“Different people hold different concepts of human rights. This proposition might initially appear somewhat at odds with the commonly heard assertion that human rights are both universal and obvious (in the sense that they are derived from reason), which may suggest that human rights are unambiguous and uncontroversial.” M B Dembour, ‘ (Dembour, 2010)’ (2010) 32(1) Human Rights Quarterly 

Critically discuss.

Note: One of my duties in the various places where I teach is to show students how to write essays – something most young people are not nowadays taught to do. What I like to do in class is to choose a question at random, discuss possible approaches, and then dictate an answer one paragraph at a time. Some of these answers are very short. Some amount to small dissertations. In this latter case, the students take turns at looking on-line for the information we decide is needed. It they cannot find it, I show them how to change the structure of what has already been written, or to strike out in a new direction.

It is a “writing masterclass” approach that makes use of my own strengths, and is often a welcome alternative to formal teaching. It fills up a long morning session. Everyone learns something, and the more attentive will improve their final grades by at least one step.

Here is an example of the finished product. Do not take it as a statement of personal opinion. It is an answer produced for a specific question, and it bears in mind what a possibly unknown examiner will appreciate, and what can be written to incorporate the sources found in class. SIG

PS – If anyone wants to engage my services as a teacher of these skills, please click on the image to the left. Though they are my niche subjects, Greek and Latin are not my exclusive focus as a teacher. I do much else besides.

PPS – If you are a student, and you have come across this in a frantic last minute search, I advise you not to copy and paste and submit. You will be found out in three clicks of a mouse. Examiners were not born yesterday.

According to Jack Donnelly, “Human rights are literally the rights that one has simply because one is a human being.” (Donelly, 2013, p. 10) According to James Nickel, these rights embrace four distinct claims:

  • A secure claim to life;
  • A secure claim to live one’s life;
  • A secure  claim  against  severely  cruel  or  degrading  treatment;
  • A secure claim against severely unfair treatment. (Nickel, 1987)

What reasonable person could dispute these claims? What reasonable person does dispute them? Even if not always respected in practice, respect for human rights in principle is part of the global consensus. Almost every country has a declaration of human rights. So too almost every global body. Breaches of human rights are a serious matter of international law and politics. There were sanctions against South Africa in the days of apartheid. There are proposed sanctions against Israel for its alleged behaviour on the West Bank. Several former heads of state are in prison for breaches of human rights. One of these may soon be Bashir al-Assad of Sudan. Since the invasion of Serbia in 1999, there may be a case in international law for wars against states in breach of human rights. (Ignatieff, 2000, p. 297)

This being so, how can Dembour claim that “[d]ifferent people hold different concepts of human rights”? (Dembour, 2010, p. 2) You might as easily claim that different people hold different concepts about the speed of light or the melting point of lead. Human rights are one of the fundamental concepts of Western Civilisation. It can be argued that there is hardly any concept, outside the natural sciences, so obvious and unambiguous as human rights, or what used to be called the Rights of Man.

The Origins and Growth of Human Rights as a Concept

Let us begin with the Greeks. According to Aristotle (384-322 BC), there is an obvious and unambiguous idea of justice between citizens. Part of this is conventional, so far as it is a product of local circumstances. Part, however, is natural.

That is natural which has the same validity everywhere, and does not depend on our accepting or rejecting it. (Aristotle, 1893, p. 163)

From this, the Romans developed the idea of a universal natural law. They derived this from looking at their own customs and those of their subject peoples, and abstracting a single natural law, of which local law was merely a contingent expression. According to Cicero (106-43 BC),

[t]here is a true law, a right reason, conformable to nature, universal, unchangeable, eternal, whose commands urge us to duty, and whose prohibitions restrain us from evil…. This law cannot be contradicted by any other law, and is not liable either to derogation or abrogation….  [I]n all times and nations this universal law must for ever reign, eternal and imperishable. (Cicero, 1841, p. 270)

This says nothing in itself of human rights. Human rights, however, are implicit to the idea of natural law. This idea passed, with a Christian colouring, into the Middle Ages. It received mighty development in the Enlightenment that began in England as was carried throughout Europe.

