Human Rights as Ethical Demands - Essay Example

ELEMENTS OF A THEORY OF HUMAN RIGHTS due: Contents Contents 2 Introduction 3 Human Rights asEthical Demands 4 Human Rights, Freedom and Social Influence 6 Duties, Reasonable Consideration and Imperfect Obligations 8 Recognition, Agitation and Legislation 10 Economic and Social Rights 11 The Reach of Public Reasoning 13 Conclusion 14 Bibliography 15 Bibliography……………………………………………………………………………….. ……Error: Reference source not found Introduction In today’s society, human rights, in their varied forms, have been a topic of hot debate in the political and legislation arenas. The ideology that every human being anywhere in the world has got certain fundamental rights that should not be violated is indeed remarkable, thus its extended use. Human rights have been used successfully as a shield against certain social ills including torturing suspects, arbitrary incarceration and even social movements such as demand for eliminating hunger in poverty-stricken countries.1 However, even with a positive association with humanity, human rights have received negative feedback from scholars and philosophers. They insist that the idea of all people possessing certain rights by virtue of their humanity, even in the absence of legislation, is baseless and only loose talk.2 The ambiguity regarding the credibility of human rights dates back to the 18th century shortly after US Declaration of Independence in 1776, and thirteen years ahead, the French declaration of ‘the rights of man’. The US Declaration stated that every man is ‘endowed by their Creator with certain inalienable rights’ while the French Declaration asserted ‘men are born and remain free and equal in rights’. Not long afterwards, Jeremy Bentham, in his writings between 1791 and 1792,3 differed with the concept of human rights and called for its dismissal. Bentham claimed that the idea of human rights was borrowed from the Americans and was not practical. Even today, there is still widespread disagreement on issues relating to human rights. Most critics maintain that human rights lack coherence, cogency and legitimacy while some still point out grey areas such as social and economic rights.4 Amartya Sen5 proposes several guidelines for the elements of a human rights theory that adequately address the issue of legitimacy of human rights. I will consider these six guidelines as conclusions to arguments which he bases on one or more premises explained under each subheading. The paper will analyse each of these conclusions and their supporting premises and critically assess their legitimacy and any alternative suggestions. Human Rights as Ethical Demands Sen claims that human rights are primarily ethical demands rather than legal commands.6 He makes this conclusion based on two premises. First, even though human rights have often resulted in legislation, it is considered a further fact, as opposed to a characteristic of human rights. Second, Sen states that human rights are agreements on certain ethical affirmations and the theories do not need to provide complete procedures for evaluative assessment.7 Being agreements between two or more parties, he states that recognition of human rights, therefore, comes with associated claims and obligations for all parties involved. However, he notes that serious debates can stem from such declarations and may be very complicated, involving interpersonal disagreements based on an individual’s reasoning. Such debates are common in most ethical issues and Sen claims that they usually improve rather than weaken the theory. Jeremy Waldron has also argued that the presence of debates is a good sign that people take rights seriously.8 Even though Sen argues that human rights are primarily ethical demands and not laws, the connection between the two is indisputable. Bentham viewed human rights as results of legislation thus objected the notion of people having certain inherent rights by default. Hart, on the other hand, viewed natural rights as inspirations for forming particular laws.9 Although he does not mention human rights in his article, one can see that the same concept is applied in the case of human rights.10 For instance, the inclusion of inalienable rights in the US Declaration of Independence subsequently reflected in the Bill of Rights, a trend that has been observed in many countries. Providing a motivation in the law making process is one way in which the ethical importance of human rights has been constructively used.11 As it is imperative to acknowledge the link between human rights and legislation, Sen claims that it does not mean the relevance of human rights is to be used for making laws. Since human rights are to be considered moral claims, it would be beneficial to view them in other ways that help in their promotion. Sen proposes that establishments such as the Human rights Watch and Amnesty International should contribute to improving the reach of these rights in ways other than legislation, although sometimes legislation is one of the most effective ways. Sen provides a substantial argument for human rights as ethical rather than legislative demands. However, his first premise downplays the importance of legislation in making human rights more effective thus weakens his argument significantly. In the lack of legislation, it is not easy to accuse one of violation of any of these rights. To increase their effectiveness, human rights should, therefore, be considered as both ethical and legal demands, with legislation being the most preferred method of implementation. Sen’s second premise is also faulty to some extent. Sen claims that human rights are essentially agreements but he does not say between who. Since the same rights are not to be considered legal demands, then it means a person can choose whether to recognize certain rights or not; and if he/she does not, then they cannot be held responsible for violating another person’s rights. Sen’s conclusion, therefore, needs to address this ambiguity otherwise it may not be considered as valid. Human Rights, Freedom and Social Influence Human rights also have an active connection with freedom. Sen states that human rights are ethical affirmations requiring that attention to be given to the significance of the various forms of freedom of the people. It is however worth noting that while human rights are claims, freedoms are mainly descriptive characteristics of the ideal conditions of a person.12 Bentham based his argument on a comparison between utilities and human rights, a concept that Sen claims has several shortcomings. For instance, a utilitarian approach can be marred by distortions caused by failing to recognize the chronically disadvantaged in the society who learn to appreciate the little they get. Such individuals lower their expectations to ‘realistic’ levels and thus appear to be satisfied when in fact they are deprived.13 According to Sen, having freedom, and not