Human Rights

This entry examines the philosophical basis and content of the
doctrine of human rights. The analysis consists of five sections and a
conclusion. Section one assesses the contemporary significance of
human rights, and argues that the doctrine of human rights has become
the dominant moral doctrine for evaluating the moral status of the
contemporary geo-political order. Section two proceeds to chart the
historical development of the concept of human rights, beginning with
a discussion of the earliest philosophical origins of the
philosophical bases of human rights and culminating in some of most
recent developments in the codification of human rights. Section three
considers the philosophical concept of a human right and analyses the
formal and substantive distinctions philosophers have drawn between
various forms and categories of rights. Section four addresses the
question of how philosophers have sought to justify the claims of
human rights and specifically charts the arguments presented by the
two presently dominant approaches in this field: interest theory and
will theory. Section five then proceeds to discuss some of the main
criticisms currently levelled at the doctrine of human rights and
highlights some of the main arguments of those who have challenged the
universalist and objectivist bases of human rights. Finally, a brief
conclusion is presented, summarising the main themes addressed.

1. Introduction: the contemporary significance of human rights

Human rights have been defined as

basic moral guarantees that people in all countries and cultures
allegedly have simply because they are people. Calling these
guarantees "rights" suggests that they attach to particular
individuals who can invoke them, that they are of high priority, and
that compliance with them is mandatory rather than discretionary.
Human rights are frequently held to be universal in the sense that all
people have and should enjoy them, and to be independent in the sense
that they exist and are available as standards of justification and
criticism whether or not they are recognized and implemented by the
legal system or officials of a country. (Nickel, 1992:561-2)

The moral doctrine of human rights aims at identifying the fundamental
prerequisites for each human being leading a minimally good life.
Human rights aim to identify both the necessary negative and positive
prerequisites for leading a minimally good life, such as rights
against torture and rights to health care. This aspiration has been
enshrined in various declarations and legal conventions issued during
the past fifty years, initiated by the Universal Declaration of Human
Rights (1948) and perpetuated by, most importantly, the European
Convention on Human Rights (1954) and the International Covenant on
Civil and Economic Rights (1966). Together these three documents form
the centrepiece of a moral doctrine that many consider to be capable
of providing the contemporary geo-political order with what amounts to
an international bill of rights. However, the doctrine of human rights
does not aim to be a fully comprehensive moral doctrine. An appeal to
human rights does not provide us with a fully comprehensive account of
morality per se. Human rights do not, for example, provide us with
criteria for answering such questions as whether telling lies is
inherently immoral, or what the extent of one's moral obligations to
friends and lovers ought to be? What human rights do primarily aim to
identify is the basis for determining the shape, content, and scope of
fundamental, public moral norms. As James Nickel states, human rights
aim to secure for individuals the necessary conditions for leading a
minimally good life. Public authorities, both national and
international, are identified as typically best placed to secure these
conditions and so, the doctrine of human rights has become, for many,
a first port of moral call for determining the basic moral guarantees
all of us have a right to expect, both of one another but also,
primarily, of those national and international institutions capable of
directly affecting our most important interests. The doctrine of human
rights aspires to provide the contemporary, allegedly
post-ideological, geo-political order with a common framework for
determining the basic economic, political, and social conditions
required for all individuals to lead a minimally good life. While the
practical efficacy of promoting and protecting human rights is
significantly aided by individual nation-states' legally recognising
the doctrine, the ultimate validity of human rights is
characteristically thought of as not conditional upon such
recognition. The moral justification of human rights is thought to
precede considerations of strict national sovereignty. An underlying
aspiration of the doctrine of human rights is to provide a set of
legitimate criteria to which all nation-states should adhere. Appeals
to national sovereignty should not provide a legitimate means for
nation-states to permanently opt out of their fundamental human
rights-based commitments. Thus, the doctrine of human rights is
ideally placed to provide individuals with a powerful means for
morally auditing the legitimacy of those contemporary national and
international forms of political and economic authority which confront
us and which claim jurisdiction over us. This is no small measure of
the contemporary moral and political significance of the doctrine of
human rights. For many of its most strident supporters, the doctrine
of human rights aims to provide a fundamentally legitimate moral basis
for regulating the contemporary geo-political order.
2. Historical origins and development of the theory and practice of human rights

The doctrine of human rights rests upon a particularly fundamental
philosophical claim: that there exists a rationally identifiable moral
order, an order whose legitimacy precedes contingent social and
historical conditions and applies to all human beings everywhere and
at all times. On this view, moral beliefs and concepts are capable of
being objectively validated as fundamentally and universally true. The
contemporary doctrine of human rights is one of a number of
universalist moral perspectives. The origins and development of the
theory of human rights is inextricably tied to the development of
moral universalism. The history of the philosophical development of
human rights is punctuated by a number of specific moral doctrines
which, though not themselves full and adequate expressions of human
rights, have nevertheless provided a number of philosophical
prerequisites for the contemporary doctrine. These include a view of
morality and justice as emanating from some pre-social domain, the
identification of which provides the basis for distinguishing between
'true' and merely 'conventional' moral principles and beliefs. The
essential prerequisites for a defence of human rights also include a
conception of the individual as the bearer of certain 'natural' rights
and a particular view of the inherent and equal moral worth of each
rational individual. I shall discuss each in turn.

Human rights rest upon moral universalism and the belief in the
existence of a truly universal moral community comprising all human
beings. Moral universalism posits the existence of rationally
identifiable trans-cultural and trans-historical moral truths. The
origins of moral universalism within Europe are typically associated
with the writings of Aristotle and the Stoics. Thus, in his
Nicomachean Ethics, Aristotle unambiguously expounds an argument in
support of the existence of a natural moral order. This natural order
ought to provide the basis for all truly rational systems of justice.
An appeal to the natural order provides a set of comprehensive and
potentially universal criteria for evaluating the legitimacy of actual
'man-made' legal systems. In distinguishing between 'natural justice'
and 'legal justice', Aristotle writes, 'the natural is that which has
the same validity everywhere and does not depend upon acceptance.'
(Nicomachean Ethics, 189) Thus, the criteria for determining a truly
rational system of justice pre-exist social and historical
conventions. 'Natural justice' pre-exists specific social and
political configurations. The means for determining the form and
content of natural justice is the exercise of reason free from the
distorting effects of mere prejudice or desire. This basic idea was
similarly expressed by the Roman Stoics, such as Cicero and Seneca,
who argued that morality originated in the rational will of God and
the existence of a cosmic city from which one could discern a natural,
moral law whose authority transcended all local legal codes. The
Stoics' argued that this ethically universal code imposed upon all of
us a duty to obey the will of god. The Stoics thereby posited the
existence of a universal moral community effected through our shared
relationship with god. The belief in the existence of a universal
moral community was maintained in Europe by Christianity over the
ensuing centuries. While some have discerned intimations towards the
notion of rights in the writings of Aristotle, the Stoics, and
Christian theologians, a concept of rights approximating that of the
contemporary idea of human rights most clearly emerges during the
17th. And 18th. Centuries in Europe and the so-called doctrine of
natural law.

