The JOHNS HOPKINS UNIVERSITY PRESS The Philosophic Foundations of Human Rights Author(s): Jerome J. Shestack Source: Human Rights Quarterly, Vol. 20, No. 2 (May, 1998), pp. 201-234 Published by: The Johns Hopkins University Press Stable URL: http://www.jstor.org/stable/762764 Accessed: 07/09/2010 11:56 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/action/showPublisher?publisherCode=jhup. Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org. 9 STOR The Johns Hopkins University Press is collaborating with JSTOR to digitize, preserve and extend access to Human Rights Quarterly. http://www.jstor.org HUMAN RIGHTS QUARTERLY The Philosophie Foundations of Human Rights Jerome J. Shestack* I. INTRODUCTION Today, through the United Nations and its half century of enactments, an impressive body of human rights doctrine is embodied in international law. This is in sharp contrast to the situation fifty years ago when there was no body of international human rights law. Having come this far legally, why then should one still be concerned with the philosophic foundations of such international human rights law? To philosophize, Plato taught, is to come to know oneself. Others say that the special function of philosophy is to deepen our understanding of truth. Still others see the philosopher as a judge, assessing the varieties of human experience and pronouncing on the claim to knowledge.1 Yet, still more reasons exist for exploring the philosophic underpinnings of human rights law. First, one's own attitudes toward the subject of international human rights law are likely to remain obscure unless one understands the philosophies that shape them.2 Piaget's statement that "morality is the logic of action" contains a striking insight. * Jerome J. Shestack is President of the American Bar Association. He is a past United States Ambassador to the United Nations Commission on Human Rights. 1. The term "justification of moral principles" is used here in the sense of "warranted assertions" containing qualities that go beyond local and transient Tightness. I believe that most of what passes for discussion of "truth" in philosophy is such justification. See Hilary Putnam, Are Legal Values Made or Discovered, 1 Lecal Theory 5 (1995) (analyzing truth and warranted assertions). 2. A familiar anecdote is that of Gertrude Stein, who, on her deathbed, asked of her friends: "What is the answer? What is the answer?" A philosopher friend leaned over and spoke gently in her ear. Gertrude Stein closed her eyes and whispered: "Then, what is the question? What is the question?" Identifying the pertinent questions is a large measure of the philosophic enterprise. Human Rights Quarterly 20 (1998) 201-234 © 1998 by The Johns Hopkins University Press 202 HUMAN RIGHTS QUARTERLY Vol. 20 Second, if one understands the law addressed, one is more amenable to the authority of the international law of human rights. That trait is particularly valuable for an arena that still lacks formal enforcement mechanisms. Stated another way, one furthers fidelity to human rights law by understanding the moral justifications that underlie that law. Third, understanding the philosophic foundations of the law helps one devise a translation formula that will permit men and women to speak to each other across the gulfs of creed and dogma, a necessary exercise for universal recognition of international law principles. What then is the segment of philosophy examined when delving into human rights? The answer is that human rights are a set of moral principles and their justification lies in the province of moral philosophy. This article explores that field.3 This article will first address the historical sources of human rights justifications, next survey key modern human rights theories, and then analyze some of the current conflicts in human rights theory. At best, it can only touch on the teachings in a field that is complex, vast, and too often obscure.4 II. THE NATURE OF HUMAN RIGHTS One of the initial questions in any philosophic inquiry is what is meant by human rights. The question is not trivial. Human beings, as Sartre said, are "stalkers of meaning." Meaning tells one "why." Particularly in the international sphere, where diverse cultures are involved, where positivist underpinnings are shaky, and where implementation mechanisms are fragile, definition can be crucial. Indeed, some philosophic schools assert that the entire task of philosophy centers on meaning. How one understands the meaning of human rights will influence one's judgment on such issues as which rights are regarded as universal, which should be given priority, which can be overruled by other interests, which call for international 3. It bears emphasis that while the modern human rights theories discussed below have been articulated largely by Western philosophers, the moral concepts are not exclusively Western and find counterparts in non-Western thought as well. Of course, the truth of a philosophical principle should not depend on its geography but instead on the soundness of its foundation. Self-determination, for example, is a Western-originated concept. 4. The last fifteen years alone have produced numerous volumes and articles on moral philosophy, though surprisingly few have dealt directly with human rights. The dense, specialized lexicon that most theorists use unfortunately means that they fail to reach the wide audience that they should seek. 1998 Philosophie Foundations of Human Rights 203 pressures, which can demand programs for implementation, and for which one will fight. What is meant by human rights? To speak of human rights requires a conception of what rights one possesses by virtue of being human. That does not mean human rights in the self-evident sense that those who have them are human, but rather, the rights that human beings have simply because they are human beings and independent of their varying social circumstances and degrees of merit. Some scholars identify human rights as those that are "important," "moral," and "universal." It is comforting to adorn human rights with those characteristics; but, such attributes themselves contain ambiguities. For example, when one says a right is "important" enough to be a human right, one may be speaking of one or more of the following qualities: (1) intrinsic value; (2) instrumental value; (3) value to a scheme of rights; (4) importance in not being outweighed by other considerations; or (5) importance as structural support for the system of the good life. "Universal" and "moral" are perhaps even more complicated words. What makes certain rights universal, moral, and important, and who decides?3 Intuitive moral philosophers claim that definitions of human rights