Introduction

“Human rights are commonly understood as "inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal (applicable everywhere) and egalitarian (the same for everyone).” Wikipedia

Human rights serve to safeguard the individual and provide them with the necessary freedoms to have a self-fulfilling life. Even in democracies, where one might assume that the governments would rule with these ends in mind, legally enforceable human rights are important. They enshrine in law protection for minorities and those with little political influence, and help prevent those with power from deliberately or unwittingly taking away peoples freedoms. Human rights also serve to empower people by providing a readily accessible, authoritative statement of what they are entitled to, giving them the means and confidence to seek justice in circumstances where otherwise they might not do so.

It is not the purpose of this essay to argue that the concept of human rights is not worthwhile, or that human rights legislation cannot help bring about the benefits described above. However, there are many aspects of human rights that are problematical, and in practice their application can have unwanted and unintended consequences. Furthermore, research suggests that human rights legislation is not the key factor in determining how well a state protects human rights. It is these issues that are explored in this essay.

Historical Background

The history of human rights goes at least as far back as Cyrus the Great, King of Persia, who in 593BC issued an edict granting freedom of religion and racial equality. However, it was in the 17th and 18th centuries, during the philosophical movement known as the Enlightenment, that ideas about human rights moved into the mainstream of western intellectual thought. They played an important role in the French and American revolutions; for example the United States Declaration Of Independence starts:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ...”

More recently, the atrocities of the Second World War led to a widespread feeling in the international community that action was required to prevent such events happening again, and in 1948 the UN General Assembly adopted the Universal Declaration of Human Rights, the preamble of which begins:

“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people ...”

The Universal Declaration of Human Rights is not a treaty, but it defines the terms 'fundamental freedoms' and 'human rights' that appear in the United Nations Charter, which is binding on all members.

The Foundations Of Human Rights

Human rights are described as being 'inalienable fundamental rights to which a person is inherently entitled ', which invites the questions from where do we get such rights? There are essentially two different responses to this:

1. Human rights have their origins in something that stands outside of humankind - religion, natural laws, philosophical principles.
2. Human rights arise from agreements between states and people about the fundamental needs of human beings.

The world's religions do not generally speak in terms of human rights, but in terms of the moral duties - duties to god, duties between rulers and subjects, duties to each other. However, religious scholars have argued that the moral principles underlying such duties are the foundations of human rights. Those who share this view may see human rights as god given.

Human rights can be seen to be 'natural rights', not dependent upon the laws, customs, or beliefs of any particular society, and therefore universal and inalienable. Such natural rights may be thought to be inherent in nature itself and self evident to us by virtue of our humanity, or they may be established by a process of reasoning.

The belief that human rights are self-evident is wonderfully expressed by Mary Robinson who, when United Nations High Commissioner for Human Rights, said:

"Human rights are inscribed in the hearts of people; they were there long before lawmakers drafted their first proclamation."

This expresses the feeling that no one needs to be told why they want to feel secure, be free from torture, treated without discrimination etc. However, there is a problem with self-evident rights - they are not self-evident to everyone. For example Karl Marx wrote:

“None of the so-called rights of man, therefore, go beyond egoistic man, beyond man as a member of civil society, that is, an individual withdrawn into himself, into the confines of his private interests and private caprice, and separated from the community.”

Attempts to establish principles from which human rights can be derived by reason take many forms. The philosopher Immanuel Kant proposed the categorical imperative - 'Act only according to that maxim by which you can at the same time will that it should become a universal law.' In contrast Arthur Dyck sought to ground human rights on what he thought was logically and functionally necessary for the existence and sustenance of a community. While such philosophical reasoning plays an important role in our understanding of human rights, no single theory has very widespread support, and none of the major codes of human rights in operation today are directly derived from such philosophical principles.

In practice, as Jack Donnelly says in his book 'Universal Human Rights In Theory And Practice' ,

“Human rights ultimately rest on a social decision to act as though such 'things' existed.”