The basis of the doctrine of natural law is the belief in the
existence of a natural moral code based upon the identification of
certain fundamental and objectively verifiable human goods. Our
enjoyment of these basic goods is to be secured by our possession of
equally fundamental and objectively verifiable natural rights. Natural
law was deemed to pre-exist actual social and political systems.
Natural rights were thereby similarly presented as rights individuals
possessed independently of society or polity. Natural rights were
thereby presented as ultimately valid irrespective of whether they had
achieved the recognition of any given political ruler or assembly. The
quintessential exponent of this position was the 17th. Century
philosopher John Locke and, in particular, the argument he outlined in
his Two Treatises of Government (1688). At the centre of Locke's
argument is the claim that individuals possess natural rights,
independently of the political recognition granted them by the state.
These natural rights are possessed independently of, and prior to, the
formation of any political community. Locke argued that natural rights
flowed from natural law. Natural law originated from God. Accurately
discerning the will of God provided us with an ultimately
authoritative moral code. At root, each of us owes a duty of
self-preservation to God. In order to successfully discharge this duty
of self-preservation each individual had to be free from threats to
life and liberty, whilst also requiring what Locke presented as the
basic, positive means for self-preservation: personal property. Our
duty of self-preservation to god entailed the necessary existence of
basic natural rights to life, liberty, and property. Locke proceeded
to argue that the principal purpose of the investiture of political
authority in a sovereign state was the provision and protection of
individuals' basic natural rights. For Locke, the protection and
promotion of individuals' natural rights was the sole justification
for the creation of government. The natural rights to life, liberty,
and property set clear limits to the authority and jurisdiction of the
State. States were presented as existing to serve the interests, the
natural rights, of the people, and not of a Monarch or a ruling cadre.
Locke went so far as to argue that individuals are morally justified
in taking up arms against their government should it systematically
and deliberately fail in its duty to secure individuals' possession of
natural rights.

Analyses of the historical predecessors of the contemporary theory of
human rights typically accord a high degree of importance to Locke's
contribution. Certainly, Locke provided the precedent of establishing
legitimate political authority upon a rights foundation. This is an
undeniably essential component of human rights. However, the
philosophically adequate completion of theoretical basis of human
rights requires an account of moral reasoning, that is both consistent
with the concept of rights, but which does not necessarily require an
appeal to the authority of some super-human entity in justifying human
beings' claims to certain, fundamental rights. The 18th. Century
German philosopher, Immanuel Kant provides such an account.

Many of the central themes first expressed within Kant's moral
philosophy remain highly prominent in contemporary philosophical
justifications of human rights. Foremost amongst these are the ideals
of equality and the moral autonomy of rational human beings. Kant
bestows upon contemporary human rights' theory the ideal of a
potentially universal community of rational individuals autonomously
determining the moral principles for securing the conditions for
equality and autonomy. Kant provides a means for justifying human
rights as the basis for self-determination grounded within the
authority of human reason. Kant's moral philosophy is based upon an
appeal to the formal principles of ethics, rather than, for example,
an appeal to a concept of substantive human goods. For Kant, the
determination of any such goods can only proceed from a correct
determination of the formal properties of human reason and thus do not
provide the ultimate means for determining the correct ends, or
object, of human reason. Kant's moral philosophy begins with an
attempt to correctly identify those principles of reasoning that can
be applied equally to all rational persons, irrespective of their own
specific desires or partial interests. In this way, Kant attaches a
condition of universality to the correct identification of moral
principles. For him, the basis of moral reasoning must rest upon a
condition that all rational individuals are bound to assent to. Doing
the right thing is thus not determined by acting in pursuit of one's
own interests or desires, but acting in accordance with a maxim which
all rational individuals are bound to accept. Kant terms this the
categorical imperative, which he formulates in the following terms,
'act only on that maxim through which you can at the same time will
that it should become a universal law.' (1948:84). Kant argues that
this basic condition of universality in determining the moral
principles for governing human relations is a necessary expression of
the moral autonomy and fundamental equality of all rational
individuals. The categorical imperative is self-imposed by morally
autonomous and formally equal rational persons. It provides the basis
for determining the scope and form of those laws which morally
autonomous and equally rational individuals will institute in order to
secure these very same conditions. For Kant, the capacity for the
exercise of reason is the distinguishing characteristic of humanity
and the basis for justifying human dignity. As the distinguishing
characteristic of humanity, formulating the principles of the exercise
of reason must necessarily satisfy a test of universality; they must
be capable of being universally recognized by all equally rational
agents. Hence, Kant's formulation of the categorical imperative.
Kant's moral philosophy is notoriously abstract and resists easy
comprehension. Though often overlooked in accounts of the historical
development of human rights, his contribution to human rights has been
profound. Kant provides a formulation of fundamental moral principles
that, though exceedingly formal and abstract, are based upon the twin
ideals of equality and moral autonomy. Human rights are rights we give
to ourselves, so to speak, as autonomous and formally equal beings.
For Kant, any such rights originate in the formal properties of human
reason, and not the will of some super-human being.