are futile because they involve moral judgments that must be self-evident and that are not further explicable. Other moral philosophers focus on the consequences of human rights and their purpose. The prescriptivist school says that one should not be concerned with what is sought to be achieved by issuing a moral (human rights) utterance but with that which is actually accomplished. The definitional process is not easier when examining the term human rights. Certainly "rights" is a chameleon-like term that can describe a variety of legal relationships.6 Sometimes "right" is used in its strict sense of the right holder being entitled to something with a correlative duty in another. Sometimes "right" is used to indicate an immunityfrom having a legal status altered. Sometimes it indicates a privilege to do something. Sometimes it refers to a power to create a legal relationship. Although all of these terms have been identified as rights, each invokes different protections. For example, when speaking of an inalienable right, does one mean a right to which no expectations or limitations are valid? Or does one mean a prima facie right with a special burden on the proponent of any limitation? Or is it a principle that one must follow unless some other moral principle weighty enough to allow abridgment arises? 5. For a discussion of the difficulties in determining the universality of a proposition, see Richard Mervyn Hare, Freedom and Reason 10-13, 30 (1963). 6. See Wesiey Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (Yale Univ. Press, 1923). 204 HUMAN RIGHTS QUARTERLY Vol. 20 If one classifies a right as a claim against a government to refrain from certain acts, such as not to torture its citizens or deny them freedom of speech, religion, or emigration, then other complexities arise. If a particular claim stems from a metaphysical concept such as the nature of humanity, or from a religious concept such as the divine will, or from some other a priori concept, then the claim may really be an immunity to which normative judgments should not apply. If, however, the claim is based on certain interests such as the common good, other problems arise such as the need to determine what constitutes the common good, or the need to balance other societal interests, that may allow a wide variety of interpretations not supportive of individual human rights demands. If speaking of the "rights" in the International Covenant on Economic, Social and Cultural Rights/ such as the right to social security, health, education, fair wages, a decent standard of living, and even holidays with pay, what does one intend? Are these rights that individuals can realistically assert, or are they only aspirational goals? Assuming they are rights as intended, on whom are the correlative duties imposed? If one speaks of privileges, other concerns arise. If the privileges are granted by the state, then presumably the state is entitled to condition them. Does the right of a state to derogate from rights in an international covenant mean that the rights are, in fact, only privileges? Here too, the answer is connected to the moral strength and inviolability of the "right" or "privilege" that is involved. The definitional answers to these questions are obviously complex. To summarize, even where international law has established a conventional system of human rights, a philosophic understanding of the nature of rights is not just an academic exercise. Understanding the nature of the "right" involved can help clarify one's consideration of the degree of protection available, the nature of derogations or exceptions, the priorities to be afforded to various rights, the question of the hierarchical relationships in a series of rights, the question of whether rights "trump" competing claims based on cultural rooting, and similar problems. To be sure, the answers to these questions may evolve over time through legal rulings, interpretations, decisions, and pragmatic compromises. But how those answers emerge will be influenced, if not driven by, the moral justifications of the human rights in issue. A starting point in understanding the moral foundations of human rights law is to examine the sources of human rights claims. From where does one 7. International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, 993 U.N.T.S. 3, CA. Res. 2200 (XXI), U.N. CAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966) (entered into force 3 Jan. 1976). 1998 Philosophie Foundations of Human Rights 205 derive the moral justifications that can be urged for or against human rights law? What is their scope or content, and how compelling are they? III. SOURCES OF HUMAN RIGHTS A. Religion To be sure, the term "human rights" as such is not found in traditional religions. Nonetheless, theology presents the basis for a human rights theory stemming from a law higher than that of the state and whose source is the Supreme Being. If one accepts the premise of the Old Testament that Adam was created in the "image of God," this implies that the divine stamp gives human beings a high value of worth.8 In a similar vein the Quran says, "surely we have accorded dignity to the sons of man." So too, in the Bhagavad-Gita, "Who sees his Lord/Within every creature/Deathlessly dwelling/Amidst the mortal: That man sees truly . . . ." In a religious context every human being is considered sacred. Accepting a universal common father gives rise to a common humanity, and from this flows a universality of certain rights. Because rights stem from a divine source, they are inalienable by mortal authority. This concept is found not only in the Judeo-Christian tradition, but also in Islam and other religions with a deistic base.9 Even if one accepts the revealed truth of the fatherhood of God and the brotherhood of all humans, the problem of which human rights flow therefrom remains. Equality of all human beings in the eyes of God would seem a necessary development from the common creation by God, but freedom to live as one prefers is not. Indeed, religions generally impose severe limitations on individual freedom. For most religions, the emphasis falls on duties rather than rights. Moreover, revelation is capable of differing interpretations, and some religions have been quite restrictive toward slaves, women, and nonbelievers, even though all are God's creations. Thus, at least as practiced, serious incompatibilities exist between various 8. An appealing expression of this comes from the Talmud: A man may coin several coins with the same matrix and all will be similar, but the King of Kings, the Almighty, has coined every man with the same matrix of Adam and no one is similar to the other. Therefore, every man ought to say the whole world has been created for me. Sanhedrin 38:1 (Adin Steinsaltz ed., Random House 1989). 