The current codes of human rights reflect a consensus of what is thought to be needed for people to be safe from severe political, legal, and social abuses, and what key freedoms are needed for them to lead self-fulfilling lives. They gain their legitimacy through their obvious reasonableness, and their authority through inclusion in international treaties, constitutions, and national laws. The process of creating codes of rights is influenced by culture, history, philosophical theories and religious beliefs, but ultimately it depends upon the authors' views about what people most need.

When it is asserted that human rights are '”special, basic, inalienable, fundamental, universal and egalitarian'' these are not statements of absolute truths. Rather they should be seen as as guidelines as to what what qualifies as a human right, and as rules for how such rights should be applied.

European Rights Law

Since 1953 the principal source of human rights law in the UK has been the European Convention on Human Rights, a treaty that all members of the Council of Europe have to ratify. This treaty set up the European Court of Human Rights, whose decisions are binding on its members. The following is a summary of the main articles of the Convention (other articles deal with the setting up of the court).

1. States must apply the convention within their jurisdiction .
2. Right to to life .
3. Right to freedom from torture .
4. Right to freedom from slavery, servitude and forced labour.
5. Right to liberty and security of person .
6. Right to a fair trial.
7. No retrospective criminalisation.
8. The right to respect for one's private and family life, one's home and one's correspondence.
9. Right to freedom of thought, conscience and religion.
10. Right to freedom of expression
11. Right to freedom of assembly and association
12. Right for men and women to marry and establish a family.
13. Right for an effective remedy before national authorities for violations of rights under the Convention.
14. Right to protection from discrimination with respect to the rights under the Convention.
15. States may derogate from certain rights at time of war.
16. States may restrict the political activity of foreigners who are not from states covered by the Convention.
17. No one may use the Convention's rights to seek the abolition or limitation of rights guaranteed in the Convention.
18. Any limitations on the rights provided for in the Convention may be used only for the purpose for which they are provided.

Later 'protocols' (amendments) to the Convention provide :

The right to the peaceful enjoyment of possessions The right to an education. The right to free elections. The abolition of the death penalty.

Most of the rights in the Convention correspond to ones in the Universal Declaration of Human Rights, although the Universal Declaration does not (explicitly) abolish the death penalty. The Universal Declaration specifically includes other rights, including the right to work and the right to a standard of living adequate for health and well-being.

In 1998 the UK parliament passed the Human Rights Act, which allows the UK courts to remedy breaches of the Convention. This does not take away a person's freedom to go to the European Court, but may make it unnecessary.

In recent times domestic legislation in the UK has introduced major additions to the list of rights which people enjoy. Many of these address the needs of particular groups, for example women’s rights, gay rights, children’s rights and disabled peoples rights.

Categories of Rights

There are a number of ways in which rights may be grouped. One common division is to distinguish between civil and political rights, and economic, social and cultural rights. Civil and political rights include freedom of expression, freedom from torture and freedom of conscience. Economic, social and cultural rights include the right to work and the right to an education.

Nearly all the initial rights in the Convention were civil and political rights This can be seen as indicative of the fact that although it is maintained that both types of right are equally necessary, some Western countries have privileged civil and political rights over social and cultural ones. During the communist era in eastern Europe the opposite may be said to have been true.

Rights can be split between negative right and positive rights. Positive rights are those that require the state to make some provision, for example for education or healthcare. Negative rights only require the state to prevent their breach, for example to protect freedom of speech and freedom of conscience.

Rights can be divided between substantive rights and procedural rights. The substantive rights are all the basic rights a person is entitled to. The procedural rights are the rights which lay down how the substantive rights are to be implemented and enforced, for example by providing access to a judicial system and a fair hearing.

Some rights may be seen to apply in all circumstances, for example freedom from torture. Others may not, for example prisoners clearly lose rights to privacy, a family life and enjoyment of their possessions.

Disputes About Rights

There are disputes about what should and should not be included as rights. The US constitution includes the right to bear arms. The American Declaration Of Rights And Duties Of Man includes the right to enjoy the arts. Libertarians believe that you have the right to the fruits of your labour (thereby opposing redistributive taxation). Some fundamentalist groups oppose the right to freedom of religion.

Disputes exist as to how human rights should be interpreted. Does the right to life preclude the death penalty or abortion? Does freedom of expression preclude legislation against pornography, confidentiality, official secrets, libel, slander, etc. ?