The philosophical ideas defended by the likes of Locke and Kant have
come to be associated with the general Enlightenment project initiated
during the 17th. and 18th. Centuries, the effects of which were to
extend across the globe and over ensuing centuries. Ideals such as
natural rights, moral autonomy, human dignity and equality provided a
normative bedrock for attempts at re-constituting political systems,
for overthrowing formerly despotic regimes and seeking to replace them
with forms of political authority capable of protecting and promoting
these new emancipatory ideals. These ideals effected significant, even
revolutionary, political upheavals throughout the 18th. Century,
enshrined in such documents as the United States' Declaration of
Independence and the French National Assembly's Declaration of the
Rights of Man and Citizen. Similarly, the concept of individual rights
continued to resound throughout the 19th. Century exemplified by Mary
Wollstencraft's Vindication of the Rights of Women and other political
movements to extend political suffrage to sections of society who had
been denied the possession of political and civil rights. The concept
of rights had become a vehicle for effecting political change. Though
one could argue that the conceptual prerequisites for the defence of
human rights had long been in place, a full Declaration of the
doctrine of human rights only finally occurred during the 20th.
Century and only in response to the most atrocious violations of human
rights, exemplified by the Holocaust. The Universal Declaration of
Human Rights (UDHR) was adopted by the UN General Assembly on 10th.
December 1948 and was explicitly motivated to prevent the future
occurrence of any similar atrocities. The Declaration itself goes far
beyond any mere attempt to reassert all individuals' possession of the
right to life as a fundamental and inalienable human right. The UDHR
consists of a Preamble and 30 articles which separately identify such
things as the right not to be tortured (article 5), a right to asylum
(article 14), a right to own property (article 17), and a right to an
adequate standard of living (article 25) as being fundamental human
rights. As I noted earlier, the UDHR has been further supplemented by
such documents as the European Convention for the Protection of Human
Rights and Fundamental Freedoms (1953) and the International Covenant
on Economic, Social and Cultural Rights (1966). The specific
aspirations contained within these three documents have themselves
been reinforced by innumerable other Declarations and Conventions.
Taken together these various Declarations, conventions and covenants
comprise the contemporary human rights doctrine and embody both the
belief in the existence of a universally valid moral order and a
belief in all human beings' possession of fundamental and equal moral
status, enshrined within the concept of human rights. It is important
to note, however, that the contemporary doctrine of human rights,
whilst deeply indebted to the concept of natural rights, is not a mere
expression of that concept but actually goes beyond it in some highly
significant respects. James Nickel ( 1987: 8-10) identifies three
specific ways in which the contemporary concept of human rights
differs from, and goes beyond that of natural rights. First, he argues
that contemporary human rights are far more concerned to view the
realization of equality as requiring positive action by the state, via
the provision of welfare assistance, for example. Advocates of natural
rights, he argues, were far more inclined to view equality in
formalistic terms, as principally requiring the state to refrain from
'interfering' in individuals' lives. Second, he argues that, whereas
advocates of natural rights tended to conceive of human beings as mere
individuals, veritable 'islands unto themselves', advocates of
contemporary human rights are far more willing to recognize the
importance of family and community in individuals' lives. Third,
Nickel views contemporary human rights as being far more
'internationalist' in scope and orientation than was typically found
within arguments in support of natural rights. That is to say, the
protection and promotion of human rights are increasingly seen as
requiring international action and concern. The distinction drawn by
Nickel between contemporary human rights and natural rights allows one
to discern the development of the concept of human rights. Indeed,
many writers on human rights agree in the identification of three
generations of human rights. First generation rights consist primarily
of rights to security, property, and political participation. These
are most typically associated with the French and US Declarations.
Second generation rights are construed as socio-economic rights,
rights to welfare, education, and leisure, for example. These rights
largely originate within the UDHR. The final and third generation of
rights are associated with such rights as a right to national
self-determination, a clean environment, and the rights of indigenous
minorities. This generation of rights really only takes hold during
the last two decades of the 20th. Century but represents a significant
development within the doctrine of human rights generally.

While the full significance of human rights may only be finally
dawning on some people, the concept itself has a history spanning over
two thousand years. The development of the concept of human rights is
punctuated by the emergence and assimilation of various philosophical
and moral ideals and appears to culminate, at least to our eyes, in
the establishment of a highly complex set of legal and political
documents and institutions, whose express purpose is the protection
and promotion of the fundamental rights of all human beings
everywhere. Few should underestimate the importance of this particular
current of human history.
3. Philosophical analysis of the concept of human rights

Human rights are rights that attach to human beings and function as
moral guarantees in support of our claims towards the enjoyment of a
minimally good life. In conceptual terms, human rights are themselves
derivative of the concept of a right. This section focuses upon the
philosophical analysis of the concept of a 'right' in order to clearly
demonstrate the various constituent parts of the concept from which
human rights emerges. In order to gain a full understanding of both
the philosophical foundations of the doctrine of human rights and the
different ways in which separate human rights function, a detailed
analysis is required.
a. Moral vs. Legal Rights

The distinction drawn between moral rights and legal rights as two
separate categories of rights is of fundamental importance to
understanding the basis and potential application of human rights.
Legal rights refer to all those rights found within existing legal
codes. A legal right is a right that enjoys the recognition and
protection of the law. Questions as to its existence can be resolved
by simply locating the relevant legal instrument or piece of
legislation. A legal right cannot be said to exist prior to its
passing into law and the limits of its validity are set by the
jurisdiction of the body which passed the relevant legislation. An
example of a legal right would be my daughter's legal right to receive
an adequate education, as enshrined within the United Kingdom's
Education Act (1944). Suffice it to say, that the exercise of this
right is limited to the United Kingdom. My daughter has no legal right
to receive an adequate education from a school board in Southern
California. Legal positivists argue that the only rights that can be
said to legitimately exist are legal rights, rights that originate
within a legal system. On this view, moral rights are not rights in
the strict sense, but are better thought of as moral claims, which may
or may not eventually be assimilated within national or international
law. For a legal positivist, such as the 19th. Century legal
philosopher Jeremy Bentham, there can be no such thing as human rights
existing prior to, or independently from legal codification. For a
positivist determining the existence of rights is no more complicated
than locating the relevant legal statute or precedent. In stark
contrast, moral rights are rights that, it is claimed, exist prior to
and independently from their legal counterparts. The existence and
validity of a moral right is not deemed to be dependent upon the
actions of jurists and legislators. Many people argued, for example,
that the black majority in apartheid South Africa possessed a moral
right to full political participation in that country's political
system, even though there existed no such legal right. What is
interesting is that many people framed their opposition to apartheid
in rights terms. What many found so morally repugnant about apartheid
South Africa was precisely its denial of numerous fundamental moral
rights, including the rights not to be discriminated against on
grounds of colour and rights to political participation, to the
majority of that country's inhabitants. This particular line of
opposition and protest could only be pursued because of a belief in
the existence and validity of moral rights. A belief that fundamental
rights which may or may not have received legal recognition elsewhere,
remained utterly valid and morally compelling even, and perhaps
especially, in those countries whose legal systems had not recognized
these rights. A rights-based opposition to apartheid South Africa
could not have been initiated and maintained by appeal to legal
rights, for obvious reasons. No one could legitimately argue that the
legal political rights of non-white South Africans were being violated
under apartheid, since no such legal rights existed. The systematic
denial of such rights did, however, constitute a gross violation of
those peoples' fundamental moral rights.

From the above example it should be clear that human rights cannot be
reduced to, or exclusively identified with legal rights. The legal
positivist's account of justified law excludes the possibility of
condemning such systems as apartheid from a rights perspective. It
might, therefore, appear tempting to draw the conclusion that human
rights are best identified as moral rights. After all, the existence
of the UDHR and various International Covenants, to which South Africa
was not a signatory in most cases, provided opponents of apartheid
with a powerful moral argument. Apartheid was founded upon the denial
of fundamental human rights. Human rights certainly share an essential
quality of moral rights, namely, that their valid existence is not
deemed to be conditional upon their being legally recognized. Human
rights are meant to apply to all human beings everywhere, regardless
of whether they have received legal recognition by all countries
everywhere. Clearly, there remain numerous countries that wholly or
partially exclude formal legal recognition to fundamental human
rights. Supporters of human rights in these countries insist that the
rights remain valid regardless, as fundamental moral rights. The
universality of human rights positively entails such claims. The
universality of human rights as moral rights clearly lends greater
moral force to human rights. However, for their part, legal rights are
not subject to disputes as to their existence and validity in quite
the way moral rights are. It would be a mistake to exclusively
identify human rights with moral rights. Human rights are better
thought of as both moral rights and legal rights. Human rights
originate as moral rights and their legitimacy is necessarily
dependent upon the legitimacy of the concept of moral rights. A
principal aim of advocates of human rights is for these rights to
receive universal legal recognition. This was, after all, a
fundamental goal of the opponents of apartheid. Human rights are best
thought of, therefore, as being both moral and legal rights. The
legitimacy claims of human rights are tied to their status as moral
rights. The practical efficacy of human rights is, however, largely
dependent upon their developing into legal rights. In those cases
where specific human rights do not enjoy legal recognition, such as in
the example of apartheid above, moral rights must be prioritised with
the intention that defending the moral claims of such rights as a
necessary prerequisite for the eventual legal recognition of the
rights in question.
b. Claim Rights & Liberty Rights

