Philosophy of Human Rights

Human Rights, Philosophy of

Respect for human rights has come to be equated with civilization, and violations of human rights with barbarism and injustice. However, while human rights has become our common moral currency, the meaning of such rights is unclear. Human rights are not civil rights, specific claims recognized by a political community, particular entitlements of Roman citizens, foreign merchants, British subjects and the like. Rather, human rights are alleged to be a standard by which civil rights, or legally protected choices, are to be measured and evaluated.

The premodern equivalent of human rights was natural right or natural justice, later codified in Christian theology as natural law. But Platonic natural justice or Thomistic natural law were standards of the right relation between people, not possessions of individuals or individual claims against others. Modern rights are natural rights privatized and personalized, as in "my rights" and "her rights".

The opposite of rights is not wrongs but duties or obligations. If one has a right, then one has no obligation; if an obligation, then no right. Our obligations prescribe what is morally right; our rights permit us to do or not to do what is morally right. Rights presuppose the right to do wrong, the choice of morally attractive or repellent uses of one's property or power. No contradiction is entailed in supporting the right of national self-determination, while holding that secession is politically disastrous.

Human rights are claims or entitlements that belong to human beings by virtue of their humanity, not by virtue of participation in a specific tradition or historical practice. Claims of human rights are characteristically indifferent to the historical genesis of specific rights in concrete struggles of particular classes, nations and religions, and the historical justification of special rights in limiting violent conflict. This unhistorical approach to human rights was popularized by John Rawls's A Theory of Justice (1971). Canadian history, not an abstract principle of fairness, might justify provincial funding of Catholic, but not Jewish, Islamic or Baptist, education; hunting and fishing rights for native Canadians, but not white settlers; linguistic rights for French, but not Ukrainian or Chinese, Canadians.

The function of rights for the framers of the American constitution and the authors of The Federalist Papers was to limit the power of Congress and state legislatures, to prevent them infringing the rights of individuals, particularly the rights of property and contract. Rights functioned, and continue to function, to inhibit elected representatives from imposing the will of a majority upon minorities and individuals, or from embarking on social policies that jeopardize private and corporate property, and the right to contract and trade freely. Critics of a rights-based politics think the language of human rights is an ideology of capitalism that impedes states from limiting the sway of the global market. Further, critics of entrenched rights and the judicial review of legislation point to the judicialization of politics and the politicization of the judiciary.

The tension between the British tradition of parliamentary supremacy and the American tradition of constitutionally entrenched rights was manifest in the CANADIAN CHARTER OF RIGHTS AND FREEDOMS, of which sections 32 and 33 enable legislatures to enact laws "notwithstanding" the provisions of the Charter. The Americanization of Canadian political culture is evident in the fact that English Canadians hate the notwithstanding clause, as well as the only part of the Charter that mattered to Pierre Elliott TRUDEAU, namely, the linguistic rights that would remove the "special status" of Québec. Successive governments of Québec have not accepted the Charter, because they have been unwilling to accept federally appointed judges curtailing the powers of the Québec national assembly. English Canadians have been unwilling to accept the amendments to the Charter proposed in the MEECH LAKE ACCORD and CHARLOTTETOWN ACCORD. Thus the comity of Francophone and Anglophone Canadians has been shattered, despite the near universal commitment of all Canadians to the rhetoric of human rights, and their constitutional entrenchment.

George GRANT wrote that what distinguished Canadians from Americans, and conservatives and socialists from liberals, was the recognition of collective as well as individual rights. Will Kymlicka comes closer than American liberals to recognizing rights of communities but insists that communities, in attempting to preserve their distinctive identities, have no right to limit individual rights. Since individual rights trump collective rights, the self-determination of First Nations and Québécois must be subject to courts adjudicating the security of individual rights. Perhaps the language of rights is inherently individualist, and nationalists would do better to refer to common goods, collective interests or communal purposes rather than force the individualist language of rights into collective projects.

To be sceptical about the meaning of human rights does not mean that one is indifferent to murder, torture and rape, or that one does not support Amnesty International in publicizing the plight of political prisoners around the world. On the contrary, one might argue that to refer to rape as a deliberate weapon of war merely as a human rights violation is to understate grossly the atrocity, to reduce it to a mere instance of a general category of a human rights abuse, or to a standardized move in a diplomatic chess game. Perhaps human conduct would be better served by concentrating on specific rights - say, of refugees - located in a particular situation and generated by actual struggles, rather than claiming human rights, abstracted from specific content and historical context.