Introduction to the Philosophy of Human Rights
What are the foundations of human rights and what should be considered as human rights? These are two central questions that have caused fierce debates since the Enlightenment period in Europe began.
For Hobbes and Kant, the foundation of human rights is social contract. For Hobbes this social contract is a natural consequence of the natural law. He began his analysis by describing humans as rational and self-interested. All humans are motivated by the desire to ‘obtain satisfaction and avoid harm’. This desire is coupled with the fact that ‘nature hath made men so equal, in the faculties of the body and mind’ which makes it problematic when two people want to obtain the same thing as they cannot both enjoy. In the pre-political ‘state of nature’, everyone fights over limited resources and given that there is no central authority to mediate between these conflicting interests, only the law of nature applies.The law of nature is the rule for every human’s survival. One should do what keeps him alive and should avoid taking actions that can compromise his survival. The law of nature, hence, endows humans with absolute liberties although these can be taken away arbitrarily at any moment by others.
Consequentially, all individuals will long for peace. To achieve this, individuals would agree to surrender some of their natural rights in a hope that others would do the same and, eventually, they will receive goods and other forms of rights in exchange.This is the social contract. This contract will be enshrined in the covenants enforced by a central authority which is trusted with the mandate to punish those who break these laws. For Hobbes, this central authority has to be absolute sovereign or ‘mortal God’ in order for peace and order to be maintained.
Hobbes, indeed, gave us a useful account of how civil rights emerged but he did not specify what kind of rights should be considered human rights and, thus, guaranteed by state to its subjects. Kant’s Categorical Imperative, in this context, can be useful. Kant shares his view with Hobbes on humans as rational creatures although he would not agree with Hobbes on simplistically depicting human beings as selfish, power-hungry animals that lack the essential attributes of a higher moral being. For Kant, each person has some inherent characteristics that allow him or her to be ‘humane’. These include ‘intrinsic freedom, equality, autonomy, and dignity’, without which humanity will lose its meaning. The Kantian social contract is predicated on the preservation of this humanity complex.
Through this social contract, the state is expected to uphold the rights of every individual based on liberty, equality, and independence. In turn, every individual also has the obligation to respect the rights of everyone else and the rule of law within that state. This sense of obligation determines whether an action is right or not. An action is right if it is done out of goodwill because it does not involve a desire nor a consequence of that action but is purely done on a basis of what we ought to and can do as a moral being. This is what Kant calls the ‘Categorical Imperative’. It consists of, at least, two principles. The first principle is ‘act only on that maxim which you can at the same time will that it should be a universal law’. The second one is to treat humanity as the end in itself and not merely as means of something else.
Let us take freedom of speech for example. If freedom of speech is made as a universal principle, would every person, including, us want it? Can it be implemented universally? To use the second principle, does freedom of speech cause humanity to be treated as a means of something else or does it contribute to humanity as an end goal? We can confidently say that freedom of speech is desired by every rational person as anyone who is rational has free wills and opinions. To be able to express these wills and opinions they need freedom of speech. We can also say that freedom of speech contributes directly to the idea of humanity since freedom of speech corresponds to the concept of human beings as having ‘intrinsic freedom, equality, autonomy, and dignity’. Therefore, based on Kant’s Categorical Imperative, freedom of speech is right and every human should be afforded this human right. For Kant, this is the formula that we can use to determine what should be considered as human rights.
Jeremy Bentham, however, would disagree with Kant on grounding rights on such a moral framework. Similar to Kant and Hobbes, Bentham believes that human beings are rational. Echoing Hobbes’ idea, they seek to avoid pain and maximize pleasure. Right actions maximize pleasure and minimise pain whilst wrong actions reduce pleasure and cause pain. To him the role of state is to fulfill and promote the happiness or pleasure of as many individuals as possible.
