di Paola Barbuzzi
«It would, of course, be a little odd that there should be such rights attaching to human beings simply qua human beings in light of the fact…that there is no expression in any ancient or medieval language correctly translated by our expression ‘a right’ until near the close of the middle ages: The concept lacks any means of expression in Hebrew, Greek, Latin or Arabic, classical or medieval, before 1400, let alone in Old English, or in Japanese even as late as the mid-nineteenth century. From this it does not, of course, follow that there are no natural or human rights; it only follows that one could not have known that there were. However, this at least raises certain questions. However, we do not need to be distracted into answering them for the truth is plain: There are no such things as rights, and belief in them is one with belief in witches and unicorns» (Alasdair MacIntyre’ s claims)
Discourses on the universality of the concept of human rights have captured the attention of non-legal academic disciplines in the past 30s years. Before this time «the nature of rights was largely ignored by sociology», as Turner argues in his article Outline of a theory of human rights. The reasons are multiple according to the way the topic has been analysed and interpreted by the scholars.
In this essay, I am concerned with what I believe is an interesting point of analysis to deal with the acceptance of the universality of human rights within an interdisciplinary approach. The acceptance supports the idea that the thinking of human rights as universal carries within itself the inherent entitlement of each human being to human rights. Therefore, the rights as inherent to human beings seem to be enforced by the deployment of a semantic structure of ‘good reasons’. The latter seems to validate ethical justifications of the acceptance of the universality of human rights.
The acceptance of the universality of human rights has produced discourses on the justification of the attribution of the universal connotation to the rights. Some of these discourses will be taken into account to support the theory of the acceptance. One of them is for instance reported in The Universality of the Concept of Human rights by Louis Henkin. He argues that the rights of the Universal Declaration have been politically and legally accepted almost by all states, integrated into domestic law and translated into international legal laws. This process, as he continues, has been possible because the Universal Declaration of Human Rights (UDHR) conveys «common contemporary moral intuitions». Furthermore, the idea of universality seems to respond to a need for a «universal moral ground», more precisely, the need for all individuals to have common and strong moral rights, which must transcend relativistic and subjective divergences. This belief has led to the realization of the Charter of the Universal declaration in 1948 for all individuals of the “human family”. Thus, the importance of the Universal Declaration (UDHR), as it is also explained in the preamble of the International Covenant on Civil and Political Rights (ICCPR), 1966, is the natural recognition of the human rights as the inherent dignity of the human person.
Given all that, however, this perspective diverges from the views of MacIntyre’s claims. He refuses the universalism of the human rights on the fact that the human rights come from a constructed set of rules. Similarly, the analysis of human rights under the social constructivist lens emphasises its universality as “construction”. MacIntyre is not the only one to disbelieve the universal connotation, even for Michael Waters, the human rights are contingent to social and historical changes, as he states in Human rights and the universalization of interest: towards a social construction approach. His social constructivist view has strongly influenced the contemporary sociologists on the respective topic.
The idea of the universality of the human rights, as today everybody seems to perceive and understand, is that they signify a commitment to the inviolability of certain types of human rights such as the right not to be tortured, the right to be free from slavery and so on. These two rights are recognised as absolute in the sense that whatever the circumstances are nobody should experience situations which would degrade their dignity. On the other hand, the non– absolute rights, which constitute the majority of the human rights, can be instead limited and restricted in specific circumstances. Despite the distinction of absolute and non-absolute, human rights per se’ have been invested with the intention of creating a common linguistic convention for all the individuals on the planet, regardless of the race, the sex, the religion and social diversities. However, it is known that in the beginning, the Universal Declaration of Human Rights was criticised by some for reflecting mainly western cultural beliefs. Nevertheless, since then, the majority of States around the world have become members part of the UN, and their duties are to provide with legal guarantees and protection for all individuals against any injustice, exploitation and danger within their respective territories. Thus, respect and observance of human rights seem to be considered by some thinkers as ‘good reasons’ for the constructions of moral justifications, and consequently the acceptance of human rights as universal.