One of the earliest statements of human rights as an element of natural law can be found in John Locke (1632-1704):

To understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man. (Locke, 1764, p. 195)

Locke is as much a systematiser as an original thinker in his development of natural law as a container of human rights. But he was a figure of immense practical importance. The American Declaration of Independence is soaked in natural law thought as focussed through John Locke:

[W]hen a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. (The Thirteen United States of America, 1776)

These rights were expressed in the language of English constitutional thought. But the French Declaration of the Rights of Man and the Citizen (1789) takes the final step. Human rights are possessed by all human beings just because they are human beings. (Hunt, 2007, p. 123) The United Nations’ Universal Declaration of Human Rights (1948) simply turns a concept recognised at many national levels into an international norm, to govern the national laws of its members. (United Nations, 1948)

And so human rights can be conceived as a sub-set of natural law. They can be conceived as negative rights, in the sense that they can be summarised as the right to be left alone by the authorities. Or they can be amplified into the four claims of Nickell. Or they can be further amplified into the jurisprudence of the British and American courts as this touches on human rights, or the jurisprudence of those other countries that stand in the British and American tradition. Indeed, speaking of human rights in general, Amartya Sen says:

…[A] great many acts of legislation and legal conventions (such as the European Convention for the Protection of Human Rights and Fundamental Freedoms) have been clearly inspired by a belief in some pre-existing rights of all human beings. (Sen, 2004, p. 318)

What could be more unambiguous and uncontroversial? So long as your natural rights to life and liberty are protected, you have the means to pursue happiness. Or my right to swing my fist ends where your face begins.

The Contributions of Marx and the NeoMarxists

A fuller answer to the question lies in the very development of the answer given above. As traditionally conceived, human rights are a Western and a Christian idea. This does not in itself invalidate the traditional idea of human rights. Isaac Newton was an English Christian. This fact says nothing for or against his theory of gravitation. William Shockley was a white supremacist. No one says the transistor is useless because of that. However, there is a difference between scientific and technical truths and ideas of justice. The former really are objective truths. Ideas of justice may be less uncontroversial.

Perhaps the central insight of Karl Marx (1818-1883) is that “The mode of production of material life conditions the social, political and intellectual life process in general.” (Marx, 1977, p. 389) In other words, the political and cultural shape of any society is determined by who owns the means of production. Every society has a particular economic base. Above this is the superstructure of morality and culture and laws. These are not universal truths, but contingencies. Change the base, and the superstructure changes.

This contribution was further developed by the heretical followers of Marx. These de-emphasised his economics, while building on his cultural insight. For them, a ruling class keeps control by owning not the means of production, but the culture. According to Antonio Gramsci (1891-1937), it formulates a “dominant” or “hegemonic” ideology, to legitimise its position. (Gramsci, 1971) According to Louis Althusser (1918-90), it imposes this on the rest of society through the “ideological state apparatus,” which is the political and legal administration, the schools and universities and churches, the media, the family, and the underlying assumptions of popular culture. (Althusser, 1969) This ideology becomes hegemonic, according to Michel Foucault (1926-84), when it soaks into the whole of society, setting its values, attitudes, beliefs and morality, supporting the established order in all interactions. (Foucault, 1974) It ceases to be controversial for most people, being taken instead as common sense, or even as the natural state of things.

Such may be the traditional idea of human rights. Human rights as negative rights embrace the four claims made by Nickel. They also support a bourgeois, capitalist order of society. When these bourgeois, capitalist societies dominated the world before 1914, though their colonial empires and monopoly of industrial development, the traditional idea of human rights could be hegemonic outside the remaining traditional societies. Since then, and particularly since 1945, bourgeois capitalism has been in retreat. This loss of cultural hegemony has cleared the way for other conceptions of human rights. We therefore find ourselves in a world where Dembour has a point. “Different people hold different concepts of human rights.” These may include the four claims made by Nickel, but are neither unambiguous nor uncontroversial.

Let us review some of these different concepts.

