Human Rights and the ‘Never Again’ Justification; Part III of IV

Human Rights and the ‘Never Again’ Justification; Part III of IV

[Protesters, pictured above protest about the rate of murders committed against Boer/white farmers in South Africa.  According to the organisation Genocide-Watch, they are at risk of genocide, see here.  Are human rights laws likely to prevent genocide?  This is part 3 of a 4 part article examining the ‘Never Again’ justification for human rights laws; in other words the argument that such laws are necessary to prevent genocide.  (PI & PII)]

In 1947, shortly before the UNDHR was enacted, UNESCO commissioned an inquiry to collect opinions on the philosophical basis for individual human rights with the aim of reaching a consensus for the same.  The inquiry, which involved circa 150 intellectuals from various countries, ended in failure and its results were never published.[1]

Thus, the rights that were proclaimed to exist in the UNDHR were proclaimed as an act of faith.  Is there however a sound philosophical and/or jurisprudential basis for human rights laws?  The fundamental idea behind the UNDHR, is that all human beings have the rights contained therein solely by virtue of being human.

The preamble to the UNDHR states that:

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

Article 1 states:

All human beings are born free and equal in dignity and rights.  They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”

The justification of granting rights based on inherent human dignity is a mere tautology, as dignity simply means worth of respect.  One could use Kant’s categorical imperative, his argument that every human being must be viewed as an end in themselves and his argument that true freedom is only derived from following a priori reasoning based on the categorical imperative, as arguments in favour of an inherent and a priori dignity that is vested in every human being[2]

Yet the above precepts do not inexorably lead to recognition of inalienable the rights, such as those contained within the UNDHR or other similar legal instruments.  For example, one could justify all kinds of punishments based on retribution which in turn is based on Kant’s philosophy, that would infringe the UNDHR, the ECHR and certainly the more recent anti-death penalty protocol to the ECHR.

It is not clear whether being “endowed with reason and conscience” is what gives the individual dignity and/or justifies their human rights, what compels them to respect the human rights of others or both.  Either way not all individuals have reason and conscience and so this cannot serve as a philosophical or jurisprudential justification for the rights contained in the UNDHR.  This ties in with the implicit and counterintuitive proposition of the UNDHR, that all human beings have the same level of dignity, i.e. are worthy of the same level of respect.

I suspect, the specific retort to this, would be that every human being has a minimum level of dignity, which can be established a priori, by virtue of them being human.  This minimum level of dignity is what justifies human rights laws and means that a human beings human rights, can never be infringed.  Yet how is this conclusion arrived at with secular reasoning and without any empirical basis?

Furthermore, justifying rights in this way, i.e. based on a quality that can be said a priori, to exist in all human beings, even when wholly divorced from a community, belies the notion of human rights being qualified as opposed to inalienable, which is what occurs in practice.  The rights enshrined in the ECHR (which unlike the UNDHR is an enforceable legal instrument) are semantically (i.e. the way they are expressed and formulated in the ECHR) and practically, more akin to interests than rights, as interests unlike rights (in the normal semantic sense) can be compromised; the interest an individual has in say, freedom of expression, is acknowledged and so is the right of the community to compromise such interest in the right circumstances.  Only the prohibition on torture is absolute, unlike the right to life.  This is probably for the purposes of sending a moral message, rather than the right not to be tortured being considered more important than the right not to be killed.

The argument for human rights being based on justice is also a tautology, as justice according to the UNDHR is defined with reference to the rights contained therein; it is worth noting that the modern word justice is likely to be derived from the Latin ‘iustia’ which is closest to the modern word ‘equity’, i.e. fair distribution and this was the view of justice in antiquity.[3]

The overall retort to the aforementioned arguments, from proponents of human rights laws, is likely to be that human rights laws are an exigency; they are necessary to bring about a desirable state of affairs and it is all very well for philosophers and jurists to philosophise and question the basis of human rights, but they are concerned with the real world and real-world benefits.  This maybe so, but in which case human rights lose their moral force.  It is analogous to advocating a belief in God because this is functional, when the true power of religion is based on the faith of its proponents, i.e. the belief that God exists and not an understanding of potential ontological explanations of the concept of God.

To conclude this section, without a sound philosophical foundation, it is very difficult to sell human rights as an ideology that can become entrenched within the human consciousness and thereby prevent atrocities.

 

[1] See A. De Benoist ‘Beyond Human Rights’ 2004 at p40; UNESCO = United Nations Educational Scientific and Cultural Organisation

[2] I Kant ‘Groundwork to the Metaphysics of Morals’ (1785), tans M Gregor CUP 1997 at 4.403 & 4.448,4.452 &4.453; The Categorical Imperative is a more sophisticated version of the ethical golden rule; one should act only in accordance with a maxim that one would will to become a universal law

[3] Aristotle, supra