Therefore, for Bentham, what constitute human rights are those that benefit the majority of the people. If the majority of the people think freedom of speech is detrimental, Bentham would argue that freedom of speech should not be seen as a human right. Bentham would also disagree with Kant and Hobbes regarding social contract as the basis for human rights. He disagrees with the idea of ‘pre-political state of nature’, which depicts each individual human to be born free. For him, none of us is born free as we are all immediately part of a social context once we are born. He uses the example of a helpless child who is subjected to his parents and someone who is born as a slave. The state of nature for Bentham is only imaginary and, therefore, natural law and natural rights are only ‘nonsense upon stilts’. For Bentham, the only valid basis for justice and rights are positive laws founded upon rational utilitarian spirit, not some airy fairy moral philosophy. Since only government can make laws, therefore, he believes that rights only exist after government. Believing that rights exist before government can be dangerous as that would mean government’s laws can be ‘wrong’ or ‘unjust’ and people can refuse to abide by these laws.
In critically evaluating all those claims above, below is my analysis on each of them.
Hobbes’ account is logically coherent and powerful. However, it can be seen as too pessimistic. His characterization of human nature as selfish to the extent of ‘predatory’ seems to ignore other important characteristics of human beings such as conscience and compassion, which define us as ‘human’ instead of merely political animals. If, indeed, we are rational but also, intuitively, compassionate and conscientious, it begs a question whether the perpetual state of war would still occur in the state of nature and whether such an absolutist form of government is needed to ensure our peace. Such a conceptualization of government can also be used to justify an authoritarian form of government which can ensure ‘peace’ only at the cost of continuous repression of its own people. Therefore, Hobbesian vision of government does not sound too inspiring when we are talking about the preservation of human rights.
Kantian concept of right is an interesting but contradictory one. Based on Kantian ethics, some would argue that the right to life is an absolute human right which should not be compromised since everyone, universally, would want the right to life and life is the most fundamental basis for humanity. Without life, all of other rights become meaningless and without guaranteeing the right to life to everyone, humanity can descend into chaos as killing can be permissible. What about sanctioned killing such as death penalty then? It is arguable that death penalty is appropriate especially for those who have committed a genocide or terror acts and killed hundreds of people. In this case, some would argue that they have stripped away their own humanity through their heinous actions so that they deserve the capital punishment. Capital punishment can also be seen as a way to provide justice to victims and a deterrent to other would-be criminals thus guaranteeing the right to life of other people, who otherwise would have become victims of other genocides or terror acts. Hence, consistent with Kantian logics, death penalty can help us to preserve our humanity and, hence, justifiable. Nonetheless, some will insist these criminals’ right to life is inviolable. Trying to ‘preserve’ humanity by inflicting violent, degrading and inhumane punishment is inconsistent with the spirit of humanism that Kantian ethics suggests. It now appears that the moral framework suggested by Kant is also fraught with perplexing inconsistencies.
Bentham’s argument is a useful reminder for us to ground human rights on laws to produce better accountability and enforcement. However, I found his strict attachment to legal positivism troubling. State is not an autonomous, higher moral apparatus divorced from the people. State is made up of the people in society, not higher spiritual beings, and those people who make laws often have their own interests and views on how their society should be organized and how it should work. Therefore, not all laws created are necessarily compatible with what we call as the inherent dignity of human persons and justice. In fact, some laws lead to blatant violations of human rights, e.g: laws that support the slavery of the black people in the US. Bentham’s account would justify slavery of the black people in the US as long as it benefit the majority of Americans. However, we know that subjecting people to racial discrimination and slavery is wrong. Firstly, no one can choose their skin color. Racism is a form of bigotry that ignores this simple fact. Slavery takes away the inherent dignity of those people who are treated as ‘lower’ and reduces the slave owners to egotistical immoral beings whose happiness depends on other people’s oppression. Bentham’s utilitarian legal positivism can, precisely, legalizes and encourages oppression and human wrongs by the majority.
Hayden, P. (ed.), the Philosophy of Human Rights. Paragon House, St. Paul, 2001.