9. See generally Simon Greenberg, Foundations of a Faith (1967); Leonard Swidler, Religious Liberty and Human Rights: In Nations and in Religions (1986); Ann Elizabeth Mayer, Islam and Human Rights (1991). 206 HUMAN RIGHTS QUARTERLY Vol. 20 religious practices and the scope of human rights structured by the United Nations. However, religious philosophers of all faiths are engaged in the process of interpreting religious doctrines toward the end of effecting a reconciliation with basic human rights prescriptions. This process is largely via hermeneutic exercise, namely reinterpretation of a religion's sacred texts through both historical explication and a type of prophetic application to modern conditions. Thus, religious doctrine offers a promising possibility of constructing a broad intercultural rationale that supports the various fundamental principles of equality and justice that underlie international human rights. Indeed, once the leap to belief has been made, religion may be the most attractive of the theoretical approaches. When human beings are not visualized in God's image then their basic rights may well lose their metaphysical raison d'etre. On the other hand, the concept of human beings created in the image of God certainly endows men and women with a worth and dignity from which the components of a comprehensive human rights system can flow logically. B. Natural Law: The Autonomous Individual Philosophers and jurists did not leave human rights solely to theologians. In their search for a law that was higher than positive law, they developed the theory of natural law. Although natural law theory has underpinnings in Sophocles and Aristotle, it was first elaborated by the stoics of the Greek Hellenistic period, and later by those of the Roman period. Natural law, they believed, embodied those elementary principles of justice which were right reason, i.e., in accordance with nature, unalterable, and eternal. A classic example is that of Antigone who defied Creon's command not to bury her slain brother by claiming that she was obeying immutable laws higher then the ruler's command. Medieval Christian philosophers, such as Thomas Aquinas, put great stress on natural law as conferring certain immutable rights upon individuals as part of the law of God.10 However, critical limitations in the medieval concepts that recognized slavery and serfdom excluded central ideas of freedom and equality. As feudalism declined, modern secular theories of natural law arose, particularly as enunciated by Grotius and Pufendorf. Their philosophy detached natural law from religion, laying the groundwork for the secular, 10. St. Thomas Aquinas, Summa Theolocica Lib. II, pt. II (1475). 1998 Philosophie Foundations of Human Rights 207 rationalistic version of modern natural law. According to Grotius, a natural characteristic of human beings is the social impulse to live peacefully and in harmony with others. Whatever conformed to the nature of men and women as rational, social beings was right and just; whatever opposed it by disturbing the social harmony was wrong and unjust. Grotius defined natural law as a "dictate of right reason."" He claimed that an act, according to whether it is or is not in conformity with rational nature, has in it a quality of moral necessity or moral baseness. Grotius was also a father of modern international law. He saw the law of nations as embodying both laws that have as their source the will of man and laws derived from the principles of the law of nature. This theory, of course, has immense importance for the legitimacy of international law. Natural law theory led to natural rights theory—the theory most closely associated with modem human rights. The chief exponent of this theory was John Locke, who developed his philosophy within the framework of seventeenth century humanism and political activity, known as the Age of Enlightenment.12 Locke imagined the existence of human beings in a state of nature. In that state men and women were in a state of freedom, able to determine their actions, and also in a state of equality in the sense that no one was subjected to the will or authority of another. However, to end the hazards and inconveniences of the state of nature, men and women entered into a "social contract" by which they mutually agreed to form a community and set up a body politic. Still, in setting up that political authority, individuals retained the natural rights of life, liberty, and property. Government was obliged to protect the natural rights of its subjects, and if government neglected this obligation, it forfeited its validity and office.13 Natural rights theory was the philosophic impetus for the wave of revolt against absolutism during the late eighteenth century. It is visible in the French Declaration of the Rights of Man,14 in the US Declaration of Independence,15 in the constitutions of numerous states created upon liberation from colonialism, and in the principal UN human rights documents. 11. Hugo Grotius, De Jure Belli et Pacis (Book 1, 1689). See also Heinrich Albert Rommen, The Natural Law: A Study in Legal and Social History and Philosophy (1948). 12. John Locke, The Second Treatise of Government (1952). 13. Nearly a century later, Rousseau refined the concept of a social contract. He saw the first virtue of the social contract as its capacity to organize in collective defense of liberty and order. Second, the social contract establishes a community with potential for doing justice, thereby giving the citizens the morality that had been wanting in the state of nature. Jean-Jacques Rousseau, On the Social Contract (Judith R. Masters trans., St. Martin's Press 1978) (1762). 14. Declaration of the Rights of Man and of Citizens (France 1789). 15. The Declaration of Independence (US 1776). 