To gain an understanding of the functional properties of human rights
it is necessary to consider the more specific distinction drawn
between claim rights and liberty rights. It should be noted that it is
something of a convention to begin such discussions by reference to
W.N. Hohfeld's (1919) more extended classification of rights. Hohfeld
identified four categories of rights: liberty rights, claim rights,
power rights, and immunity rights. However, numerous scholars have
subsequently tended to collapse the last two within the first two and
hence to restrict attention to liberty rights and claim rights. The
political philosopher Peter Jones (1994) provides one such example.

Jones restricts his focus to the distinction between claim rights and
liberty rights. He conforms to a well-established trend in rights'
analysis in viewing the former as being of primary importance. Jones
defines a claim right as consisting of being owed a duty. A claim
right is a right one holds against another person or persons who owe a
corresponding duty to the right holder. To return to the example of my
daughter. Her right to receive an adequate education is a claim right
held against the local education authority, which has a corresponding
duty to provide her with the object of the right. Jones identifies
further necessary distinctions within the concept of a claim right
when he distinguishes between a positive claim right and a negative
claim right. The former are rights one holds to some specific good or
service, which some other has a duty to provide. My daughter's claim
right to education is therefore a positive claim right. Negative claim
rights, in contrast, are rights one holds against others' interfering
in or trespassing upon one's life or property in some way. My daughter
could be said to possess a negative claim right against others
attempting to steal her mobile phone, for example. Indeed, such
examples lead on to the final distinction Jones identifies within the
concept of claim rights: rights held 'in personam' and rights held 'in
rem'. Rights held in personam are rights one holds against some
specifically identified duty holder, such as the education authority.
In contrast, rights held in rem are rights held against no one in
particular, but apply to everyone. Thus, my daughter's right to an
education would be practically useless were it not held against some
identifiable, relevant, and competent body. Equally, her right against
her mobile phone being stolen from her would be highly limited if it
did not apply to all those capable of potentially performing such an
act. Claim rights, then, can be of either a positive or a negative
character and they can be held either in personam or in rem.

Jones defines liberty rights as rights which exist in the absence of
any duties not to perform some desired activity and thus consist of
those actions one is not prohibited from performing. In contrast to
claim rights, liberty rights are primarily negative in character. For
example, I may be said to possess a liberty right to spend my
vacations lying on a particularly beautiful beach in Greece.
Unfortunately, no one has a duty to positively provide for this
particular exercise of my liberty right. There is no authority or
body, equivalent to an education authority, for example, who has a
responsibility to realize my dream for me. A liberty right can be
said, then, to be a right to do as one pleases precisely because one
is not under an obligation, grounded in others' claim rights, to
refrain from so acting. Liberty rights provide for the capacity to be
free, without actually providing the specific means by which one may
pursue the objects of one's will. For example, a multi-millionaire and
a penniless vagrant both possess an equal liberty right to holiday in
the Caribbean each year.
c. Substantive categories of human rights

The above section was concerned to analyse what might be termed the
'formal properties' of rights. This section, in contrast, proceeds to
consider the different categories of substantive human rights. If one
delves into all of the various documents that together form the
codified body of human rights, one can identify and distinguish
between five different categories of substantive human rights. These
are as follows: rights to life; rights to freedom; rights to political
participation; rights to the protection of the rule of law; rights to
fundamental social, economic, and cultural goods. These rights span
the so-called three generations of rights and involve a complex
combination of both liberty and claim rights. Some rights, such as for
example the right to life, consist of both liberty and claim rights in
roughly equal measure. Thus, the adequate protection of the right to
life requires the existence of liberty rights against others
trespassing against one's person and the existence of claim rights to
have access to basic prerequisites to sustaining one's life, such as
an adequate diet and health-care. Other rights, such as social,
economic, and cultural rights, for example, are weighted more heavily
towards the existence of various claim rights, which requires the
positive provision of the objects of such rights. The making of
substantive distinctions between human rights can have controversial,
but important, consequences. Human rights are typically understood to
be of equal value, each right is conceived of as equally important as
every other. On this view, there can exist no potential for conflict
between fundamental human rights. One is simply meant to attach equal
moral weight to each and every human right. This prohibits arranging
human rights in order of importance. However, conflict between rights
can and does occur. Treating all human rights as of equal importance
prohibits any attempts to address or resolve such conflict when it
arises. Take the example of a hypothetical developing world country
with severely limited financial and material resources. This country
is incapable of providing the resources for realising all of the human
rights for all of its citizens, though it is committed to doing so. In
the meantime, government officials wish to know which human rights are
more absolute than others, which fundamental human rights should it
immediately prioritise and seek to provide for? This question, of
course, cannot be answered if one sticks to the position that all
rights are of equal importance. It can only be addressed if one allows
for the possibility that some human rights are more fundamental than
others and that the morally correct action for the government to take
would be to prioritise these rights. A refusal to do so, no matter how
consistent it may be philosophically would be tantamount to
dogmatically sticking one's head in the metaphorical sands. Attempting
to make such distinctions is, of course, a philosophically fraught
exercise. It clearly requires the existence of some more ultimate
criteria against which one can 'measure' the relative importance of
separate human rights. This is a highly controversial issue within the
philosophy of human rights and one which I shall return to when I
consider how philosophers attempt to justify the doctrine of human
rights. What remains to be addressed in our analysis of the concept of
a human right are the questions of what adequately implementing human
rights generally requires, and upon whom does this task fall; who has
responsibility for protecting and promoting human rights and what is
required of them to do so?
d. Scope of human rights duties

Human rights are said to be possessed equally, by everyone. A
conventional corollary of this claim is that everyone has a duty to
protect and promote the human rights of everyone else. However, in
practice, the onus for securing human rights typically falls upon
national governments and international, inter-governmental bodies.
Philosophers such as Thomas Pogge (1995) argue that the moral burden
for securing human rights should fall disproportionately upon such
institutions precisely because they are best placed and most able to
effectively perform the task. On this reading, non-governmental
organizations and private citizens have an important role to play in
supporting the global protection of human rights, but the onus must
fall upon the relevant national and international institutions, such
as the governments of nation-states and such bodies as the United
Nations and the World Bank. One might wish to argue that, for example,
human rights can be adequately secured by the existence of reciprocal
duties held between individuals across the globe. However,
'privatizing' human rights in this fashion would ignore two
particularly salient factors: individuals have a tendency to
prioritise the moral demands of those closest to them, particularly
members of their own family or immediate community; individuals'
ability to exercise their duties is, to a large extent, determined by
their own personal financial circumstances. Thus, global inequalities
in the distribution of wealth fundamentally undermine the ability of
those in the poorer countries to reciprocate assistance provided them
by those living in wealthier countries. Reasons such as these underlie
Pogge's insistence that the onus of responsibility lies at the level
of national and international institutions. Adequately protecting and
promoting human rights requires both nation-states ensuring the
adequate provision of services and institutions for their own citizens
and the co-operation of nation-states within international
institutions acting to secure the requisite global conditions for the
protection and promotion of everyone's human rights.

