Human Rights. Michael Freeman

UN stood in an ambiguous position. It was, on the one hand, the author and guardian of international human-rights standards while, on the other hand, it was an association of governments that were often serious human-rights violators. The UN has, therefore, been the central institution where international human-rights law and politics meet, and often clash, and where the gap between human-rights ideals and realities is especially apparent.

The political character of human rights has philosophical implications. The lawyers who have played a leading role in human-rights studies have sometimes relied, explicitly or implicitly, on the philosophy of legal positivism, which says that human rights are what human-rights law says they are. Human rights are, however, made and interpreted by a political process. The provisions of the UDHR were the subject of intense debates, and the final text was produced by a long series of votes. It is politically important that human rights have been codified in international and national law. It would be a mistake, however, to believe that the legalization of human rights takes the concept out of politics.

      The legal-positivist approach to human rights not only misrepresents their character, but also has dangerous implications. The point of human rights has historically been to criticize legal authorities and laws that violate human rights. Legal positivists sometimes say that the only rights are those that are legally enforceable. It may be desirable that human rights should be legally enforceable, but it is not necessary that they should be so. The concept of human rights implies that they are often not. If human rights were legally enforceable, one could, and normally would, appeal to one’s legal rights, and would not need to appeal to one’s human rights. Human rights are available when legal rights fail. Human rights may be, and often are embodied in positive law, but an important function of human rights is to enable the criticism of unjust legal systems.

The principal philosophical problem of human rights is to show how they can be justified if they derive neither from law nor culture, both of which can be criticized on the ground that they violate human rights. There is an historical reason why there is a problem about the ‘source’ of human rights. The first systematic human-rights theory, proposed by John Locke in seventeenth-century England, assumed that God was the ‘source’ of human rights. Locke could assume agreement with and among his readers that this source provided the ultimate validation of such rights: God was the source both of what exists and of value. The problem faced by the United Nations in proclaiming the UDHR was that, precisely because it claimed that these rights were universal, it could not base them on any particular religious belief. The justificatory basis of human rights had to be abstracted from particular religious and ideological beliefs, but the character of that abstraction was not clear. The UDHR says little about the source of these rights, apart from some large and unsubstantiated claims in the preamble that recognition of human rights is ‘the foundation of freedom, justice and peace in the world’, and that disregard for human rights has resulted in ‘barbarous acts which have outraged the conscience of mankind’. These claims may contain important truths, but they do not give a clear account of the source or justification of human rights.

      The idea of the ‘source’ of human rights contains an important and confusing ambiguity. It can refer either to the social origins or to the ethical justification of human rights. Social scientists have studied the social origins of rights in, for example, popular political protest, and, important though such studies may be for an historical understanding of the discourse of rights, we must be careful not to conflate social origins with ethical justifications, since there are social origins of evil as well as of good. The social-scientific approach to rights, by its preference for avoiding ethical questions, sometimes falls into this confusion. There are, therefore, two distinct questions about the ‘sources’ of human rights that we need to answer. Why do we have human rights? Why ought we to have human rights?

      Another set of philosophical questions concerns the relations between human rights and other values. Do human rights occupy the whole space of moral and political theory, or are there other important values? If there are other important values, how are human rights related to them? The UDHR claims that human rights are the foundation of freedom, justice and peace, but does not say how these values are related, conceptually or empirically. It is important to determine as clearly as possible the limits as well as the value of human rights. It is common to say that human rights establish minimum standards of good government. Claiming too much for human rights may make it harder to defend them against their critics, and thereby weaken their appeal and effects. We need to be clear, therefore, whether the concept of human rights supports a comprehensive or a minimum-standards political philosophy.

There is a huge gap between the experiences of the Syrian people since 2011 and those of human-rights lawyers, activists and academics. This gap has been filled to a large extent by law and legal studies. These studies are certainly important. The gap is, however, also filled by politics, and by social, cultural and economic forces. These may be more important, but they were until fairly recently neglected in academic discourse. The aim of this book is to make a contribution to rectifying this imbalance.

Conclusion

      Until recent years the study and, to a considerable extent, the practice of human rights was dominated by lawyers. The cause of human rights owes a great debt to them. There is a danger, however, that excessive attention to human-rights law distorts our understanding of human rights. This book seeks to put law in its place by adopting an interdisciplinary approach. The concept of human rights has a history marked by philosophical controversies. Knowing that history and understanding those controversies illuminate the state of human rights today. Since the end of the Second World War, the concept has been incorporated into a large body of international and national law, but it has also been at the heart of political conflicts. The law is important, but understanding human rights requires us to understand its politics. Law and politics do not exhaust the human-rights field. The other social sciences – such as sociology, anthropology, international relations and economics – are essential to our appreciation of human-rights problems and their possible solutions. Human rights is an interdisciplinary concept par excellence.

We begin this inquiry by tracing, in chapter two, the historical emergence of human rights. The story continues in chapter three by examining its gradual acceptance by the international community. Chapter four investigates the principal theoretical justifications of and debates about the concept. The distinctive contribution of the social sciences is then surveyed in chapter five. In chapter six the place of human rights in national and international politics is analysed, and the respective roles of international institutions, governments and NGOs evaluated. The political economy of human rights forms the subject of chapter seven, with special attention to development, globalization, business corporations, international financial institutions, climate change, new technologies and pandemics. Much-debated questions about the supposed universality of human rights and its relation to actual human differences are addressed in chapter eight, with particular emphasis on cultural minorities, indigenous peoples, and the rights of women, children, sexual minorities, disabled persons, migrants and refugees. We conclude, in chapter nine, with reflections on the history of human rights, their current status and their likely future. One of the few certainties is that understanding human rights will be essential to understanding the world that we live in for a long time to come.

2 Origins The Rise and Fall of Natural Rights

      Why history? Which history?

      Human rights are universal. History relates change. Human rights have a history. The contemporary concept of human rights is a product of that history, but how can a universal concept have a history of change?

      The history of human rights itself has a history, which is controversial. Recently, a new generation of historians of human rights has challenged what they call the ‘textbook’ history. This history, according to its critics, is a triumphalist story of progress from superstition and cruelty to rationality and humanity. It is located primarily in Europe and North America, and is consequently a tale of the inevitable triumph of Western liberalism. The story is rendered more plausible by marginalizing the historical connections