Rights may be broad or narrow. For example, (the later amended) article 14 of the European Convention on Human Rights prohibiting discrimination is broad in what kinds of discrimination can be be considered, but is narrow in that it only applies to rights under the convention.

Not only can there can be conflict about what a right means, there can also be a conflict between rights, for example between the right to freedom of expression and the right to a private life.

If rights were derived from an explicit principle, such as Kant's categorical imperative or the golden rule (that one should treat others as one would like others to treat oneself) it might be easier to resolve such disputes. However, this is not the case, and in practice resolution of such conflict is left to the courts and the case law that they create. Decisions about the interpretation of human rights and their enforcement therefore become a matter for judges.

Even where the judges are independent, and of high quality and integrity, this can be problematical. Judges naturally have their biases, based on their background, culture, political views, ambitions, etc. This is true whatever laws they have to interpret, but is more significant for human rights cases because human rights law often only establishes broad principles, leaving a great deal of discretion to judges on how they interpret them. For example, the US law on abortion was effectively made by the Supreme Court in Roe v Wade when it ruled (by 7 votes to 2) that the constitutional rights to privacy and liberty protected a woman's right to terminate her pregnancy. Arguing that the court was making up completely new rights a dissenting judge wrote:

“I find nothing in the language or history of the Constitution to support the Court's judgement. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.”

Indivisible Rights

It is claimed that human rights are indivisible – that they can only exist in combination because they are mutually dependent. There is clearly an element of truth to this. If the purpose of human rights is to safeguard the individual and provide them with the necessary freedoms to pursue a self-fulfilling life, and if a set of rights has been identified that is needed to ensure that this happens, then it can be said that all are equally necessary. It is also true that if a state subscribes to a set of human right, but only enforces some of them, its actions are incompatible with the principles that they are universal, fundamental and inalienable.

However, this does not mean that all rights are equally important, or that nothing can be achieved by only implementing some of them. The right to life and freedom from torture will be placed higher by most people than the right to private property, and for most people life and freedom from torture would be worthwhile, even if they lacked a property right. Furthermore, freedom from torture is clearly not dependent on the right to private property.

In practice some rights have particular significance, for example George Washington said of freedom of expression:

"If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter".

The fact that some rights figure in nearly all codes of human rights, while others do not, supports the view that certain rights are special.

Human Rights And Democracy

There is much evidence that the most important factor in determining what rights a people enjoy is whether they live in a fully functioning democracy. In a work titled 'Thinking Inside the Box: A Closer Look at Democracy and Human Rights', researchers from New York University and the University of California–Riverside comment:

“Research on human rights consistently points to the importance of democracy in reducing the severity and incidence of personal integrity abuses...

It takes full-fledged democracy, culminating in a system with multi-party competition, before there is reliable improvement in respect for human rights. ...

The process of democratization does not consistently produce human rights benefits until it is virtually complete ...”

If human rights law has limited effect outside democracies, it is also true that democracies can fail to protect human rights. In particular the interests of minorities are often neglected. Historical examples of this are the rights of black people in the USA and of Catholics in Northern Ireland.

In the UK human rights are often see as being anti-democratic because they enforce policies which are not in favour with parliament, the public or the media. This can in fact be seen as evidence that they are doing their job, protecting the weak and marginalised from maltreatment by the strong and powerful. However, there is clearly a danger that too many controversial decisions risk undermining popular support for the principle of human rights.

An associated concern is the emergence of 'legalism'' - excessive legal control over activities. As power moves from politicians to judges, the system becomes less sensitive to the popular will, and as judges increasingly take decisions that were once the province of elected representatives, public antipathy towards both may increase. Moreover, if legal judgements excessively promote the interests of the individual over those of society at large serious long term harm may be done. This harm may take various forms including the mis-allocation of resources and the stifling of policies with long term social benefits. For example, if human rights legislation prevents compulsory vaccination, this may not only lead in the long term to greater human suffering, but also a greater state healthcare bill.