utility, as the principal motivation behind the formulation of human rights provides a more comprehensive perspective of human rights. He makes this conclusion based on the premise that it helps us to not only celebrate our rights and privileges, but also take interest in the freedom of others, not simply in their desires and pleasures.14 However, freedoms can vary in terms of importance and how they are motivated by others, thus should be considered based on these two measures. For instance, Sen explains that it would be plausible to argue for freedom to receive medical care as a human right owing to its importance and ease of attainment. Freedom of tranquillity, on the contrary, although necessary for the individual, would not make a good subject matter for a human right as it is hardly influenced by the society hence difficult to guarantee. Sen acknowledges that this is one of the reasons why there will always be debates in the discipline of human rights. Threshold conditions and their use are familiar topics for debates, particularly on whether certain cases meet the threshold or not. The analysis of threshold conditions, regarding both the importance and tendency of freedoms to be influenced by the society, plays a significant role in the discipline of human rights. Such debates also form part of the discipline and are the primary cause of the long discussions that go on about human rights. However, the ethical aspects of freedoms can easily result in claims on others, and this can make the whole process of distinguishing human rights complicated.15 Sen’s argument in this case is not convincing. He acknowledges the shortcomings of his conclusion yet fails to provide alternatives to the counterarguments. Other than the fact that seeing other people’s freedoms as important may increase social cohesion, (which is also subject to debate) Sen does not provide any other supporting evidence to his claim. He also states that the conditions for the freedom to be seen as a human should be its tendency to be influenced by the society and its importance. However, not all human rights are made based on these two conditions (including his example of the right to tranquillity which he claims is hard to guarantee; there are laws against noise pollution in residential areas). Furthermore, the level of importance of freedom is very personal meaning this criterion inevitably leads to endless debates on which rights to adopt and which to dismiss. The connection between human rights, freedom and social influence has to be more than what Sen describes since his explanation leaves more questions than provides solutions. Duties, Reasonable Consideration and Imperfect Obligations Citing the importance of freedoms in defining human rights, Sen claims that there arises the question of how people can aid each other in promoting or defending their freedoms. Violation or non-recognition of freedoms of a person is considered wrong and even though others may not be directly involved in the breach, they should still have a reason to consider how they can help.16 First, it would seem like a major leap to make such actions a duty for everyone and one may argue that acceptance of such duty binds a person in several ways. However, Sen asserts that making it an absolute obligation to undertake such an action is the issue that needs to be tackled. Making a reasonable consideration before acting is another issue altogether. Avoiding situations that require practical reasoning provide an easy way out. It should however not be grounds for denying that each one has a duty to give reasonable consideration to what they can sensibly do to protect the rights and the underlying freedoms of others. A person also needs to assess the significance of the freedoms in question before taking action. It is important to judge the possibility of making a significant change in the case, either acting solely or as a group. These and many other considerations are impossible to make and implement in all situations involving the violation of rights of other people due to several factors such as time and others case-dependent. Sen agrees that a reasonable consideration will, therefore, not automatically lead to an obligation to take action, but rather a willingness to do so when it seems appropriate and relevant. Recognition of obligations should not, thus, be translated into demanding commands.17 The loose specification of obligations should also not be confused with the complete lack of obligations. Such obligations belong to the category of duties commonly referred to as imperfect obligations.18 These are ethical considerations that go beyond the stipulated duties and require that specific persons have to perform particular acts.19 Persons capable of providing reasonable help to a person whose rights and freedoms are being violated are required to consider seriously offering support. Perfect obligations, most commonly stipulated in legal rights have been contrasted with the ambiguity common to ethical claims of human rights. However, given the variability of human rights violations, it cannot be easy to accommodate all of these violations in written laws. Sen states that the recognition of third-party obligations of others is thus necessary. Also, debates and ambiguity cannot be avoided in such a situation and should, therefore, be considered as part of an adequate human rights theory. As far as protecting and promoting human rights is concerned, Sen claims that it is impossible to accommodate all violations through legislation. He supports this conclusion with two premises. First, he says the duty to protect someone’s rights is not mandatory but recommended. This premise allows too much ambiguity that renders the conclusion very weak. Lack of criteria to determine the threshold for ‘reasonable consideration’ means that the individual is the only one who can determine if they can help out. Therefore, they are not accountable for failing to help a person whose rights are being violated. Second, Sen also claims that debates and ambiguity are part of an adequate human rights theory. If that is the current condition, then what is the intent of coming up with a theory if it does not provide clear solutions to a human rights problem? Recognition, Agitation and Legislation Much attention has been given to legislation and institutionalization of human rights, and understanding of human rights is commonly associated with a legislative outlook. However, according to Sen’s argument, though the law plays a significant role in public action, there are other effective means through which rights can be advanced. Recognition of human rights involves the acknowledgement, but not necessarily any form of legalization of a group of claims that can be viewed as fundamental human rights.20 A perfect example is the Universal Declaration of Human Rights of 1948. The approach is inspired by the notion that the ethical force of human rights is stronger