Human Rights in Law, Politics and Society

Lecture 1: Origins and conceptual debate

Steven Greer

Overview

1. Introduction2. What are rights?3. What are ‘human rights’?4. History of debate about human rights: overview5. The debate about ‘natural rights/social

contract’ theory6. From ‘natural’ to ‘human’ rights7. Mapping the contemporary conceptual debate8. Conclusion

1. Introduction

• Two undergraduate units/one postgraduate • different names different modes of assessment• common lectures seminars (Sociology & LLM)/tutorials (LLB)• common syllabus• common unit structure

• Expectations • Goal: active and reflective engagement in debates• Literature and Unit Guides• Lectures

• Frameworks• Conceptual clarification• Institutions and processes rather than rights-holders or types of right• Integration of parallel debates about law, politics and society in historical contexts

• Seminars and tutorials• Active and reflective engagement in debate organised around set questions

1.1. Minor change to programme

• Order of topics (5 & 6 reversed as follows)• 5. Democratization and transitional justice• 6. Judicial enforcement

2. What are ‘rights’?

• The ‘will’ and ‘interest’ theories• The will theory: a ‘right’ is a legitimate power of waiver

over the performance of someone else’s duty.• The ‘interest/benefit theory’: a ‘right’ is a legitimate

claim of access to a good or benefit or to the realisation of a legitimate interest.

• Tangible goods and benefits: food, clothing, shelter etc.

• Intangible goods and benefits: liberty, privacy, association etc

• Rights and obligations• Rights not reducible to correlative duties

2.1. ‘Rights’ presuppose a specific political morality

• What counts as a ‘legitimate entitlement’ depends upon the ‘political morality’ invoked• eg societies based on slavery regard slave owners as having ‘rights’

over slaves which would not be the case in non-slave societies• All societies have political moralities:

• Assumptions about: ‘human nature’; ‘human need’; ‘proper' distribution of benefits and burdens of social life; relationships between individuals, and between individuals and society/institutions.

• Derived from tradition, culture, divine revelation, reason, imagination, intuition.

• Some pre-modern, non-western societies produced ideas similar to contemporary hr ideal (see later debate about ‘Asian values’)

• But these have not been – Primary source of contemporary hr ideal– Reason for its institutionalization or global extension

2.2. Two types of rights

• Negative rights Obligation on others (including state) not to interfere with individual

freedom Classical civil and political rights: ‘first generation’ rights (17th & 18th

centuries): life, liberty, privacy, belief, association, expression etc

• Positive rights Obligation on others actively to deliver a benefit, eg under contract. Social & economic rights: ‘second generation’ (19th & 20th centuries):

employment conditions, health care, adequate standard of living, education etc.

Cultural rights and rights of ‘solidarity’: ‘3rd generation’ (20th & 21st centuries): rights to cultural expression, clean environment etc.

3. What are ‘human rights?’

• Every human being in the world possesses a set of universal legitimate entitlements (both positive and negative), protecting basic elements of their well-being, purely on account of their humanity and independent of any other attribute or status, eg wealth, gender, race, ethnicity, creed, age, ability/disability, sexual orientation etc.

• Human rights are, therefore, by definition• Individual not collective

• Universal and equal: apply to all humans equally

• Reciprocal: claiming a hr requires recognition of hr of ‘the other’• Not coterminous with all aspects of human well-being, eg no hr to be

loved

4. History of debate about human rights: overview

• Key elements• Political, social, and legal modernization.• Democratization, constitutionalization, bureaucratization of

modern states and societies• Nationalism, westernization, internationalization, and

globalization• Historical outline

• Transition from feudalism to modernity in west• Natural rights/social contract theory• Decline of natural rights theory: 19th and 20th centuries• 20th century critiques of liberalism and ‘rights talk’• From ‘natural’ rights to ‘human’ rights: post-2nd World War

4.1. The transition from feudalism to modernity in the west

• Precursors to the idea of human rights in pre-modern Europe and in other cultures and civilizations

• But key historical milestone is 16th-18th centuries (Europe and America)

• Crisis of feudalism – economic, political, ideological collapse and loss of credibility.

• Decline of feudal political morality based on ‘natural’, divinely-ordained, rigid hierarchy of obligation: rise of modern political morality based on individual rights.

• Reformation and the European wars of religion • Rise of absolutist bureaucratic state in Europe• The Enlightenment• Rise of economically powerful bourgeoisie: exemption of medieval cities from

feudal obligation was source of • Economic power• Idea of negative natural rights

5. The debate about ‘natural rights (social contract)’ theory

• The ‘state of nature’ and the ‘social contract’:• In state of nature everyone has ‘equal natural right to life’:

source of all other ‘natural’ rights• Rights precede, and provide reasons for, obligations.• Secular, ‘rational’, scientific political morality.

