Michael Freeman - Human Rights

The concept of human rights raises further difficulties because it stretches well beyond cases of extreme cruelty and injustice. Article 1 of the UDHR, for example, states that all human beings are equal in rights. Article 18 says that everyone has the right to freedom of religion. How should we define the right to freedom of religion of those whose religion denies that all human beings are equal in rights? How can we make sense of human rights if the implementation of some human rights requires the violation of others? Here the problem of implementing human-rights ideals derives, not from lack of political will or conflicts of political interests, but from the fact that human rights may not be ‘compossible’, that is, the implementation of one human right may require the violation of another, or the protection of a human right of one person may require the violation of the same human right of another. If a religious group, for example, forbids its members, on the basis of its religious beliefs, to change their religion, then the religious freedom of the group will conflict with that of any members who wish to change their religion. If we support human rights that are not compossible, our thinking must surely be confused.

The problem of compossibility has been aggravated by what has been called ‘rights inflation’, that is, the extension of the concept of human rights to an ill-defined number of causes. There are controversial human rights even in the UDHR, such as the right to ‘periodic holidays with pay’, which some say is not ‘universal’ but limited to certain industrial societies. Courts may decide rather precisely the legal rights of those who appear before them. Human rights are rather vaguely worded, and their meaning is not always settled in courts of law. The determination of the meaning of human rights is a continuing social process that involves not only legal professionals (such as judges, UN experts and academic lawyers) but also various ‘stakeholders’ (such as governments, inter-governmental organizations, non-governmental organizations (NGOs), non-legal academics and citizens). If the concept of human rights is to be useful, we must distinguish human rights from the legal rights of particular societies, and from other desirable social objectives.

What are ‘rights’, and how do ‘human rights’ differ from other kinds of rights? The concept of ‘rights’ is closely connected to that of ‘right’. Something is ‘right’ if it conforms with a standard of rightness. All societies have such standards, but it is often said that many cultures have no conception of people ‘having rights’. The idea of everyone having ‘human rights’ is said to be especially alien to most cultures.

The idea that we ‘have rights’ is confusing because it implies that rights are ‘things’ that we could have as we have arms and legs. Rights are, however, not mysterious things, but justified claims or entitlements that derive from moral and/or legal rules. These moral and legal rules can be found in numerous treaties and laws, as well as in values shared by many, though not by all. The existence of human rights is grounded in the belief that human beings ought to be treated with a certain kind of respect. The problem of ‘believing in’ human rights is not whether or not they ‘exist’, but whether there are sufficiently good reasons for supporting them and seeking to implement them. This requires a justificatory philosophical theory of human rights (see chapter four).

For many years after the adoption of human rights by the UN they were treated mainly by lawyers. In this period, social scientists neglected the concept, in part because, influenced by the social prestige of the natural sciences, they were wary of legal or moral ideas. However, the rise of the non-governmental human-rights movement and the increasing importance of the concept in national and international politics have brought about an ever-increasing literature in various social sciences. The explanation of variations in respect for human rights in different societies has become an object of extensive social-scientific investigation. It is sometimes said that gross human-rights violations – such as genocide – are ‘irrational’ and beyond scientific explanation. There is, however, a body of knowledge about state behaviour, ethnic diversity, repression, rebellion and social conflict that may explain a great deal about such actions. There is much controversy about theories and methodology in the social sciences, but there is no reason why behaviour that violates or respects human rights should be less explicable than other complex social phenomena. Those who assert that the worst human-rights violations are inexplicable conflate extreme immorality with scientific unintelligibility.

For some human-rights academics and activists, the discourse of human rights is primarily legal and technical, and lawyers properly play a leading role in the field because they are the technical experts. The legal approach is attractive because human-rights law appears to provide objective standards that protect the concept of human rights from moral and political controversy. This appearance is, however, illusory, for the meaning and application of human-rights standards are legally and politically very controversial. International human-rights law is made, interpreted and implemented by governments that act from political motives. NGOs, which have come to play an increasingly important role in the making of human-rights law, monitoring its implementation and campaigning for improved human-rights performance by governments, are political actors, even if they appeal to legal standards. Important human-rights advances and setbacks – such as the replacement of dictatorships by democracies in many countries at the end of the twentieth century, or the rise of authoritarian populism in recent years – have been primarily political events.

Just as social scientists, with their aspiration to be scientific, neglected human rights until recently, so too the academic discipline of international relations showed little interest in the idea, since the discipline was concerned with states and their relations with each other, to which human rights were considered to be at most marginal. An influential theory was that of Realism, which has been primarily concerned with the interests and power of states rather than with such ethical issues as those of human rights. But as human rights played an increasing role in real international relations, so it entered the academic discipline. Some international relations scholars have challenged the Realist school by emphasizing the role of ideas in general, and of human-rights ideas in particular, in international politics, and there are several alternative theoretical approaches in the field (Jackson, Sørensen and Møller 2018). Realism, however, still presents a strong challenge to human rights (Donnelly and Whelan 2020: 40–2).

There are two principal alternatives to the legal conception of human rights. The first conceives of human rights as fundamental moral rights and then proceeds to consider that they may need legal and/or political protection. The second holds that human rights are political constructions and do not derive from any particular moral philosophy. International human-rights law is concerned primarily with the obligations of governments and the rights of citizens. Political theory is the discipline that seeks to explain and evaluate the relations between governments and citizens. Political science is the discipline that describes and explains the variations in the degree to which governments respect their citizens’ rights. Political scientists have studied human-rights issues with the use of related concepts such as ‘dictatorship’, ‘totalitarianism’, ‘authoritarianism’, ‘repression’, ‘state terror’ and ‘genocide’. There is also much work in political science on democracy that is relevant to understanding the current state of human rights. For some time the desire of political scientists to be ‘scientific’ led them to neglect a concept that appeared to be at worst moralistic, and at best legalistic. Much recent work has rectified this neglect.