What must such bodies actively do to adequately secure individuals'
human rights? Does my daughter's human right to receive an adequate
education require the education authority to do everything possible to
assist and enhance my child's education? Does it require the provision
of a world-class library, frequent study trips abroad, and employing
the most able and best-qualified teachers? The answer is, of course,
no. Given the relative scarcity of resources and the demands placed
upon those resources, we are inclined to say that adequately securing
individuals' human rights extends to the establishment of decent
social and governmental practice so as to ensure that all individuals
have the opportunity of leading a minimally good life. In the first
instance, national governments are typically held to be primarily
responsible for the adequate provision of their own citizens' human
rights. Philosophers such as Brian Orend (2002) endorse this
aspiration when he writes that the object of human rights is to secure
'minimal levels of decent and respectful treatment.' It is important
to note, however, that the duty ensure the provision of even minimal
levels of decent and respectful treatment cannot be strictly limited
by national boundaries. The adequate protection and promotion of
everyone's human rights does require, for example, the more affluent
and powerful nation-states providing sufficient assistance to those
countries currently incapable of adequately ensuring the protection of
their own citizens' basic human rights. While some may consider
Orend's aspirations for human rights to be unduly cautious, even the
briefest survey of the extent of human suffering and deprivation in
many parts of the world today is sufficient to demonstrate just how
far we are from realizing even this fairly minimal standard.

National and international institutions bear the primary
responsibility of securing human rights and the test for successfully
fulfilling this responsibility is the creation of opportunities for
all individuals to lead a minimally good life. The realization of
human rights requires establishing the conditions for all human beings
to lead minimally good lives and thus should not be confused as an
attempt to create a morally perfect society. The impression that many
have of human rights as being unduly utopian testifies less to the
inherent demands of human rights and more to the extent to which even
fairly modest aspirations are so far from being realized in the world
today. The actual aspirations of human rights are, on the face of it,
quite modest. However, this should not distract from a full
appreciation of the possible force of human rights. Human rights call
for the creation of politically democratic societies in which all
citizens have the means of leading a minimally good life. While the
object of individual human rights may be modest, the force of that
right is intended to be near absolute. That is to say, the demands of
rights are meant to take precedence over other possible social goals.
Ronald Dworkin has coined the term 'rights as trumps' to describe this
property. He writes that, 'rights are best understood as trumps over
some background justification for political decisions that states a
goal for the community as a whole.' (1977:153) In general, Dworkin
argues, considerations of rights claims must take priority over
alternative considerations when formulating public policy and
distributing public benefits. Thus, for example, a minority's
possession of rights against discriminatory treatment should trump any
and all considerations of the possible benefits that the majority
would derive from discriminating against the minority group.
Similarly, an individual's right to an adequate diet should trump
other individuals' desires to eat lavish meals, despite the aggregate
gain in pleasure these individuals would derive. For Dworkin, rights
as trumps expresses the fundamental ideal of equality upon which the
contemporary doctrine of human rights rests. Treating rights as trumps
is a means for ensuring that all individuals are treated in an equal
and like fashion in respect of the provision of fundamental human
rights. Fully realizing the aspirations of human rights may not
require the provision of 'state of the art' resources, but this should
not detract from the force of human rights as taking priority over
alternative social and political considerations.
4. Philosophical justifications of human rights

We have established that human rights originate as moral rights but
that the successful passage of many human rights into international
and national law enables one to think of human rights as, in many
cases, both moral rights and legal rights. Furthermore, human rights
may be either claim rights or liberty rights, and have a negative or a
positive complexion in respect of the obligations imposed by others in
securing the right. Human rights may be divided into five different
categories and the principal object of securing human rights is the
creation of the conditions for all individuals to have the opportunity
to lead a minimally good life. Finally, human rights are widely
considered to trump other social and political considerations in the
allocation of public resources. Broadly speaking, philosophers
generally agree on such issues as the formal properties of human
rights, the object of human rights, and the force of human rights.
However, there is much less agreement upon the fundamental question on
how human rights may be philosophically justified. It would be fair to
say that philosophers have provided many different, at times even
conflicting, answers to this question. Philosophers have sought to
justify human rights by appeal to single ideals such as equality,
autonomy, human dignity, fundamental human interests, the capacity for
rational agency, and even democracy. For the purposes of clarity and
relative simplicity I will focus upon the two, presently most
prominent, philosophical attempts to justify human rights: interests
theory and will theory. Before I do that, it is necessary to address a
prior question.
a. Do human rights require philosophical justification?

Many people tend to take the validity of human rights for granted.
Certainly, for many non-philosophers human rights may all too
obviously appear to rest upon self-evidently true and universally
valid moral principles. In this respect, human rights may be perceived
as empirical facts about the contemporary world. Human rights do exist
and many people do act in accordance with the correlative duties and
obligations respecting human rights entails. No supporter of human
rights could possibly complain about such perceptions. If nothing
else, the prevalence of such views is pragmatically valuable for the
cause of human rights. However, moral philosophers do not enjoy such
licence for epistemological complacency. Moral philosophers remain
concerned by the question of the philosophical foundations of human
rights. There is a good reason why we should all be concerned with
such a question. What might be termed the 'philosophically naïve' view
of human rights effectively construes human rights as legal rights.
The validity of human rights is closely tied to, and dependent upon,
the legal codification of human rights. However, as was argued
earlier, such an approach is not sufficient to justify human rights.
Arguments in support of the validity of any moral doctrine can never
be settled by simply pointing to the empirical existence of particular
moral beliefs or concepts. Morality is fundamentally concerned with
what ought to be the case, and this cannot be settled by appeals to
what is the case, or is perceived to be the case. From such a basis,
it would have been very difficult to argue that apartheid South
Africa, to take an earlier example, was a morally unjust regime. One
must not confuse the law with morality, per se. Nor consider the two
to be simply co-extensional. Human rights originate as moral rights.
Human rights claim validity everywhere and for everyone, irrespective
of whether they have received comprehensive legal recognition, and
even irrespective of whether everyone is agreement with the claims and
principles of human rights. Thus, one cannot settle the question of
the philosophical validity of human rights by appealing to purely
empirical observations upon the world. As a moral doctrine, human
rights have to be demonstrated to be valid as norms and not facts. In
order to achieve this, one has to turn to moral philosophy. Presently,
two particular approaches to the question of the validity of human
rights predominate: what might be loosely termed the 'interests theory
approach' and the 'will theory approach'.
b. The interests theory approach