Socialist Human Rights

The Soviet Union and its satellites rejected the Western tradition of human rights, having their own idea of what they were.

The Bolsheviks proclaimed a Declaration of Rights of the Working and Exploited People in 1918, but it included not one political or legal right. Its aim was to “abolish all exploitation of man by man, to completely eliminate the division of society into classes, to mercilessly crush the resistance of the exploiters, [and] to establish a socialist organization of society.”  Lenin himself quoted Marx in arguing against any emphasis on individual rights. (Hunt, 2007, p. 283)

The Soviet system is no more. But its footprint remains in the main declarations of human rights. Take Article 24 of the Universal Declaration of Human Rights:

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. (United Nations, 2015)

These good things are not denied by any explicit act of state, but by other individuals who benefit from bourgeois capitalism. Giving them to people requires an interference with negative rights. The traditional Western idea of human rights contains an emphasis on property rights that is absent from socialist formulations.

Islamic Human Rights

Michael Ignatieff broadly leans to the traditional idea of human rights. He is alarmed by what he terms “The Challenge of Islam.” This was evident at the drafting of the drafting of the Universal Declaration of Human Rights in the 1940s. The Saudi delegate was unhappy:

The  authors  of  the  draft  declaration  had,  for  the  most  part,  taken into consideration only the standards recognized by western civilization and had ignored more ancient civilizations which were past the experimental stage, and the institutions of which, for example, marriage, had proved their wisdom through the centuries. It was not for the Committee to proclaim the superiority of one civilization over all  other  or  to  establish  uniform  standards  for  all  countries  of  the world. (Cited in Ignatieff, 2000, p. 324)

The Saudis refused to sign this Declaration. (Posner, 2014) Since then, Islam has become a more confident force in the world. Its own declarations of human rights are simply not compatible with the traditional Western idea. Take Article 22 (a) of the Cairo Declaration on Human Rights in Islam, signed in 1990:

Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari’ah. (World Conference on Human Rights, 1990)

Compare this with Article I of the American Bill of Rights:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. (Bill of Rights of the United States of America, 1791)

Islam honours the four claims of Nickel, but does so in divergent ways. There is no such thing as the Islamic view of human rights. There are simply Muslims who speak about human rights.

There are some who take a neo-Gramscian line of reasoning that is deeply hostile to the Western idea of human rights. Edward Said, for example, sees the West as casting an ‘otherising’ gaze on the East. He sees the West as wholly imperialist, arguing for an equal appreciation of non-Western traditions, even if their ideas of rights are more collectivist than individualist. (Said, 1978, p. 132) Sædén agrees:

One of the most frequently asked questions when it comes to the UN declaration of Human Rights is, how universal are they really, are they compatible with the whole world or are they simply a manifestation of Liberal, Western, Christian ideas. (Sædén, 2010)

There are, on the other hand, Islamic scholars like Hasan al-Turabi, who sees Western human rights as broadly compatible with traditionalist Islam. (Woodward, 2013, p. 217) Or there are Muslims who are also radical libertarians, and who claim that Islam is fully accepting of classical liberalism. (Minaret of Freedom, 2019) According to Imad-ad-Dean Ahmad, justifying freedom in the Lockean sense:

The Prophet himself is reputed to have said that diversity in his community is a blessing. (Ahmad, 2003, p. 127)

How these differing points of view can be reconciled. It is enough to say that Islamic civilisation is an important part of humanity, and that there are very different views of the nature and application of human rights theory among Muslims. Nothing “unambiguous and uncontroversial” here.

Group Rights

Traditional human rights theory is based on the premise of formal equality. Rights are held by individuals as individuals. Every individual has equal rights, and therefore equal obligations. There are obvious derogations in the case of children and lunatics. There are more limited derogations made for resident aliens. There was an argument in the past whether women should be regarded as citizens. But every adult citizen is to be regarded as enjoying equal rights and equal obligations. More recent arguments begin from the claim that citizens are not interchangeable holders of rights, but that they are also members of specific groups, and that these groups may be entitled to special treatment by virtue of this membership. This requires unequal treatment. It may mean fewer human rights as traditionally conceived. It may mean privileges as traditionally conceived.

