Are There Natural Human Rights?

By MICHAEL BOYLAN, The New York Times,  May 29, 2011

This has been a year of uprisings. The series of popular revolts, struggles and crackdowns by governments, which continue to this day, began in Tunisia when protesters demanded the removal of president Zine al-Abidine Ben Ali.  The claims of the protesters were about the right to eat (the cost of food), political corruption, freedom of speech and basic political rights.  Then came Egypt, as thousands flocked to Tahrir Square in Cairo and elsewhere.  Their demands were similar to those in Tunisia. Both sets of protesters were successful: the leaders of both countries fled.  This was the first wave.  It was largely peaceful.

Then the citizens of other countries became involved: Bahrain, Yemen, Syria and Libya.  The leaders in these countries were not content to ride away into the sunset.  They ordered their soldiers to fire live ammunition into the crowds and imprison the ring leaders. Many were killed.  Col. Muammar el-Qaddafi set out a bloody counter-attack so brutal that it prompted a United Nations and NATO military response.  The second wave has been violent.

Third wave countries such as Jordan, Oman and Kuwait also felt the pressure of these events and have made a few changes in response to mostly peaceful demonstrations (reminiscent of the Prague Spring in 1968).

Illustrations by Leif Parsons

Revolutions are based upon complaints.  These complaints can arise from practical concerns, like having food at an affordable price, or from more theoretical or social concerns, such as being able to publicly speak one’s mind.  Both are grounded in an understanding of what people ought to be able to enjoy as citizens of a country.  This expectation of fundamental entitlements is what we talk about when we talk about human rights.  But whether or not every person on earth has certain rights just by virtue of being a person alive on the planet — a concept I will refer to here asnatural human rights — is a question of some controversy.  In these times, when new questions of rights, complaints and subsequent conflicts seem to arise anew each week, it’s worth knowing where we stand on the matter.

Philosophers and legal scholars have intensely debated this issue over the past few decades.  One important starting point for this discussion is H.L.A. Hart’s controversial 1955 article, “Are There Any Natural Rights?” The article argued that natural rights (what we typically call human rights) were an invention of the European Enlightenment, mere social constructions.  This followed in the footsteps of another legal positivist from the 19th century, John Austin, in his very influential work, “Lectures on Jurisprudence.” For Hart and Austin an examination of ancient European texts does not uncover an actual word for either “rights” or “duties.” The absence of these words means there is no operational concept of a right or a duty (if all concepts require words to express them).  If there is no operational concept of right or duty, then such ideas did not exist before the European Enlightenment.

If this argument is correct, then human rights were invented by Locke, Hobbes, Rousseau, Kant and Hume, and are not  “natural” or “true” as such, but rather an arbitrary social construction that applies only to societies that choose to adopt it — as they might choose to adopt high-speed Internet access or a particular agricultural irrigation strategy.  Under this scenario the concept of natural human rights is not a legitimate universal category by which to judge societal or individual conduct.

Obviously, this is a very important question.  International policy would cease to be able to  advocate universally for certain fundamental rights — such as those set out in the United Nations’ Declaration of Human Rights or the United States’ Bill of Rights and Declaration of Independence or Liu Xiaobo’s “Charter08.”  And of course, the idea that NATO, France, the United States or any other country should intervene in Libya would have never arisen. Instead, each nation would be free to treat its citizens as it chooses, subject only to the rule of power.  Hitler would not have been wrong in carrying out the Holocaust, but only weak because he lost the war.  The logical result of such a position is a radical moral relativism vis-à-vis various cultural anthropologies.

There are two avenues by which to address the truth of the natural  basis of human rights: (a) whether authors argued for human rights before the European Enlightenment, and (b) whether there is a logical basis for human rights that would demonstrate its applicability to all people regardless of when it was recognized to be correct.

The first tack is too long to encompass here.  I have argued for a moral basis of human rights in the Stoics; Henrik Syse has made a similar attempt by citing ancient Roman writers; and Alan Gewirth has suggested that the concept can be extracted from Aristotle.  At the very least, there is at least a vibrant philological argument here.

The second case, it seem, is much more interesting.  If it is true that there is a logical, objective, concrete basis for human rights that is not tied to time or place, then such an argument would be sufficient to show that there are natural human rights.  Now the candidates for such a presentation can be put into two camps: the interest-based approach and the agency-based approach.  In the interest-based approach (championed by Joseph Raz and James Griffin) the critical question to ask is what conditions are necessary to ensure minimal well-being among people in a society.  The force of the argument is that all people everywhere are entitled to at least a minimum level of well-being and the liberties and goods necessary to get them there.

The agency approach is rather different.  It comes in two varieties.  The first variety  is capability theory (championed by Amartya Sen and Martha Nussbaum).  In its simplest form this approach seeks to promote human agency —  roughly, the capacity for people to act —via public policy strategies that promote individual liberty and opportunity to seek after those goods that each person feels will promote his or her own human flourishing. Agency is thus enhanced through social initiatives.