Advocates of the interests theory approach argue that the principal
function of human rights is to protect and promote certain essential
human interests. Securing human beings' essential interests is the
principal ground upon which human rights may be morally justified. The
interests approach is thus primarily concerned to identify the social
and biological prerequisites for human beings leading a minimally good
life. The universality of human rights is grounded in what are
considered to be some basic, indispensable, attributes for human
well-being, which all of us are deemed necessarily to share. Take, for
example, an interest each of us has in respect of our own personal
security. This interest serves to ground our claim to the right. It
may require the derivation of other rights as prerequisites to
security, such as the satisfaction of basic nutritional needs and the
need to be free from arbitrary detention or arrest, for example. The
philosopher John Finnis provides a good representative of the
interests theory approach. Finnis (1980) argues that human rights are
justifiable on the grounds of their instrumental value for securing
the necessary conditions of human well-being. He identifies seven
fundamental interests, or what he terms 'basic forms of human good',
as providing the basis for human rights. These are: life and its
capacity for development; the acquisition of knowledge, as an end in
itself; play, as the capacity for recreation; aesthetic expression;
sociability and friendship; practical reasonableness, the capacity for
intelligent and reasonable thought processes; and finally, religion,
or the capacity for spiritual experience. According to Finnis, these
are the essential prerequisites for human well-being and, as such,
serve to justify our claims to the corresponding rights, whether they
be of the claim right or liberty right variety.

Other philosophers who have defended human rights from an
interests-based approach have addressed the question of how an appeal
to interests can provide a justification for respecting and, when
necessary, even positively acting to promote the interests of others.
Such questions have a long heritage in western moral and political
philosophy and extend at least as far back as the 17th. Century
philosopher Thomas Hobbes. Typically, this approach attempts to
provide what James Nickel (1987:84) has termed 'prudential reasons' in
support of human rights. Taking as the starting point the claim that
all human beings possess basic and fundamental interests, advocates of
this approach argue that each individual owes a basic and general duty
to respect the rights of every other individual. The basis for this
duty is not mere benevolence or altruism, but individual
self-interest. As Nickel writes, 'a prudential argument from
fundamental interests attempts to show that it would be reasonable to
accept and comply with human rights, in circumstances where most
others are likely to do so, because these norms are part of the best
means for protecting one's fundamental interests against actions and
omissions that endanger them.' (ibid). Protecting one's own
fundamental interests requires others' willingness to recognize and
respect these interests, which, in turn, requires reciprocal
recognition and respect of the fundamental interests of others. The
adequate protection of each individual's fundamental interests
necessitates the establishment of a co-operative system, the
fundamental aim of which is not to promote the common good, but the
protection and promotion of individuals' self-interest.

For many philosophers the interests approach provides a
philosophically powerful defence of the doctrine of human rights. It
has the apparent advantage of appealing to human commonality, to those
attributes we all share, and, in so doing, offers a relatively
broad-based defence of the plethora of human rights considered by many
to be fundamental and inalienable. The interests approach also
provides for the possibility of resolving some of the potential
disputes which can arise over the need to prioritise some human rights
over others. One may do this, for example, by hierarchically ordering
the corresponding interests identified as the specific object, or
content, of each right.

However, the interests approach is subject to some significant
criticisms. Foremost amongst these is the necessary appeal interests'
theorists make to some account of human nature. The interests-approach
is clearly operating with, at the very least, an implicit account of
human nature. Appeals to human nature have, of course, proven to be
highly controversial and typically resist achieving the degree of
consensus required for establishing the legitimacy of any moral
doctrine founded upon an account of human nature. For example,
combining the appeal to fundamental interests with the aspiration of
securing the conditions for each individual leading a minimally good
life would be complicated by social and cultural diversity. Clearly,
as the economic philosopher Amartya Sen (1999) has argued, the minimal
conditions for a decent life are socially and culturally relative.
Providing the conditions for leading a minimally good life for the
residents of Greenwich Village would be significantly different to
securing the same conditions for the residents of a shanty town in
Southern Africa or South America. While the interests themselves may
be ultimately identical, adequately protecting these interests will
have to go beyond the mere specification of some purportedly general
prerequisites for satisfying individuals' fundamental interests. Other
criticisms of the interests approach have focused upon the appeal to
self-interest as providing a coherent basis for fully respecting the
rights of all human beings. This approach is based upon the assumption
that individuals occupy a condition of relatively equal vulnerability
to one another. However, this is simply not the case. The model cannot
adequately defend the claim that a self-interested agent must respect
the interests of, for example, much less powerful or geographically
distant individuals, if she wishes to secure her own interests. On
these terms, why should a purely self-interested and over-weight
individual in, say, Los Angeles or London, care for the interests of a
starving individual in some distant and impoverished continent? In
this instance, the starving person is not in a position to affect
their overweight counterpart's fundamental interests. The appeal to
pure self-interest ultimately cannot provide a basis for securing the
universal moral community at the heart of the doctrine of human
rights. It cannot justify the claims of universal human rights. An
even more philosophically oriented vein of criticism focuses upon the
interests' based approach alleged neglect of constructive human agency
as a fundamental component of morality generally. Put simply, the
interests-based approach tends to construe our fundamental interests
as pre-determinants of human moral agency. This can have the effect of
subordinating the importance of the exercise of freedom as a principal
moral ideal. One might seek to include freedom as a basic human
interest, but freedom is not constitutive of our interests on this
account. This particular concern lies at the heart of the so-called
'will approach' to human rights.
c. The Will Theory Approach