208 HUMAN RIGHTS QUARTERLY Vol. 20 Natural rights theory makes an important contribution to human rights. It affords an appeal from the realities of naked power to a higher authority that is asserted for the protection of human rights. It identifies with and provides security for human freedom and equality, from which other human rights easily flow. It also provides properties of security and support for a human rights system, both domestically and internationally. From a philosophical viewpoint, the critical problem that natural rights doctrine faced is how to determine the norms that are to be considered as part of the law of nature and therefore inalienable, or at least prima facie inalienable. Under Locke's view of human beings in the state of nature, all that was needed was the opportunity to be self-dependent; life, liberty, and property were the inherent rights that met this demand. But what about a world unlike the times of Locke, in which ample resources are not available to satisfy human needs? Does natural law theory have the flexibility to satisfy new claims based on contemporary conditions and modern human understanding? Perhaps it does, but that very potential for flexibility has formed the basis for the chief criticism of natural rights theory. Critics pointed out that most of the norm setting of natural rights theories contain a priori elements deduced by the norm setter. In short, the principal problem with natural law is that the rights considered to be natural can differ from theorist to theorist, depending upon their conceptions of nature. Because of this and other difficulties, natural rights theory became unpopular with legal scholars and philosophers.'6 However, in revised form, natural rights philosophy had a renaissance in the aftermath of World War II, as discussed below. C. Positivism: The Authority of the State The assault upon natural law intensified during the nineteenth and twentieth centuries. John Stuart Mill claimed that rights are founded on utility. Karl von Savigny in Germany, and Sir Henry Maine in England, claimed that rights are a function of cultural variables. However, the most serious attack on natural law came from a doctrine called legal positivism. This philosophy came to dominate legal theory during most of the nineteenth century and commands considerable allegiance in the twentieth. 16. See, e.g., Jeremy Bentham, The Book of Fallacies (1824) (discussing natural rights as so much "bawling on paper"). Oft-quoted is his colorful attack: "Right is a child of law; from real laws come real rights, but from imaginary law, from laws of nature, come imaginary rights____Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense,—nonsense upon stilts." Id. 1998 Philosophie Foundations of Human Rights 209 Classical positivist philosophers deny an a priori source of rights and assume that all authority stems from what the state and officials have prescribed. This approach rejects any attempt to discern and articulate an idea of law transcending the empirical realities of existing legal systems. Under positivist theory, the source of human rights is found only in the enactments of a system of law with sanctions attached to it. Views on what the law "ought" to be have no place in law and are cognitively worthless. The theme that haunts positivist exponents is the need to distinguish with maximum clarity law as it is from law as it ought to be, and they condemned natural law thinkers because they had blurred this vital distinction. In its essence, positivism negates the moral philosophic basis of human rights.17 By divorcing a legal system from the ethical and moral foundations of society, positive law encourages the belief that the law must be obeyed, no matter how immoral it may be, or however it disregards the world of the individual. The anti-Semitic edicts of the Nazis, although abhorrent to moral law, were obeyed as positive law. The same is true of the immoral apartheid practices that prevailed in South Africa for many years. The fact that positivist philosophy has been used to justify obedience to iniquitous laws has been a central focus for much of the modern criticism of that doctrine. Critics of positivism maintain that unjust laws not only lack a capacity to demand fidelity, but also do not deserve the name of law because they lack internal morality. Even granting the validity of the criticism, the positivist contribution can still be significant. If the state's processes can be brought to bear in the protection of human rights, it becomes easier to focus upon the specific implementation that is necessary for the protection of particular rights. Indeed, positivist thinkers such as Jeremy Bentham and John Austin were often in the vanguard of those who sought to bring about reform in the law. Always under human control, a positivist system also offers flexibility to meet changing needs. The methodology of the positivist jurists in the technical building of legal conceptions is also pragmatically useful in developing a system of rights in international law. For example, the UN human rights treaties, being rules developed by the sovereign states themselves and then made part of a system of international law, reflect a positive set of rights. While many states may differ on the theoretical basis of these rules, the rules provide a legal grounding for human rights protection. On the other hand, in theory, positivism tends to undermine an international basis for human rights 17. See, e.g., Herbert Lionel Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593 (1955); John Austin, The Province of Jurisprudence Determined (Wilfrid E. Rumble ed., 1985). 210 HUMAN RIGHTS QUARTERLY Vol. 20 because of the emphasis positivists place on the supremacy of national sovereignty without accepting the restraining influence of an inherent right above the state. Under this view, rules of international law are not law but merely rules of positive morality set or imposed by opinion. Furthermore, by emphasizing the role of the nation state as the source of law, the positivist approach produces the view that the individual has no status in international law. D. Marxism: Man as a Specie Being Marxist theory, like natural law, is also concerned with the nature of human beings. However, in Marxism, the view of men and women is not one of autonomous individuals with rights developed from either a divine or inherent nature, but of men and women as "specie beings."18 While Marxism fell along with the fall of Communism in Eastern Europe, it was a dominant philosophy in much of the world for many years; in variant forms, Marxism has residual influence, particularly in assigning values to social and economic rights. Marx regarded the law of nature approach to human rights as idealistic and ahistorical. He saw nothing natural or inalienable about human rights. In a society in which capitalists monopolize the means of production, Marx regarded the notion of individual rights as a bourgeois illusion. Concepts such as law, justice, morality, democracy, freedom, etc., were considered historical categories, whose content was determined by the material conditions and the social circumstances of a people. As the conditions of life change, so the content of notions and ideas may change. Marxism sees a person's essence as the potential to use one's abilities to the fullest and to satisfy one's needs.19 In capitalist society, production is controlled by a few. Consequently, such a society cannot satisfy those individual needs. An actualization of potential is contingent on the return of men and women to themselves as social beings, which occurs in a communist society devoid of class conflict. However, until that stage is reached, the state is a social collectivity and is the vehicle for the transformation of society. Such a conceptualization of the nature of society precludes the existence of individual rights rooted in the state of nature that are prior to the state. The only rights are those granted by the state, and their exercise is contingent on the fulfillment of obligations to society and to the state. 