The second variety  seeks to uncover the origins of agency itself — what are the essential features that permit the execution of human action?  Under this account (championed by me and Alan Gewirth, among others) particular goods are set out as necessary for action.  In my account they are put into a hierarchical order, analogous to Maslow’s hierarchy of needs:  the most basic needs should be satisfied first for everyone before addressing other needs (the claim for food and water by person X trumps the claim for a new car by person Y).  Policy decisions are made by comparing rights claims made by various individuals and groups, and then ascertaining where each falls in the hierarchy: primary claims trump lower-ranked claims. (This also gives a strong defense for progressive taxation policy contra those who think that taxes are a governmental larceny scheme.) Both the interest approach and the agency approach  operate under the assumption that there are natural human rights that apply to every person on earth from the beginning of homo sapiens existence on the planet (defended by separate arguments).

There are, of course, other justifications of human rights that arenot universalist but rather based upon conventional criteria such as general agreement (the Social Contract approach).  These depend either upon real people signing treaties in the world as we know it (often multi-lateral agreements via internationally recognized institutions such as the United Nations) or they are hypothetical contract situations set in a fictional context (such as John Rawls’ original position or John Locke’s Social Contract, et al.).  These foundations for human rights may be conceptually appealing, but they are subject to variation according to the real people involved or the particular philosopher or  practitioner playing out the scenario according to his or her vision of the good.  The end result will not be the universalism that is needed to fend off moral relativism.

A second sort of objector to natural human rights claims comes from the Peoples’ Republic of China and from one popular interpretation of Islam.  The basis of these claims derives from an historical (conventional) view of the grounding of ethics in China and Islam.

In the case of China, the theorist is Confucius.  In his very influential work, “Analects,” Confucius established two grounding points:

1.  The essential unit of analysis is the community (a k a communitarianism)

2. The key values to be observed are ren (a virtue of care) and li (a virtue of balance presented through the metaphor of dance).

Both of these personal and civic virtues are relational.  The relation works this way: (a) there is a community and its existence is a given historical fact that is not up for discussion; (b) there is an individual and he or she is free to decide just how he or she might fit into that community in a caring and balanced way (much of the modern analysis of this comes from the work by Angle and Svensson).  Individual interpretations of the community standards are only welcomed if they are supportive.  Our care and personal balance are determined via an understanding of community values.  Each person’s individual liberty consists of finding a way to fit his or her own life’s desires within the confines of the community. Thus, the Chinese government says against objections of the West: let us alone.  We are working within the confines of our own community-based standards that have existed since Confucius wrote almost 2,500 years ago. We allow free expression within the confines of this ethical construct.

In the second case we have the role of  “umma” in Islam. Umma means community in Arabic.  The prophet Mohammad personally set out one description of a community in his Constitution of Medina. In Medina there were contentions among various religious groups over rights and privileges.  This was a severe problem because each group: Jews, Muslims and indigenous religions wanted to dominate and set the agenda.  What Mohammad set out was a way to satisfy the claims of the disparate religious groups that lived there within a contractarian framework so that all might enjoy basic rights as citizens.  Many in the Middle East feel that the Constitution of Medina creates a blueprint of how to address human rights concerns: create a political or social contract that satisfies everyone’s negotiated needs and human rights claims.  Once this process has occurred, human rights emerge.  They are negotiated rights and not natural rights.

These are both challenging objections to natural human rights, and they are both essentially the same.  On the one hand, the social history is setting the standard (one sort of convention) and on the other, a political compromise among contending factions is based upon a compromise of self-interests (another sort of convention).  If these two responses are correct, then there are no universal natural human rights.

In contrast to these objections, I would contend that if all communities or nations on earth enjoy the same sort of autonomy that legitimates any action that they deem acceptable and can be sustained for a period of time, then the moral relativists win.  There are no natural human rights, and the whole enterprise should be thrown into the gutter.  However, if communities are not self-justifying actors (meaning that they must act within a higher moral structure), then the conventional communitarian gambit fails and natural human rights exist and demand that we recognize and implement them.

The way we think about the turmoil in the Middle East and North Africa is also conditioned by the way we understand human rights.  If natural human rights exist, then the autocrats in charge that suppress them are wrong and they should either create a constitutional monarchy or a democratic republic.  If natural human rights do not exist, then the whole process is one of political negotiation that on the one hand involves peaceful protests and on the other involves bloody civil war.  Our entire understanding of these events requires us to take sides.  But how can we do this?

I have a thought experiment that might help the reader decide what he or she thinks is the correct position:  imagine living in a society in which the majority hurts some minority group (here called “the other”). The reason for this oppression is that “the other” are thought to be bothersome and irritating or that they can be used for social profit.  Are you fine with that?  Now imagine thatyou are the bothersome irritant and the society wants to squash you for speaking your mind in trying to improve the community.  Are you fine with that?  These are really the same case.  Write down your reasons.  If your reasons are situational and rooted in a particular cultural context (such as adhering to socially accepted conventions, like female foot binding or denying women the right to drive), then you may cast your vote with Hart, Austin and Confucius. In this case there are no natural human rights. If your reasons refer to higher principles (such as the Golden Rule), then you cast your vote with the universalists: natural human rights exist.  This is an important exercise.  Perform this exercise with everyone you are close to — today — and tell me what you think.

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