10) 2
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Jeremy Bentham 20 categorically dismissed the claims made in the above declarations, stating such rights were nonsense, rhetorical nonsense and nonsense upon stilts. 21 Bentham further contended that real rights could come only from real laws, whereas the law of nature gave rise to merely imaginary rights. 22 Edmund Burke 23 , criticised the French Declaration and called the notion of human equality a monstrous fiction and argued that inequality in human beings could never be removed.24 Human rights came into prominence on the world stage only during the Second World War25, primarily because of the Holocaust26. Prior to this, they were rarely discussed in international politics and were considered to be a sovereign, domestic matter.27 With the exception of legal instruments against slave trade28, there existed no legal instruments that protected human rights. It is disturbing that all the atrocities committed by Hitler during 1930s and 40s were in fact legal. There were no laws in Germany prohibiting the mass murder of a particular race of people and on the contrary, there existed laws that authorised the extermination of Jews. In 1943, with victory in sight, the Allied Forces issued the Moscow Declaration29, which stated that war criminals would be taken back to the scene of their crimes and judged on the spot by the peoples whom they have outraged.30 It went on to state that in cases where it was not possible to pinpoint the geographical location of the crime, the perpetrators would be punished by joint decision of the Allies.31 This declaration highlighted the lack of any human rights related laws and following the War the war criminals were prosecuted at the Nuremberg War Crimes Trials, under the charge crimes
Henceforth Bentham J. Bowring, The Works of Jeremy Bentham Vol. II (William Tait 1843) 501 22 ibid 523 23 Henceforth Burke 24 Edmund Burke, Reflections on the Revolution in France (Stanford University Press 2001) 25 Jack Donnelley, International Human Rights (2 edn Westview Press 1998) 3 26 ibid 4 27 ibid 3 28 th In the 19 Century, several Governments across the world abolished slave trade. 29 The Moscow Declaration available on http://avalon.law.yale.edu/wwii/moscow.asp accessed 16 January 2012 30 ibid 31 ibid
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against humanity.32 The Allies were forced to go into these trials not with solid legal arguments, but with their moral sensibilities.33 Despite the fact that all the laws invoked against the criminals were applied with a retrospective effect, a majority of them were found guilty and either executed or sent to prison. This clearly demonstrates the existence of human rights, as a set of omnipresent rights that every individual possesses by simply being a human being. There are of course other examples, which this essay does not discuss in detail, such as that of apartheid in South Africa, which prove the very same. Legal Claims or Moral Claims: This essay agrees with Maurice Cranston34, who argues that human rights are the moral rights of all people in all situations. According to him, a human right is something that everybody has by virtue of being a human being. He quotes Jacques Maritain35, The human person has rights because of the fact that it is a person, a whole, a master of itself (these rights) are owed to a man because of the very fact that he is a man.36 It can be said that natural rights are conferred by natural law, and in saying so, one is saying that there exist inherent qualities or features in human beings nature, that entitles them to rights that are different from those owed to animals.37 Cranston argues that natural rights can be seen in claims that every human naturally makes, such as not wanting to die a violent death or to be injured.38 A claim to a right is a powerful demand for action that brings into play an array of special social practices that we as humans indulge in.39


32 33

Donnelley (n 25) 5 ibid 34 Henceforth Cranston 35 Henceforth Maritain 36 Cranston (n 10) 37 Cranston (n 10) 15 38 Cranston (n 10) 15 39 Donnelley (n 1) 10

HLA Hart40 argues that people speak of their moral rights primarily when advocating their codification.41 He further argues the very concept of a right belongs to a branch of morality which is specifically concerned to determine when one persons freedom may be limited by anothers and so to determine what actions may appropriately be made the subject of coercive legal rules42 In essence, Hart considers that some natural rights serve as the parents of law, by motivating and inspiring specific legislations.43 Amartya Sen44 argues that despite Hart not making any mention of human rights in his article, the reasoning about the role of natural rights as the parents of law can be applied in the concept of human rights.45 He further argues that there is little doubt that human rights have often served as a basis for new legislation46, thereby giving credence to theory that human rights are in fact moral claims. In other words, human rights are claims which individuals possess to demand action. For example, an individual or group of individuals who have been imprisoned without charge in an oppressed state possess a moral claim to the right of liberty. They can claim this right, thereby demanding that they be released. Donnelley has provided the example of the right not to be discriminated against on the basis of race.47 According to him, in the United States, this right can always be claimed as a constitutional right. But depending on the situation, it can also be claimed as a federal statutory right; a state or local statutory right; a customary international legal right; or even a contractual right. 48 So therefore, if an American is faced with racial discrimination, he or she can seek redress through any of the aforementioned statutory or constitutional rights,49 thereby invoking his or her moral claim to the human right against racial discrimination. Donnelley further argues that typically, one only has direct recourse to human rights claims once all other
Henceforth Hart HLA Hart, Are There Any Natural Rights? [1964] 64 Philosophical Review 175 42 ibid 43 Amartya Sen, Elements of a Theory of Human Rights [2004] 32 Philosophy & Public Affairs 315 44 Henceforth Sen 45 Sen (n 43) 46 Sen (n 43) 47 Donnelley (n 3) 12 48 ibid 49 Donnelley (n 3) 13
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remedies have been exhausted.50 He also argues that the special function of human rights virtually requires that they be claimed precisely when they are unenforceable by ordinary legal or political means.51 Donnelley cites the example, yet again, of the United States where homosexuals must claim a human right against discrimination, because constitutional and statutory rights against discrimination do not apply to sexual preference, unless the statute explicitly says so.
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This once again