18. See Sir Isaiah Berlin, Two Concepts of Liberty (1958). 19. Karl Marx, The Economic and Philosophic Manuscripts of 1844 (Martin Milligan trans., Dirk J. Struik ed., 1969). 1998 Philosophic Foundations of Human Rights 211 The Marxist system of rights has often been referred to as "parental/' with the authoritarian political body providing the sole guidance in value choice. The creation of such a "specie being" is a type of paternalism that not only ignores transcendental reason, but negates individuality.20 In practice, pursuit of the prior claims of society as reflected in the interests of the Communist state has resulted in systematic suppression of individual civil and political rights. On an international level, Marxist theory proved incompatible with a functioning universal system of human rights. The prior claims of a Communist society do not recognize overruling by international norms. While Communist governments admitted a theoretical recognition of the competence of the international community to establish transnational norms, the application of those norms was held to be a matter of exclusive domestic jurisdiction. Communist states repeatedly asserted in international fora that their alleged abuse of human rights was a matter of exclusive domestic jurisdiction, not just as a matter of protecting sovereignty or avoiding the embarrassment of international examination, but the assertions reflected communist theory of the unlimited role of the state to decide what is good for the specie beings.21 Be that as it may, Marxism itself now ironically has become a past historical category. E. The Sociological Approach: Process and Interests To many scholars, each of the theories of rights discussed thus far is deficient. Moreover, the twentieth century is quite a different place from the nineteenth. Natural and social sciences have developed and begun to increase understanding about people and their cultures, their conflicts, and their interests. Anthropology, psychology, and other disciplines lent their insights. These developments inspired what has been called the sociological school of jurisprudence. "School" is perhaps a misnomer, because what has evolved is a number of disparate theories that have the common denominator of trying to line up the law with the facts of human life in society. Sociological jurisprudence tends to move away from both a priori theories and analytical types of jurisprudence. This approach, insofar as it relates to human rights, sometimes directs attention to the questions of institutional development, sometimes focuses on specific problems of public policy that 20. No attempt is made here to deal with some of the substantial reinterpretation and modification of Marxist theory utilized by various Third World Socialist countries. See Juuus Nyerere, Ujamaa: Essays on Socialism (1968). 21. See, e.g., Valerii Chaudze, To Defend These Rights: Human Rights and the Soviet Union (Guy Daniels trans., 1974). 212 HUMAN RIGHTS QUARTERLY Vol. 20 have a bearing on human rights, and sometimes aims at classifying behavioral dimensions of law and society. In a human rights context, the approach is useful because it identifies the empirical components of a human rights system in the context of the social process.22 A primary contribution of the sociological school is its emphasis on obtaining a just equilibrium of interests among prevailing moral sentiments and the social and economic conditions of time and place. In many ways this approach can be said to build on William James' pragmatic principle that "the essence of good is simply to satisfy demand."23 This approach also was related to the development in twentieth century society of increased demands for a variety of wants beyond classical civil and political liberties—such matters as help for the unemployed, the handicapped, the underprivileged, minorities, and other elements of society. It is not possible here to outline the particular approaches of the leading sociological thinkers, but Roscoe Pound's analysis merits special reference. Pound pointed out that during the nineteenth century, the history of the law was written largely as a record of an increasing recognition of individual rights.24 In the twentieth century, however, this history should be written in terms of a continually wider recognition of human wants, human demands, and social interests. Pound catalogued the interests as individual, public, and social. He did not try to give value preferences to these interests. His guiding principle was one of "social engineering," that is, the ordering of human relations through politically organized society so as to secure all interests insofar as possible with the least sacrifice of the totality of interests. The approach of Pound and his progeny usefully enlarges one's understanding of the scope of human rights and their correlation with demands. His identification of the interests involved takes into account the realities of the social process; he shows one how to focus on rights in terms of what concerns people and what they want. He makes one "result-minded, cause-minded and process-minded."25 However, an approach that merely catalogues human demands is deficient in failing to focus on how rights are interrelated or what the priorities should be. The sociological school does not answer the logical question of how a normative conclusion about rights can be derived empirically from factual premises such as having interests. A descriptive science in the social human rights field is helpful, "but is not enough" to satisfy the need of goal identification.26 The sociological approach thus provides a useful method, but a method in need of a philosophy. Nonethe- 22. See Karl Llewellyn, Jurisprudence: Realism in Theory and Practice (1962). 23. William James, Pragmatism (1975). 24. 1 Roscoe Pound, Jurisprudence § 8 (1959). 25. 3 Roscoe Pound, Jurisprudence (1959). 26. See Karl Llewellyn, Book Review, 28 U. Chi. L. Rev. 174 (1960). 