In contrast to the interests approach, the will theory attempts to
establish the philosophical validity of human rights upon a single
human attribute: the capacity for freedom. Will theorists argue that
what is distinctive about human agency is the capacity for freedom and
that this ought to constitute the core of any account of rights.
Ultimately, then, will theorists view human rights as originating in,
or reducible to, a single, constitutive right, or alternatively, a
highly limited set of purportedly fundamental attributes. H.L.A. Hart,
for example, inferentially argues that all rights are reducible to a
single, fundamental right. He refers to this as 'equal right of all
men to be free.' (1955:77). Hart insists that rights to such things as
political participation or to an adequate diet, for example, are
ultimately reducible to, and derivative of, individuals' equal right
to liberty. Henry Shue (1996) develops upon Hart's inferential
argument and argues that liberty alone is not ultimately sufficient
for grounding all of the rights posited by Hart. Shue argues that many
of these rights imply more than mere individual liberty and extend to
include security from violence and the necessary material conditions
for personal survival. Thus, he grounds rights upon liberty, security,
and subsistence. The moral philosopher Alan Gewirth (1978, 1982) has
further developed upon such themes. Gewirth argues that the
justification of our claims to the possession of basic human rights is
grounded in what he presents as the distinguishing characteristic of
human beings generally: the capacity for rationally purposive agency.
Gewirth states that the recognition of the validity of human rights is
a logical corollary of recognizing oneself as a rationally purposive
agent since the possession of rights are the necessary means for
rationally purposive action. Gewirth grounds his argument in the claim
that all human action is rationally purposive. Every human action is
done for some reason, irrespective of whether it be a good or a bad
reason. He argues that in rationally endorsing some end, say the
desire to write a book, one must logically endorse the means to that
end; as a bare minimum one's own literacy. He then asks what is
required to be a rationally purposive agent in the first place? He
answers that freedom and well-being are the two necessary conditions
for rationally purposive action. Freedom and well-being are the
necessary means to acting in a rationally purposive fashion. They are
essential prerequisites for being human, where to be human is to
possess the capacity for rationally purposive action. As essential
prerequisites, each individual is entitled to have access to them.
However, Gewirth argues that each individual cannot simply will their
own enjoyment of these prerequisites for rational agency without due
concern for others. He bases the necessary concern for others' human
rights upon what he terms the 'principle of generic consistency'
(PGC). Gewirth argues that each individual's claim to the basic means
for rationally purposive action is based upon an appeal to a general,
rather than, specific attribute of all relevant agents. I cannot
logically will my own claims to basic human rights without
simultaneously accepting the equal claims of all rationally purposive
agents to the same basic attributes. Gewirth has argued that there
exists an absolute right to life possessed separately and equally by
all of us. In so claiming, Gewirth echoes Dworkin's concept of rights
as trumps, but ultimately goes further than Dworkin is prepared to do
by arguing that the right to life is absolute and cannot, therefore,
be overridden under any circumstances. He states that a 'right is
absolute when it cannot be overridden in any circumstances, so that it
can never be justifiably infringed and it must be fulfilled without
any exceptions.' (1982:92). Will theorists then attempt to establish
the validity of human rights upon the ideal of personal autonomy:
rights are a manifestation of the exercise of personal autonomy. In so
doing, the validity of human rights is necessarily tied to the
validity of personal autonomy. On the face of it, this would appear to
be a very powerful, philosophical position. After all, as someone like
Gewirth might argue, critics of this position would themselves
necessarily be acting autonomously and they cannot do this without
simultaneously requiring the existence of the very means for such
action: even in criticizing human rights one is logically
pre-supposing the existence of such rights.

Despite the apparent logical force of the will approach, it has been
subjected to various forms of criticism. A particularly important form
of criticism focuses upon the implications of will theory for
so-called 'marginal cases'; human beings who are temporarily or
permanently incapable of acting in a rationally autonomous fashion.
This would include individuals who have diagnosed from suffering from
dementia, schizophrenia, clinical depression, and, also, individuals
who remain in a comatose condition, from which they may never recover.
If the constitutive condition for the possession of human rights is
said to be the capacity for acting in a rationally purposive manner,
for example, then it seems to logically follow, that individuals
incapable of satisfying this criteria have no legitimate claim to
human rights. Many would find this conclusion morally disturbing.
However, a strict adherence to the will approach is entailed by it.
Some human beings are temporarily or permanently lacking the criteria
Gewirth, for instance, cites as the basis for our claims to human
rights. It is difficult to see how they could be assimilated within
the community of the bearers of human rights on the terms of Gewirth's
argument. Despite this, the general tendency is towards extending
human rights considerations towards many of the so-called 'marginal
cases'. To do otherwise would appear to many to be intuitively wrong,
if not ultimately defensible by appeal to practical reason. This may
reveal the extent to which many peoples' support of human rights
includes an ineluctable element of sympathy, taking the form of a
general emotional concern for others. Thus, strictly applying the will
theorists' criteria for membership of the community of human rights
bearers would appear to result in the exclusion of some categories of
human beings who are presently recognized as legitimate bearers of
human rights.

The interests theory approach and the will theory approach contain
strengths and weaknesses. When consistently and separately applied to
the doctrine of human rights, each approach appears to yield
conclusions that may limit or undermine the full force of those
rights. It may be that philosophical supporters of human rights need
to begin to consider the potential philosophical benefits attainable
through combining various themes and elements found within these (and
other) philosophical approaches to justifying human rights. Thus,
further attempts at justifying the basis and content of human rights
may benefit from pursuing a more thematically pluralist approach than
has typically been the case to date.
5. Philosophical criticisms of human rights

The doctrine of human rights has been subjected to various forms of
fundamental, philosophical criticism. These challenges to the
philosophical validity of human rights as a moral doctrine differ from
critical appraisals of the various philosophical theories supportive
of the doctrine for the simple reason that they aim to demonstrate
what they perceive to the philosophical fallacies upon which human
rights are founded. Two such forms of critical analysis bear
particular attention: one which challenges the universalist claims of
human rights, and another which challenges the presumed objective
character of human rights principles.
a. Moral relativism

Philosophical supporters of human rights are necessarily committed to
a form of moral universalism. As moral principles and as a moral
doctrine, human rights are considered to be universally valid.
However, moral universalism has long been subject to criticism by
so-called moral relativists. Moral relativists argue that universally
valid moral truths do not exist. For moral relativists, there is
simply no such thing as a universally valid moral doctrine.
Relativists view morality as a social and historical phenomenon. Moral
beliefs and principles are therefore thought of as socially and
historically contingent, valid only for those cultures and societies
in which they originate and within which they are widely approved.
Relativists point to the vast array of diverse moral beliefs and
practices apparent in the world today as empirical support for their
position. Even within a single, contemporary society, such as the
United States or Great Britain, one can find a wide diversity of
fundamental moral beliefs, principles, and practices. Contemporary,
complex societies are thus increasingly considered to be pluralist and
multicultural in character. For many philosophers the multicultural
character of such societies serves to fundamentally restrict the
substance and scope of the regulative political principles governing
those societies. In respect of human rights, relativists have tended
to focus upon such issues as the presumed individualist character of
the doctrine of human rights. It has been argued by numerous
relativists that human rights are unduly biased towards morally
individualist societies and cultures, at the necessary expense of the
communal moral complexion of many Asian and African societies. At
best, some human rights' articles may be considered to be redundant
within such societies, at worse they may appear to be positively
harmful if fully implemented, replacing the fundamental values of one
civilization with those of another and thereby perpetuating a form of
cultural and moral imperialism.