demonstrates that a human right is a moral claim rather than a legal one, reenforcing the argument that human rights act as a parent to other laws and it is the absence of such laws that lead citizens to claim them as moral rights. In other words, human rights based demands for legal rights involve a moral entitlement to the right in question.53 When an individual is systematically denied their human rights, it puts them in a position to launch a powerful moral attack on the offending institution.54 This essay firmly agrees with Locke and his theory of social contract, wherein he argued that all human beings are born with the natural rights to freedom and equality, but in the state of nature, enjoyment of these rights can be insecure.55 And indeed, according Thomas Hobbes56, the strongest man on earth can easily be killed in his sleep.57 It is sometimes argued that it is this insecurity and vulnerability that pushes man into being a social animal, for man must live under a system of rules that guarantees peace for himself and his neighbours.58 Therefore, according to Locke, society and the State exist to guarantee the enjoyment of these rights and a government is legitimate only


50 51

ibid ibid 52 Donnelley (n 3) 13 53 Donnelley (n 3) 15 54 ibid 55 Donnelley (n 3) 90 56 Henceforth Hobbes 57 Cranston (n 10) 15 58 ibid

to the extent that it protects these rights.59 In other words, Government is a relation between rulers and free citizens.60 Locke states that the fundamental law of Nature is the preservation of mankind.61 Locke was one of many to use human rights arguments to rebel against oppression.62 Donnelley argues that while we have human rights by virtue of being humans, these rights are claimed primarily when they are violated or at risk. 63 Therefore, the assertion that human rights are moral claims fits in with Lockes theory of social contract. Cranston agrees with Jean-Jacques Rousseau 64 and argues that morality begins with human society and it is in society that man can make claims to moral entitlements.65 This essay agrees with Rousseau to the extent that society creates a duty not to injury ones neighbour and a right not to be injured by ones neighbours.66 This essay has argued, contrary to MacIntyre, that human rights do exist. It has provided examples of the same and argued that human rights can be understood as universal moral rights, which arise from the claims that man naturally makes 67 . It has also argued, in line with Harts arguments, that human beings want to have their rights respected and strive to get them incorporated in a legal system68 , which adds weight to the assertion that human rights are moral rather than legal claims. While there is no doubt that most human rights today exist as legal rights in various international human rights legislations such as the European Convention on Human Rights69 and domestic legislations such as the Human Rights Act70, it must be noted that the rights contained in these legislations are rarely invoked in their actual
Donnelley (n 3) 90 Martin Loughlin, Sword & Scales (OUP 2000) 163 61 Freeman (n 13)147 62 Donnelley (n 3) 105 63 ibid 64 Henceforth Rousseau 65 Cranston (n 10) 15 66 Cranston (n 10) 16 67 Cranston (n 10) 16 68 Sen (n 43) 69 European Convention on Human Rights available at http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B4575C9014916D7A/0/CONVENTION_ENG_WEB.pdf accessed on 16 January 2012 70 Human Rights Act 1998
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form. In reality, the rights are invoked are the so-called lower71 rights which arise directly from the enactment of human rights.

Bibliography
Books: Bowring J, The Works of Jeremy Bentham Vol. II (William Tait 1843) Burke E, Reflections on the Revolution in France (Stanford University Press 2001) Donnelley J, Universal Human Rights in Theory and Practice Donnelley J, International Human Rights (2 edn Westview Press 1998) Dworkin R, Taking Rights Seriously (Harvard 1977)
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Donnelley (n 3) 13

Freeman MDA, Lloyds Introduction to Jurisprudence (7th edn, Sweet and Maxwell 2001) Loughlin M, Sword & Scales (OUP 2000) MacIntyre A, After Virtue: A Study in Moral Theory (Duckworth 1981) Sellars K, The Rise and Rise of Human Rights (Sutton Publishing Limited 2002) Declarations: The Declaration of the Rights of Man and of the Citizen available at http://avalon.law.yale.edu/18th_century/rightsof.asp accessed 16 January 2012 The Moscow Declaration available on http://avalon.law.yale.edu/wwii/moscow.asp accessed The United States Declaration of Independence available at http://www.archives.gov/exhibits/charters/declaration_transcript.html accessed 16 January 2012 Journal Articles: Cranston M, Are There Any Human Rights? [1983] 112 Daedalus 1 Hart HLA, Are There Any Natural Rights? [1964] 64 Philosophical Review Sen A, Elements of a Theory of Human Rights [2004] 32 Philosophy & Public Affairs

Statutes: European Convention on Human Rights available at http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B4575C9014916D7A/0/CONVENTION_ENG_WEB.pdf accessed on 16 January 2012 Human Rights Act 1998