1998 Philosophie Foundations of Human Rights 213 less, by providing a quantitative survey of the interests that demand satisfaction, this school sharpens perceptions of the values involved and the policies necessary to achieve them. F. Rights Based on the Value of Utility Another theory that has played a commanding role in political and moral philosophy is utilitarianism. Utilitarianism is a maximizing and collectivizing principle that requires governments to maximize the total net sum of the happiness of all their subjects. This principle is in contrast to natural rights theory, which is a distributive and individualizing principle that assigns priority to specific basic interests of each individual subject. Classic utilitarianism, the most explored branch of this school, is a moral theory that judges the Tightness of actions affecting outcomes in terms of securing the greatest happiness to all concerned. Utilitarian theory played a commanding role in the philosophy and political theory of the nineteenth century and continues with some vigor in the twentieth. Jeremy Bentham, who expounded classical utilitarianism, believed that every human decision was motivated by some calculation of pleasure and pain. He thought that every political decision should be made on the same calculation, that is, to maximize the net produce of pleasure over pain. Hence, both governments and the limits of governments were to be judged not by reference to abstract individual rights, but in terms of what tends to promote the greatest happiness of the greatest number. Because all count equally at the primary level, anyone may have to accept sacrifices if the benefits they yield to others are large enough to outweigh such sacrifices. Bentham's happiness principle enjoyed enormous popularity and influence during the first half of the nineteenth century when most reformers spoke the language of utilitarianism. Nonetheless, Bentham's principle met with no shortage of criticism. His "felicific calculus," that is, adding and subtracting the pleasure and pain units of different persons to determine what would produce the greatest net balance of happiness, has come to be viewed as a practical, if not a theoretic, impossibility. Later utilitarian thinkers have restated the doctrine in terms of "revealed preferences."27 Here, the utilitarian guide for governmental conduct would 27. See Joseph Raz, The Morality of Freedom 267-87 (1986). "Consequentialism" is a school of modern moral philosophy that embraces the family of utilitarian theories, some egoistic in principle, some altruistic, some benevolent, etc. Generally, it may be described as holding that actions and other objects of moral assessment are justified only if their consequences have more intrinsic value than alternate actions. The term "consequentialism" was introduced into technical philosophy in 1958 by G.E.M. Anscombe. Consequentialist theorists are often at odds with each other. 214 HUMAN RIGHTS QUARTERLY Vol. 20 not be pleasure or happiness, but an economically focused value of general welfare, reflecting the maximum satisfaction and minimum frustration of wants and preferences. Such restatements of utilitarian theory have an obvious appeal in the sphere of economic decision making. Even then, conceptual and practical problems plague utilitarian value theory: the ambiguities of the welfare concept, the nature of the person who is the subject of welfare, the uncertain basis of individual preference of one whose satisfaction is at issue, and other problems inherent in the process of identifying the consequences of an act and in estimating the value of the consequences. The approach to the problem of rights through theories of values has an obvious attraction. Utilitarian theories have a teleological structure, that is, they seek to define notions of right solely in terms of tendencies to promote certain specified ends. An ontological commitment may not be necessary here (at least, it is not so evident) because values (equality, happiness, liberty, dignity, respect, etc.) concern behavior and are not known in a metaphysical sense but rather are accepted and acted upon. The essential criticism of utilitarianism is that it fails to recognize individual autonomy; it fails to take rights seriously.28 Utilitarianism, however refined, retains the central principle of maximizing the aggregate desires or general welfare as the ultimate criterion of value. While utilitarianism treats persons as equals, it does so only in the sense of including them in the mathematical equation, but not in the sense of attributing worth to each individual. Under the utilitarian equation, one individual's desires or welfare may be sacrificed as long as aggregate satisfaction or welfare is increased. Utilitarianism thus fails to treat persons as equals, in that it literally dissolves moral personality into utilitarian aggregates. Moreover, the mere increase in aggregate happiness or welfare, if abstracted from questions of distribution and worth of the individual, is not a real value or true moral goal. Hence, despite the egalitarian pretensions of utilitarian doctrine, it has a sinister side in which the well-being of the individual may be sacrificed for what are claimed to be aggregate interests, and justice and right have no secure place. Utilitarian philosophy thus leaves liberty and rights vulnerable to contingencies, and therefore at risk.29 In an era characterized by inhumanity, the dark side of utilitarianism made the philosophy too suspect 28. An oft-quoted criticism is Rawls' observation that "[ujtilitarianism does not take seriously the distinction between persons." John Rawls, A Theory of Justice 187 (1971). 29. Some utilitarians, notably John Stuart Mill, allow that in moral and legal practice, justice and rights may be considerations superior to interests and to the liberty to pursue the satisfaction of interests. But they insist that justice and rights are derivative of interests and desires and are to be given context by determining what is necessary to maximize the satisfaction of the latter. That, of course, makes justice and rights contingent and does not satisfy the theories that assign rights superior moral standing. In other words, so long 1998 Philosophie Foundations of Human Rights 215 to be accepted as a prevailing philosophy. Indeed, most modern moral theorists seem to have reached an antiutilitarian consensus, at least in recognizing certain basic individual rights as constraints on any maximizing aggregative principle. In Ronald Dworkin's felicitous phrase, rights must be "trumps" over countervailing utilitarian calculations. IV. MODERN HUMAN RIGHTS THEORIES A. Rights Based on Natural Rights: Core Rights The aftermath of World War II brought about a revival of natural rights theory. Certainly, this was due in part to the revulsion against Naziism and the horrors that could emanate from a positivist system in which the individual counted for nothing. It