The philosophical debate between universalists and relativists is far
too complex to adequately summarise here. However, certain immediate
responses to the relativist critique of human rights are immediately
available. First, merely pointing to moral diversity and the presumed
integrity of individual cultures and societies does not, by itself,
provide a philosophical justification for relativism, nor a sufficient
critique of universalism. After all, there have existed and continue
to exist many cultures and societies whose treatment of their own
people leaves much to be desired. Is the relativist genuinely asking
us to recognize and respect the integrity of Nazi Germany, or any
other similarly repressive regime? There can be little doubt that, as
it stands, relativism is incompatible with human rights. On the face
of it, this would appear to lend argumentative weight to the
universalist support of human rights. After all, one may speculate as
to the willingness of any relativist to actually forego their
possession of human rights if and when the social surroundings
demanded it. Similarly, relativist arguments are typically presented
by members of the political elites within those countries whose
systematic oppression of their peoples has attracted the attention of
advocates of human rights. The exponential growth of grass-roots human
rights organizations across many countries in the world whose cultures
are alleged to be incompatible with the implementation of human
rights, raises serious questions as to the validity and integrity of
such 'indigenous' relativists. At its worst, the doctrine of moral
relativism may be being deployed in an attempt to illegitimately
justify oppressive political systems. The concern over the presumed
incompatibility between human rights and communal moral systems
appears to be a more valid issue. Human rights have undeniably
conceived of the principal bearer of human rights as the individual
person. This is due, in large part, to the Western origins of human
rights. However, it would be equally fair to say that the so-called
'third generation' of human rights is far more attuned to the communal
and collective basis of many individuals' lives. In keeping with the
work of political philosophers such as Will Kymlicka, there is
increasing awareness of the need to tailor human rights principles to
such things as the collective rights of minorities and, for example,
these minorities' claims to such things as communal land rights. While
human rights remain philosophically grounded within an individualist
moral doctrine, there can be no doubt that attempts are being made to
adequately apply and human rights to more communally oriented
societies. Human rights can no longer be accused of being
'culture-blind'.
b. Epistemological criticisms of human rights

The second most important contemporary philosophical form of human
rights' criticism challenges the presumed objective basis of human
rights as moral rights. This form of criticism may be thought of as a
river into which run many philosophical tributaries. The essence of
these attempts to refute human rights consists in the claim that moral
principles and concepts are inherently subjective in character. On
this view moral beliefs do not emanate from a correct determination of
a rationally purposive will, or even gaining insight into the will of
some divine being. Rather, moral beliefs are fundamentally expressions
of individuals' partial preferences. This position therefore rejects
the principal ground upon which the concept of moral rights rests:
that there exist rational and a priori moral principles upon which a
correct and legitimate moral doctrine is to be founded. In modern, as
opposed to ancient, philosophy this argument is most closely
associated with the 18th. Century Scottish philosopher David Hume.
More recently versions of it have been defended by the likes of
C.L.Stevenson, Ludwig Wittgenstein, J.L.Mackie, and Richard Rorty.
Indeed, Rorty (1993) has argued that human rights are based not upon
the exercise of reason, but a sentimental vision of humanity. He
insists that human rights are not rationally defensible. He argues
that one cannot justify the basis of human rights by appeal to moral
theory and the canons of reason since, he insists, moral beliefs and
practices are not ultimately motivated by an appeal to reason or moral
theory, but emanate from a sympathetic identification with others:
morality originates in the heart, and not in the head. Interestingly,
though unambiguously sceptical about the philosophical basis of human
rights, Rorty views the existence of human rights as a 'good and
desirable thing', something whose existence we all benefit from. His
critique of human rights is this not motivated by an underlying
hostility to the doctrine. For Rorty, human rights are better served
by emotional appeals to identify with the unnecessary suffering of
others, than by arguments over the correct determination of reason.

Rorty's emphasis upon the importance of an emotional identification
with others is a legitimate concern. It may, for example, provide
additional support for the philosophical arguments presented by the
likes of Gewirth. However, as Michael Freeman has recently pointed
out, 'Rorty's argument…confuses motivation and justification. Sympathy
is an emotion. Whether the action we take on the basis of our emotions
is justified depends on the reasons for the action. Rorty wishes to
eliminate unprovable metaphysical theories from philosophy, but in his
critique of human-rights theory he goes too far, and eliminates
reasoning.' (2002:56) Rorty's own account of the basis and scope of
moral knowledge ultimately prohibits him from claiming that human
rights is a morally desirable phenomenon, since he explicitly rules
out the validity of appealing to the independently verifiable criteria
required to uphold any such judgement. What we require from Rorty is
an independent reason for accepting his conclusion. It is precisely
this that he denies may be legitimately provided by moral philosophy.

Rorty aside, the general critique of moral objectivity has a long and
very well-established heritage in modern moral philosophy. It would be
false to claim that either the objectivists or the subjectivists have
scored any ultimate 'knock-down' over their philosophical opponents.
Human rights are founded upon the claim to moral objectivity, whether
by appeal to interests or the will. Any critique of moral objectivism
is bound, therefore, to have repercussions for the philosophical
defence of human rights. As I noted above, philosophers such as Alan
Gewirth and John Finnis, in their separate and different ways, have
attempted to establish the rational and objective force of human
rights. The reader interested in pursuing this particular theme
further is therefore recommended to pursue a close philosophical
analysis of either, or both, of these two philosophers.
6. Conclusion

Human rights have a long historical heritage. The principal
philosophical foundation of human rights is a belief in the existence
of a form of justice valid for all peoples, everywhere. In this form,
the contemporary doctrine of human rights has come to occupy centre
stage in geo-political affairs. The language of human rights is
understood and utilized by many peoples in very diverse circumstances.
Human rights have become indispensable to the contemporary
understanding of how human beings should be treated, by one another
and by national and international political bodies. Human rights are
best thought of as potential moral guarantees for each human being to
lead a minimally good life. The extent to which this aspiration has
not been realized represents a gross failure by the contemporary world
to institute a morally compelling order based upon human rights. The
philosophical basis of human rights has been subjected to consistent
criticism. While some aspects of the ensuing debate between
philosophical supporters and opponents of human rights remain
unresolved and, perhaps, irresolvable, the general case for human
rights remains a morally powerful one. Arguably, the most compelling
motivation for the existence of human may rest upon the exercise of
imagination. Try imagining a world without human rights!
7. References and Further Reading

* Dworkin, Ronald. Taking Rights Seriously, (London: Duckworth, 1978)
* Freeman, Michael. Human Rights: An Interdisciplinary Approach,
(Cambridge: Polity, 2002)
* Finnis, John. Natural Law and Natural Rights, (Oxford; Clarendon
Press, 1980)
* Gewirth, Alan. Reason and Morality, (Chicago: Chicago University
Press, 1978)
* Gewirth, Alan. Human Rights: Essays on Justification and
Applications, (Chicago; University of Chicago Press, 1982)
* Jones, Peter. Rights, (Basingstoke; Macmillan, 1994)
* Mackie, J.L. Ethics: Inventing Right and Wrong, (Harmondsworth;
Penguin, 1977)
* Nickel, James. Making Sense of Human Rights: Philosophical
Reflections on the Universal Declaration of Human Rights, (Berkeley;
University of California Press, 1987)
* 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)
* Waldron, Jeremy. Theories of Rights, (Oxford; Oxford University
Press, 1984) Chapters by Ronald Dworkin, Alan Gewirth, and H.L.A.Hart