In MacIntyre’s claims his good reasons, instead, are seen as tools for demolishing the idea of universality. His view is rationally drawn and solidly framed in a central dilemma or question of how to justify moral theories, therefore how to justify rights as universal. He argues that with the American and French revolutions, when the Rights of Man and Citizen were set in 1789, the morality was deprived of its divine moral attribution, and consequently failed to fill the emptiness of the new modern moral structures. The failure is expressed by the incoherent use of the language of morality, as he demonstrates through the analysis of many illustrious Enlightenment and post-Enlightenment moral philosophers’ thinking. After that, McIntyre builds a moral, philosophical theory on the inconsistency of the idea of the universality of human rights in After Virtue. He attacks «the contemporary discourse of rights attached to human beings simply qua human beings» by analysing Gewirth’s theory through four critiques. What it emerges from these critiques is that the idea of rights genetically attached to human beings is inexistent. Believing in such rights, as MacIntyre argues in the claims, which are reported underneath the title of the present essay, is to believe in the existence of supernatural beings: witches and unicorns. Every attempt to justify such rights has failed. The failure is reflected through the incoherent language of morality that stems from the abandonment and disinterest of the Aristotelian concept of teleology from the Enlightenment philosophers.
The teleological idea lies in the belief that a natural end determines human beings’ life and this end has to be accomplished by proper preparation. With the elimination of the teleology, then, ethics has been deprived of its true content and context. The unclear ethical inheritance provides the inability to produce good reasons to support the concept of the universality of human rights from ethical perspectives as well as from historical perspectives. As MacIntyre’s claims state, the word rights, as it has been coined and divulged in the modern age, did not semantically exist in any ancient societies until the 15th century. Even after the 15th century and also in the 19th century the word ‘rights’ was not yet known or perceived, as it would be with the establishment of the United Nations. The lack of historical traces of the word ‘rights’ seems to lead MacIntyre to find another reason for the non-universality of rights. The reason is determined by the fact that the establishment of social institutions has mainly created the condition for the claim of rights to be applied to human beings in certain situations. Then, as socially shaped and influenced, the rights are automatically disqualified from the idea of universality. In this way, MacIntyre attacks any discourse on rights that justifies the idea of human rights as belonging by nature to human beings and their idea of universality. His analysis on human rights, as the outcome of social and environmental influences, is to some extent agreed in the sense that it is true that individuals claim rights when social and local conditions force them to seek protection and defence. However, what he seems to omit in his critique against the concept of the universality of human rights is the importance of human rights as tools, which have been designed to protect human values.
With the foundation of international institutions such as the UN, the human rights have gradually been perceived as “rightful entitlements”. This means that the individual, as the right holder, is entitled to claim for the rights that have been denied or threatened. The power of claiming respect for rights, especially for the human rights, which the UN has declared in the article 1, paragraph 2, to be one of its main purposes, has actively contributed to promoting the culture of the universality of human rights and the perception of their natural human belonging.
«The logic of universality», as Upendra Baxi states, seems to «entail interdependence of human rights» among human beings. Within this mutual dependency, human beings are recognised to be entitled to their rights and responsibilities. Responsibilities make everybody responsible for their rights, but also for the rights of others. Therefore, through an intertwined texture of collective and mutual values, the aspiration for everyone would be to create a world in which States become more aware and responsible for their actions whenever human rights are violated and guarantee basic standards of living for everyone. For this reason, human rights carry special weight because they cannot be breached without particular reasons. This perspective diverges from the views of MacIntyre’s claims. He refuses the universalism of rights on the fact that rights come from a constructed set of rules.
Human rights through notions of entitlements, autonomy, human frailty and social constructions
The idea of having rights, as Michael Freeman argues, is linked to the action of claiming: «rights are just claims or entitlements». In this way, he contends Macintyre’s perception of rights as mere fantasies. Rights do exist and their existence, according to Freeman, is supported by the idea that human beings are entitled to them.