For example, the modern British State believes not only that homosexuals should be free to act as they please with other consenting adults, but that their lifestyles should be taught in school as an option entitled to equal respect. This policy is hotly challenged by parents whose religious views are hostile to homosexuality. At the moment, for example, Muslim parents in Birmingham have succeeded in stopping their children from being taught the equal validity of same-sex relationships. Shabana Mahmood, one of the Members of Parliament for the city, supports this protest, saying that

the government should ensure the rights of minorities were protected, but that included the rights of people with orthodox religious views, including some Jews and Christians as well as some Muslims. (Parveen, 2019)

Now, broadly construed, this protection of minority rights could include restrictions on individual freedom. If Muslim parents are to be allowed to shelter their children from what they call homosexual propaganda, why should they not also claim the right to stop their children from coming out as homosexuals? Why not claim the right to punish apostates from Islam, or the right to censor derogatory comments on Islam?

Struggling with these claims to group rights, Will Kymlicka, a Canadian philosopher, tries to reconcile them with the traditional idea of human rights as applying only to individuals. His solution is to allow certain groups to have a wide autonomy in how they interact with the wider society. They should be allowed to use their own languages in schools and the local administration. They should be allowed to have their own curricula taught in local schools. They should be exempted from certain restrictions accepted in wider society because they are in conflict with their own cultural values. This has long been the case in England, where Sikhs are exempted from wearing motorbike helmets, and are allowed to carry certain offensive weapons in public. They may also be exempted from Sunday trading laws if they are not Christians. These are “polyethnic rights.” They seek to ensure that they can participate in the dominant culture on fair terms, enabling ethnic groups and religiousminorities “to express their cultural particularity and pride.” (Kymlicka, 1995, p. 108)

But these polyethnic rights should never be allowed to shade into oppressions of group members. They are “external restrictions” that allow groups a reasonable autonomy. They should be permitted only

“in so far as they are consistent with respect for the freedom or autonomy of individuals.” (Kymlicka, 1995, p. 75)

“Internal restrictions” are not permissible.

The problem here is that Kymlicka’s careful balancing of individual and group rights is very sophisticated. The dynamics of group action is that any derogation from equality before the law is likely to be used a precedent for further derogations until we end with something like the milet system of the Ottoman Empire, where every group was allowed to live under its own laws, which were not equally liberal.

Conflicts of Human Rights

Like Kymlicka, Jack Donnelly worries that the modern idea of human rights is filled with inner contradictions. Unlike Kymlicka, his worry is of a conflict not between group and individual rights, but between individual rights themselves. He hopes “that they may be made interdependent,” But does not believe that they are at present. (Donelly, 2013, p. 217) indeed, they are not. The law reports are filled with cases each party to which is convinced that his or her human rights are being violated by the other.

In May 2014, Gareth Lee, a gay man in Northern Ireland, ordered a cake bearing the words “Support Gay Marriage.” The baker, a Christian, refused to fill the order. Lee sued, claiming he had suffered discrimination

But let us turn to a present controversy. On the 8th or 9th May 2014, Gareth Lee, a gay man living in Northern Ireland, placed an order for a cake that was to be decorated with the words ‘Support Gay Marriage.’ On the 12th May 2014, he was informed that his order was rejected. The baker said he was a devout Christian, and that decorating the cake in this way was against his conscience. Mr Lee then sued, claiming he been discriminated against contrary to the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, or the Fair Employment and Treatment Order 1998, or both. The bakers’ reply was that complying would be a breach of their right to freedom of religion. Lee won his case. (Lee v Ashers Baking Co Ltd, [2015]) But it is unimportant who won. There was a conflict of two sets of human rights.