was not surprising that a renewed search for immutable principles to protect humanity against such brutality emerged. Of course, a large variety of presentations and analyses among scholars exist addressing theories of moral philosophy.30 While the new rights philosophers do not wear the same metaphysical dress as the early expounders of the Rights of Man, most adopt what may be called a qualified natural law approach in that they try to identify the values that have an eternal and universal aspect. They agree that only a positive legal system that meets those values can function as an effective legal system. In a larger sense, the object of much of revived natural rights thought can be viewed as an attempt to work out the principles that might reconcile the "is" and the "ought" in law. The common theme emerging from a huge family of theories is that a minimum absolute or core postulate of any just and universal system of rights must include some recognition of the value of individual freedom or autonomy. as utility is what Mill said it is, namely, "the ultimate appeal on all ethical questions," individual rights can never be secure. John Stuart Mm, On Liberty (Appleton-Century-Crofts&Co. 1947) (1959). 30. Modern rights theorists display a number of common characteristics. First, they are eclectic, borrowing from each other's insights so that it is somewhat imprecise to characterize their theories as simply utilitarian, naturalist, positivist, or any of the other classifications that philosophers use. Second, most rights theorists recognize the need to identify the justifications that can validate the moral principles of human rights. Third, they acknowledge the benefits of constructing an entire system of rights that can satisfy all morally relevant actions and institutions in consistent and conflict-resolving ways. Unfortunately, many theorists also get caught up in the distinctions and fine tunings of contractualism, consequentialism, value neutrality, objectivity, relativism, pluralism, and other branches of epistemological, metaphysical, or ethical philosophy without advancing our understanding of the moral foundations of human rights much beyond the classic theories. In the discussion that follows, there is space to address only the more influential modern theories, and then only in bare bones outline. 216 HUMAN RIGHTS QUARTERLY Vol. 20 Underlying such foundational or core rights theory is the omnipresence of Immanuel Kant's compelling ethic. Kant's ethic maintains that persons typically have different desires and ends, so any principle derived from them can only be contingent. However, the moral law needs a categorical foundation, not a contingent one. The basis for moral law must be prior to all purposes and ends. The basis is the individual as a transcendental subject capable of an autonomous will. Rights then flow from the autonomy of the individual in choosing his or her ends, consistent with a similar freedom for all. In short, Kant's great imperative is that the central focus of morality is personhood, namely the capacity to take responsibility as a free and rational agent for one's system of ends. A natural corollary of this Kantian thesis is that the highest purpose of human life is to will autonomously. A person must always be treated as an end, and the highest purpose of the state is to promote conditions favoring the free and harmonious unfolding of individuality. Kant's theory is transcendental, a priori, and categorical (all amount to the same thing), and thus overrides all arbitrary distinctions of race, creed, and custom, and is universal in nature.31 In variant forms, modern human rights core theories seem to be settling for concepts of natural necessity. By necessity one means prescribing a minimum definition of what it means to be human in any morally tolerable form of society. Put another way, some modes of treatment of human beings are so fundamental to the existence of anything that one would be willing to call a society that it makes better sense to treat an acceptance of them as constitutive of man or woman as a social being, rather than as an artificial convention. This view does not entail verified propositions as science requires. Rather, it views human life as encompassing certain freedoms and sensibilities without which the designation "human" would not make sense. To use a linguistic metaphor, humanity has a grammatical form of which pertain basic human rights are a necessary part. This concept of what one views human beings to be is a profound one, even if it is deemed self-evident. To be sure, many of the new individualist theories possess a certain vindication aspect. They can be viewed as saying that if one adopts certain human rights as norms (e.g., freedom of thought, equality), one can produce 31. Even most positivist and utilitarian philosophers now seem to concede that unless the idea of Kantian's moral, nonlegal right is admitted, no account of justice as a distinct segment of morality can be given. Put simply, any society which uses the vocabulary of rights presupposes that some justification is required to interfere with a person's freedom. Without that minimal right of freedom, an important segment of our moral scheme (but not all of it) would have to be relinquished, and the various political rights and responsibilities about which we talk could not exist. See H.L.A. Hart, The Concept of Law (1994); see also Jules L. Coleman, Markets, Morals and the Law (1988) (exemplifying a modern positivist philosopher's view). 1998 Philosophic Foundations of Human Rights 217 a certain kind of society; and if one finds that kind of society desirable, one should adopt the norms and call them absolute principles. This reasoning is of course a type of tautology. Then again, tautologies can be significant if society is willing to accept them. The renaissance of qualified or modified natural rights or core theories has seminally influenced conventional international human rights norms. The Universal Declaration of Human Rights32 reflects that influence, as seen in the Declaration's opening statement: "Whereas 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."33 In a similar vein, Article 1 provides: "All human beings are bom free and equal in dignity. They are endowed with reason and conscience and should act toward one another in a spirit of brotherhood."34 The debt that "inherent dignity" and "inalienable rights" owe to natural law philosophy is obvious. The key human rights treaties also reflect quite directly the moral universalis! foundations discussed above. The philosophic justification and affirmance of the core principles of human rights as universal principles are highly significant and reassuring