Human rights as social, ethical and legal principles are normative rules. They draw attention to how to regulate relationships between states and individuals in their daily lives. They carry within themselves normative notions of «availability, physical accessibility, economic accessibility, information accessibility, quality, safety and cultural accessibility». All these conceptual and practical elements allow the right- holder to empower their rights and belief in the preservation of their worth when states are inclined to the wealth of its peoples through social and political development planning. Thus, this means that human rights can be limited and influenced by eligibility conditions that states impose through their domestic law and governing programs. If the role of the states becomes contradictory regarding its inconsistency on maintaining its obligations on the individuals’ rights, the function of human rights through other authority figures or extra-governing entities is to demand respect and dignity for human individuals as moral agents and to pressure the states to undertake their legal obligations. One of the most important aspects of the human rights to states is their power to influence states’ obligations towards individuals and sometimes play a significant role in re-evaluating the meaning of the public interest.
The novelty of human rights compared to other rights is revealed by the great and careful attention to the “individual autonomy”, as Henkin sustains when he focuses on the definition of human rights idea. The way the UDHR has been defined is the way of promoting freedom and equality that belong to the individual from the birth, as the article 1 in the UDHR states.
Human rights are entitled to human beings because equality, dignity, and freedom are naturally attributed to them. Consequently, it seems to emerge from this perspective that the concept of the individual emancipates itself from social conditioning to claim and affirm a new identity: an identity that implies values of liberty and autonomy. Liberty and autonomy are detected by Henkin as the central issues for political and philosophical movements in the 19th century as well as totalitarian regimes in the 20th century to accept the rights of the individual as universal and natural human entitlements. Only in the recent years, according to Henkin, human rights have been embraced as universal. The reason is that there is a “universal cultural intuition” that brings everybody to recognize the fact that some rights, which have overcome the cultural diversity, such as the right to life and the physical integrity are universal. Furthermore, everybody seems to have grown with the human rights idea as a vital instrument to be used against the abuse of political or social power, and the perspective of the precariousness of social institutions leads Bryan S. Turner to build up the justification of the universality of the concept of human rights through the sociology of the body.
The sociology of the body serves to fulfil a theoretical discourse on human “vulnerability” in conjunction with human rights. By pinpointing the frailty as a universal feature of human existence, Turner shifts the attention of the sociology of the citizenship, which is tied to the historical idea of the nation-state, to the sociology of rights, precisely, of the human rights. He aims to construct a theory of the universality of human rights through a sociological perspective. However, the idea of universality cannot be developed by the deployment of the theory of the classical sociology because it has been critical of the idea of “human” as a universal category for two reasons. The first reason is associated with the «social constructionist view of the human body, as a socially produced rather than a natural phenomenon», and «relativistic view of the culture (in which different cultures would produce different forms of reason and reasonableness)». The second reason is connected with the negative perspective of the rights as an outcome of an individualistic and egoistic society. Turner overcomes these limitations with the philosophical anthropology of the work of Arnold Gehlen and Helmut Plessner. In particular, in Gehlen’s work, he acknowledges human beings as ontologically frail and social institutions as precarious. These two elements lead to visualise the «dynamic and dialectical relationship between human frailty and social precariousness», and allow Turner to set up a common ground.
Human beings are frail because they are exposed to diseases, environmental impediments, pollution, natural disasters and biological decay of the body through the process of ageing. Moreover, human frailty seems to become more problematic by the precariousness of the institutions (which are represented by the state, law and church) that coerce and threaten human life instead of promoting and protecting it. Human beings, according to Turner, «are ontologically members of a community of suffering from which they cannot escape». Due to this pessimistic fatal human existence, the role of human rights comes into play as a guarantee and defence from threats and abuses of the institutions. Since the frailty of human beings’ life is experienced within collective social communities and communal abuses of the institutions, the notion of sympathy is invoked by Turner to emphasize and explain how compassion for the tragedies of others can bring individuals together and claim for their rights. Indeed, with the collective sentiments, human rights «gain their emotive force» as a ‘supra-social rights’ and «are crucial in protecting individuals against» violence deriving from the institutions. Therefore, the universality of human rights is shown through a sociological perspective alternative to the «enlightenment theories of social contract and individual rights», as necessary. He is one among few who have strived to construct a fundamental social theory of human rights .