Again there is the 2017 case involving a transgendered Jewish father. (J v B and The Children (Ultra-Orthodox Judaism: Transgender), [2017]) The father claimed the right to see his children. The mother claimed the right of her children to be free from being shunned by their devout neighbours. The reporter of the case adds this comment:

This case shows an insightful analysis where the judge balanced the rights of a transgender person and the importance of contact in this context, as against the needs of the children to be accepted by the community in which they were born and which was their chosen way of life (chosen by both mother and father).

A Broken Hegemony

We see, then, that Dembour is right. “Different people hold different concepts of human rights.” These routinely lead to conflicts in the courts where both parties allege that their human rights are being breached. Because someone has to win each case, there is always a losing party, and a losing set of claimed human rights. If never as unambiguous and uncontroversial as often claimed, the idea of human rights that runs through John Locke never produced conflicts of this kind. If the authorities shut down a newspaper, everyone agreed that rights had been violated. The authorities could respond that they were acting in the public interest, but never tried to claim their human rights had been breached by the newspaper.

Expressed in Gramscian terms, there is a simple explanation for the present confusion. The bourgeois capitalist hegemony has broken down. Still apparently solid until about 1990, the traditional discourse of human rights has fallen. There is as yet no new hegemony. There is instead a conflict of different and perhaps irreconcilable ideas of human rights. Whether any one of these is true, and ought to become in turn hegemonic, is unimportant. What is important is that we live in an age of transition. Old certainties have passed away, and no new ones have taken their place. No one directly denies the four moral claims of Nickell. But there is little agreement on what they mean in their details.

Bibliography

Legislation and Declarations

Cairo Declaration on Human Rights in Islam 1990 (World Conference on Human Rights)

Declaration of Independence 1776 (United States of America)

Universal Declaration of Human Rights 1948 (United Nations)

Cases

J v B and The Children (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4

Lee v Ashers Baking Co Ltd [2015] NICty 2 (19 May 2015)

General

Ahmad I-a-D, ‘On the US Constitution from the Perspective of the Qur’an and the Medina Covenant’ (2003) 20 American Journal of Islamic Social Sciences 105

Althusser L, For Marx (Allen Lane 1969)

Aristotle, Nicomachean Ethics (Kegan Paul Trench Truebner & Co 1893)

Bill of Rights of the United States of America 1791 sl:sn

Cicero MT, The Political Works of Marcus Tullius Cicero: Comprising his Treatise on the Commonwealth; and his Treatise on the Laws (Longman 1841)

Dembour M-B, ‘What are Human Rights? Four Schools of Thought’ (2010) 32 Human Rights Quarterly 1

Donelly J, Univeral Human Rights in Theory and Practice: (Cornell University Press 2013)

Foucault M, The Order of Things: An Archaeology of the Human Sciences (Tavistock 1974)

Gramsci A, Selections from the Prison Notebooks (Lawrence and Wishart 1971)

Hunt L, Inventing Human Rights: A History (Norton 200)

Ignatieff M, Human Rights and Politics: Human Rights as Idolatry (Princeton University Press 2000)

Kymlicka W, Multicultural Citizenship: A Liberal Theory of Minority Rights (Clarendon Press 1995)

Locke J, Two Treatises of Government (first published 1690, OUP 1957)

Marx K, ‘Preface to A Critique of Political Economy’ in D McLellan (ed) Karl Marx: Selected Writings (OUP 1977)

Minaret of Freedom, ‘Minaret of Freedom Institute: Calling the Faithful to Freedom’ (2019) <wwwminaretorg/> accessed 29 April 2019

Nickel J, Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights (University of California Press 1987)

Parveen N, ‘Birmingham school stops LGBT lessons after parents protest’ The Guardian (04 March 2019)

Posner E, ‘The Case Against Human Rights’ The Guardian (04 December 2014)

Sædén L, Alternative Islamic Human Rights (Lunds Universitet 2010)

Said EW, Orientalism (Routledge 1978)

Sen A, ‘Elements of a Theory of Human Rights’ (2004) 32 Philosophy and Public Affairs 4

Woodward P, ‘Hasan Al-Turabi’ in JL Esposito and E E Shahin (eds) The Oxford Handbook of Islam and Politics (Oxford Handbooks 2013)

 

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