Human Responsibilities

Through most of human history moral codes have emphasised the duties and responsibilities of individuals. These have at times lead to legal obligations to care for each other. For example the English Poor Law of 1601 said that poor parents and children were responsible for each other. It is a concern that the shift to a rights-based culture, often part of a wider culture of entitlement, has led to a diminution of a sense of personal responsibility and duty.

It is true that human rights impose a kind of responsibility on individuals by defining what is unacceptable behaviour, such as torture and discrimination. However, rights like the right to work and the right to an adequate standard of living seem to impose no clear corresponding obligations on the individual. In the UK and USA, there is not even a legal duty on people to come to the aid of an imperilled person.

It is noteworthy that The American Declaration of the Rights and Duties of Man, perhaps the world's first international code of human rights, does contain a list of duties. In its the preamble it says:

“The fulfilment of duty by each individual is a prerequisite to the rights of all. Rights and duties are interrelated in every social and political activity of man. While rights exalt individual liberty, duties express the dignity of that liberty.”

The duties listed in the declaration include:

Duty to one's parents and children Duty to acquire an education Duty to obey the law Duty to pay taxes Duty to work

The Proliferation Of Rights

The word 'right', even when used to mean something to which one has a just claim, does not necessarily refer to a human right. Rights are often dependent on where you live, what you own, what you do and what groups you belong. In his introductory book on human rights William Edmundson differentiates human rights from other rights by saying:

“Human Rights recognize extraordinary special, basic interests that set them apart from rights, even moral rights...”

In practice there is continual pressure to extend the range of human rights, and Edmundson's distinction between 'special' human rights and other moral rights appears to be getting lost. In her book 'Rights Talk' Mary Anne Glendon makes the point that continually extending human rights may well undermine their value. She writes:

“If some rights are more important than others, and if a small group of rights is of particularly high importance, then an ever expanding list of rights may well trivialize this essential core without materially advancing the proliferating causes that have been reconceptualized as involving rights.”

The Individual And Society

Individual interests at times naturally come into conflict with each other and with those of society at large. The absoluteness of the culture of rights, so important in protecting the key core freedoms, becomes an obstacle to resolving such conflicts. If someone has a right to something, then no one may infringe it, and the defence of it becomes a matter of principle. Compromise and making concessions is not only unnecessary, such behaviour comes to be seen as moral weakness. As long ago as 1991 Mary Anne Glendon wrote:

“The lack of public discourse regarding responsibility, sociality, and civil society, leaves us to work out our own vision of the kind of people we are and the kind of society we want to become, mainly in terms of the individual, the state and the market. Our overblown rights rhetoric and our vision of the rights-bearer as an autonomous individual channel our thoughts away from what we have in common and focus them on what separates us. They draw us away from participation in public life and point us towards the maximisation of private satisfaction. They incline us to shift the costs and risks of current policies regarding natural resources, pollution, public indebtedness, social security, and public health onto our children and future generations.”

Conclusions

Even in democratic states human rights play an important part in safeguarding the individual, leaving them free to pursue self-fulfilling lives.

In practice the legitimacy and authority of human rights does not come from religion, natural laws or philosophical principles, but from a common belief that they matter. Human rights ultimately rest on a social decision to act as though such things existed.

Exactly what our human rights are and how they are to be interpreted is disputed. There is least disagreement about rights which guarantee the most basic civil and political rights, such as freedom from torture, security of person, freedom of expression and freedom of conscience. Positive economic, social and cultural rights are the most problematical, both because there is less consensus about what they should be, and because they can shift decisions about the allocation of resources from elected governments to the judiciary.

The authority that courts have to interpret and extend the scope of human rights gives judges considerable power. Such power may not always be used wisely, and may be seen as anti-democratic.

Democracy is a vital element in delivering human rights. Democracy is not a guarantee that human rights will be enforced, but a lack of democracy almost always results in human rights suffering.

Rights confer benefits on people without it being clear what their corresponding duties and obligations are. Rights are increasingly associated with a culture of entitlement, which in turn has led to their proliferation. This process undermines the special position that the key human rights should have in society.

The culture of rights leads people towards individualism, and away from thinking about the collective good. By ever extending the scope of individual rights the danger is that we cultivate selfishness, and sacrifice the future for short term personal gains.