Turner’s analysis, however, does not offer any precise definition of the human rights, as Malcolm Waters stresses out in his article Human rights and the Universalisation of the interests: towards a social constructionist approach. Formal definitions, he continues, are indispensable in conducting accurate analyses and assure that the topic on human rights reflects as much as possible to the factual social situations. What’s more, formal definitions can quickly lead to the source of the origin of the human rights. In this regard, Waters argues that human rights are a product of a particular historical and social context, and «human rights can encompass only those claims and entitlements that a political community recognises as fundamental to the humanity of its members» . Within this social constructivist’s view into the human rights’ field, Waters recognises that political interests have a significant influence on the institutionalisation of human rights.
The latter can be explained by ‘the configurations of interests’ and how these interests are differentiated between mass and elite within a society. Therefore, the differentiation of interests enables to show and explain why and how a human rights claim becomes institutionalised. This view disables Turner’s idea of the frailty- precariousness to explain the choice of human rights claims. A key task to theorise the origin of the institutionalisation of human rights, according to Waters, «would be to specify the conditions for the original specification and then the elaboration and enforcement of the Universal Declaration of Human rights of 1948». These conditions are expressed through four sets of interests . Consequently, «these interest-configurations and human rights norms and claims would elaborate on four proposals:
- ·In historical terms, human rights are a post-etatisation development related to the formation and dissolution of political communities at the national level. Human rights emerge when the state proved to be ineffective in realising state (or elite or ruling class) interests in the global arena.
- ·The ambit of human rights regulations will increase to the extent that the processes by which its social arrangements are made of incorporate power groups representing a diversity of interests.
- ·Human rights regulations will be effectively sanctioned to the extent that elite and mass interests converge and even coincide.
- ·Claims to protections and entitlements will elaborate to the extent that human rights have already been institutionalised» .
The social constructivist debate between Turner and Waters has been regarded as the beginning of the study of the human rights in contemporary sociology, as Kate Nash states. The theory of Waters has prevailed and influenced the contemporary sociologists. Therefore, through the social constructivist view, which pays attention to ‘the socially created nature of social life’, questions such as «how rights come into social being, how they operate in social practice, whose purposes rights serve and whose interest they protect» can be better analysed and observe the social actors who have been involved in the constructions of the human rights. For example, in International Relations, social constructivists have demonstrated that persuasion is another crucial tool along with force and reason to construct a human right. In particular, the persuasion of the NGOs has pushed elites to work together and in some cases to prevent human rights abuses. As Waters highlights above in his second point and then reinforced by Nash, the power and interests of different groups/actors are inseparable from the ethical use of the human rights. Indeed, human rights are subject to changes. «It is in practice, in the ways in which they are put to use, that human rights take on definite, relatively fixed, forms» , useful to a specific social, historical context, ideological orientations and political choices. Therefore, these relatively definite forms clearly show that the human rights are neither natural nor universal but they carry somehow the impression that makes them appear and be perceived as if they are.
The objective of this present discourse on human rights is to understand and bring forth the primacy of the universality of human rights. As discussed in the present essay, some scholars have expressed their opinions on the importance and scope of human rights. The human civilization has travelled in time from the earliest days to the 21st century, to a time where the world has become a global village a kind of scenario where all humans and places are interconnected and interdependent socially, politically, economically and environmentally. Today in the globalized universal family, the universality of human rights is a narrative that justifies its moral conviction of possessing innate rights. However, the narrative of the universality of human rights as construction has prevailed.