for the vitality of human rights in rules for the world of nations. Rights that preserve the integrity of the person flow logically from the fundamental freedom and autonomy of the person. So does the principle of nondiscrimination that must attach to any absolute concept of autonomy. However, affirming such basic or core principles is one thing; working out all the other elements of a complete system of rights such as international law seeks to provide is something else. What rights derive from those deemed core rights? How are they developed with generic consistency? By what theory does one test the legitimacy of an overall system? The next sections discuss some of the leading rights theories that have wrestled with the methodology and justification of an overall system of rights. B. Rights Based on Justice The monumental thesis of modern philosophy is John Rawls' A Theory of Justice?5 "Justice is the first virtue of social institutions," says Rawls.36 32. Universal Declaration of Human Rights, adopted 10 Dec. 1948, CA. Res. 217A (III), U.N. GAOR, 3rd Sess., (Resolutions, part 1), at 71, U.N. Doc. A/810 (1948), reprinted in 43 Am. J. Int'l L Sufp. 127 (1949). 33. Id. 34. Id. art. 1. 35. John Ravvls, Theory of Justice §§ 1-4, 9, 11-17, 20-30, 33-35, 39-40 (1971) (explaining the essence of Rawls' theory). 36. Id. § 1 at 3. 218 HUMAN RIGHTS QUARTERLY Vol. 20 Human rights, of course, are an end of justice; hence, the role of justice is crucial to understanding human rights. No theory of human rights for a domestic or international order in modern society can be advanced today without considering Rawls' thesis. Principles of justice, according to Rawls, provide a way of assigning rights and duties in the basic institutions of society. These principles define the appropriate distribution of the benefits and burdens of social cooperation. Rawls' thesis is that [ejach person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.... Therefore in a just society the liberties of equal citizenship are taken as settled; the rights secured by justice are not subject to political bargaining or to the calculus of social interests.37 But what are the rights of justice? Put another way, what are the principles of morality or the foundation of rules that would be agreed upon by all members of a society? To set the stage for ascertaining the principles of justice, Rawls imagines a group of men and women who have come together to form a social contract. Rawls conceives the contractors in an original position. The original position is one of equality of the contractor with respect to power and freedom. It is taken for granted that all know the general principles of human psychology, sociology, economics, social organization, and the theory of human institutions. However, the contractors are under a "veil of ignorance" as to the particular circumstances of their own society or of their individual race, sex, social position, wealth, talents, opinions, aspirations, and tastes.38 Therefore, they are prevented from making a self-interested decision that otherwise would corrupt the fairness of their judgment. In that hypothetical original position, ail of the contractors would consider only their own self-interest, which is to acquire a sufficiency of primary human goods, namely fundamental liberties, rights, and opportunities of income and wealth as social bases of self-esteem. Hence, in the original position, contractors would choose a basic structure for society fairly because they would be abstracted from knowing the detailed facts about their own condition in the real world. Rawls then tries to show that if these men and women were rational and acted only in their self-interest under a "veil of ignorance," they would choose principles that would be good for all of the members, not simply to the advantage of some. The answers given by those in the original position may then be taken as a blueprint, or as a pattern for the establishment of laws that are worthy of the universal assent of citizens everywhere. In other 37. Id. § 1 at 3-4. 38. Id. §2 at 12. 1998 Philosophie Foundations of Human Rights 219 words, their choices would be the basis for the ordering of a just society in any time or place. Rawls' system thus allows us to derive universal principles of justice (morality) acceptable to all rational human beings. What particular principles would be chosen? Rawls claims that the contractors, who are in the original position of choosing their own status and prospects, will choose two principles of justice. Rawls' First Principle is that "each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all."39 Rawls' principles of justice are arranged in a hierarchy. The first priority is that of liberty. "[LJiberty can be restricted only for the sake of liberty. There are two cases: (a) a less extensive liberty must strengthen the total system of liberty shared by all; (b) a less than equal liberty must be acceptable to those [citizens] with the lesser liberty."40 The First Principle focuses on the basic liberties. Rawls does not enumerate them precisely, but indicates, roughly speaking, that they include political liberty, freedom of speech and assembly, liberty of conscience and thought, freedom of the person (along with the right to hold personal property), and freedom from arbitrary arrest and seizure. The First Principle requires that these liberties be equal because citizens of a just society are to have the same basic rights. Rawls applies a value criteria in determining basic liberties. He believes that a liberty is more or less significant depending on whether it serves the full, informal, and effective exercise of the moral powers. Rawls' Second Principle deals with distributive justice. It holds that: "Social and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity."41 The general conception of justice behind these two principles reached in the original position, is one of "fairness."42 Rawls' Second Principle is a strongly egalitarian concept which holds that unless there is a distribution that makes both groups better off, an equal distribution is preferred. Thus, the higher expectations of those better situated are just only if they are part of a scheme that improves the expectations of the least advantaged. In Rawls' theory, the Difference 39. Id. § 46 at 302. 40. Id. (giving examples of restrictions on the scope of majority rule imposed by a bill of rights and restrictions on the freedom to speak imposed by a system of rules of order). 41. Id. Rawls' savings principle is a complex restraint on distribution to any one generation by allowing for accumulation of savings to improve the standard of life of later generations of the least advantaged. Id. § 44. 42. /