• Natural rights are precarious in state of nature.• Legitimate social order, civil society, and the state can be

seen as outcome of an agreement between rational, self-interested, formally equal individuals to secure their natural rights: move from ‘state of nature’→civilization.• Equal civil and political rights: responsibility of state• Market distributes satisfaction of economic and other rights

• Natural rights need to be specified in national constitutions (‘national social contracts’)

5.1. The debate in the 17th and 18th centuries• Social contract theorists

• Thomas Hobbes (1588-1679)• Jean-Jacques Rousseau (1712-1778)• John Locke (1632-1704)

• Social contract theory popularized by Tom Paine (1737-1809)

• The Rights of Man (1791)

• 18th century critics of natural rights/social contract theory

• Edmund Burke (1729-1797): Reflections on the Revolution in France (1790)• David Hume (1711-1776): the ‘is/ought’ debate

– How the world is does not tell us how it should be.– Facts and norms inhabit parallel universes.

5.2. Political impact of social contract theory: 17th & 18th centuries

• The modern, western, liberal revolutions: influence of Locke (right of revolution):• English Civil War, 1642-51→Glorious Revolution 1688• Preamble to American Declaration of Independence 1776• French Declaration of Rights of Man and Citizen 1789

• Political empowerment of middle classes• commercial obligations stemmed from commercial contracts:

attractiveness of idea that social and political obligation stemmed from social and political contract.

• familiar with the idea of putting contracts into writing (written constitutions)

• theory of constitutional state: power of state limited by constitutional rights→precursor to modern liberal democratic state.

5.3. Decline of natural rights theory: 19th and 20th centuries

• Utilitarianism: Jeremy Bentham (1748-1832) • pursuit of greatest happiness of greatest number is

primary moral objective• individual rights subordinate to collective good

• Rise of Darwinism, Marxism and social science• Emphasis upon groups not individuals.• Society no longer seen in terms of outcome of

agreement between individuals: individual seen as product of society.

5.4. Late 20th century critiques of liberalism and ‘rights talk’• Communitarianism

• Individual is social construct• Individual responsibility to community takes precedence over rights • Communities have rights

• Postmodernism • hostility towards ‘grand narratives’ including ‘universal hr’• ‘the individual’ is only a fiction produced by ‘enlightenment project’

• Feminism • Liberal feminists endorse human rights• Others ambivalent about ‘rights talk’ as patriarchal language

• Cultural relativism • Hr ideal is merely product of western culture foisted on rest of world

due to political, military, economic power of west

6. From ‘natural’ to ‘human’ rights (more details in next lecture)

• ‘2nd and 3rd generation’ rights added to ‘1st generation’ civil & political rights.• Democratization• Socialism• Expanding notion of human well-being→state and social responsibility to fulfil it

• The Holocaust and the discrediting of ‘value free’ social science• The triumph of liberalism in the west

• Discrediting of ‘right’ and ‘left’ alternatives as viable politics of modernity.• ‘Natural rights’ remains a powerful, if inexplicit, narrative of liberalism.

• Consolidation and extension of the ‘western project’: (globalization).• Idea of ‘natural’ rights revived post-2nd WW: ‘natural’ dropped to avoid problems

of past.• ‘Human’ rights more politically attractive globally: eg Universal Declaration of

Human Rights 1948 taps into latent rights elements in various world civilizations.

7. Mapping the contemporary conceptual debate• ‘Indifference’

• hr are irrelevant and should be ignored.• Rejectionism’

• hr are pernicious and should be rejected in favour of some other set of fundamental values (eg Taliban).

• ‘Scepticism’ • hr have some value but no primacy over other social goals,

eg national security.• ‘Realism’

• hr take moral primacy over other social and political goals but are also limited by them.

• ‘Perfectionism’ • subordination of all public policy to hr.

8. Conclusion

• Contemporary human rights ideal does not rest on any universally accepted theoretical foundations• But this is no less true of any of its rivals.

• At beginning of 21st century it has emerged as mobilizing vision and major element in: • Institutional architecture of modern western liberal democracies• Global discourse: ‘overlapping consensus’ between different value

systems deepened by ‘globalization’

• Contemporary conceptual debate is increasingly between: • ‘Human rights sceptics’• ‘Human rights realists’• ‘Human rights perfectionists’