in practice through assigning it an acknowledged status and giving it social recognition, in the absence of enforcement. Active agitation is another effective means of advancing human rights. It is possible to advocate compliance with certain fundamental claims considered human rights, as well as monitoring of violations of these rights and efforts to generate useful societal pressure. Global NGOs have been on the forefront in advocating human rights through encouraging public participation and criticizing and publicizing violations. Most of these organizations have achieved great success even in the absence of legal backing, for instance in the case of Pakistan where the Pakistan Human Rights Commission is an NGO. Legislation is mostly considered the ideal domain of advancement of human rights. In fact, many laws have been inspired by human rights. However, Sen claims that it should not be assumed that legislation is the ideal way of advancing an important human right. Certain moral ideals meet the threshold conditions of importance and social influence but still cannot be made into laws. For example, since it is the moral right of a wife to be consulted by the husband in family decisions, the necessary change would have to be sought through other effective means. 21 Sen, therefore, maintains that the effectiveness of human rights does not lie in viewing them as proposals for legislation. Sen makes the conclusion that legislation is not the best way of advancing human rights, and again, gives less significance to legislation in the implementation of human rights. He supports this argument by giving several examples of successful implementation of rights without requiring legislation. Although it may be ideal to use other forms of advancement of rights without relying on legislation, not all human rights fit this criterion. For instance, the right to life cannot be advanced through recognition or agitation. The ideal method of advancement should, therefore, be determined by the importance of the right, not as Sen suggests. Economic and Social Rights Extending the idea of human rights to encompass economic and social privileges, for instance, the right to basic education or healthcare has been overly criticised. Although they were not featured in the classical declaration of human rights, they remain an integral part of our current society.22 Sen identifies two lines of criticism that have been employed in negating the inclusion of these rights into the broad realm of human rights i.e. the institutionalization critique and feasibility critique.23 The institutionalization critique is directed at the economic and social rights and finds fault in the correspondence between the rights and the associated duties. As some scholars argue, the rights would only be recognized if they are institutionalized.24 In response, Sen maintains that just like the other accepted human rights, economic and social rights also result to perfect and imperfect obligations and therefore are no different. The society and state can work together to promote these rights and prevent violations. Although institutionalization is a valid solution, Sen states that it undermines the ethical importance of human rights and therefore should be taken in consideration with other approaches such as appropriate legislation, political recognition and social monitoring. Sen, however, misses the point that institutionalization of these rights will make implementation much easier, especially for the three methods that he proposes. The feasibility critique argues that it may not be feasible to achieve most of the alleged economic and social rights, even with the best efforts.25 The observation has been transformed into a powerful criticism where it is assumed that for a human right to be recognized, it has to be wholly accomplishable. If this is the current state, then many of the social and economic rights are put outside the domain of human rights, especially in poorer countries. However, Sen states that complete feasibility is not a condition for cogency of human rights. I agree with Sen that some rights are not capable of being fully realized, but this does not mean that they stop being rights. On the contrary, this understanding creates the need to work towards the realization of the same rights.26 Sen correctly identifies the error in the feasibility critique, unlike his stance on institutionalization. The Reach of Public Reasoning The connection between the formulation of human rights and public reasoning is essential to understand. When faced with unobstructed and open discussion, Sen says that the general plausibility of these ethical claims is dependent on their survival.27 Public scrutiny is important in a number of ways, for instance in terms of providing a guideline in the formation of laws, social monitoring and dismissal or defence of a claim. However, Sen says it should be noted that confining the domain of public reasoning to a particular society is not wise, particularly in the case of human rights meant to apply to all. He contrasts Rawls’s inclination to restrict such public participation to the natives of the country to come up with solutions to domestic affairs.28 Public reasoning, especially in matters concerning human rights, should not have limitations but rather include as many cultures as possible. Throughout history, intelligent leaders have supported public reasoning in decisions that affect the people.29 The need for scrutiny from an external source is essential as it offers a second opinion and questions the social practices that are accepted as normal even though they violate individual human rights. Adam Smith insists that the discipline of critical moral reasoning necessitates the act of endeavouring to view [our sentiments and beliefs] according to how other individuals view them.30 Public reasoning has got an enormous influence on social dynamics. Authoritarian bodies are always wary of uncensored media and other open public discussions, which mostly leads them to resort to suppression. Sen notes that such instances provide indirect evidence on the potential of public reasoning, which activists usually utilize in social recognition, monitoring and public agitation.31 A more comprehensive understanding of public reasoning should, therefore, be pursued, rather than adopting the social norms of the dominant social groups in the society. The conclusion Sen makes on public reasoning is valid and supported by true premises. However, ambiguity is still evident in the claims he makes. Conclusion In a nutshell, Sen identifies human rights as pronouncements on social ethics, rather than precursors for legislation. They are also made sustainable through open public reasoning whereby valid rights are appraised while wrong ones are dismissed. Although the legislation of human rights is one way of implementing them, it is not the only one. Other ways of advancing human rights include public recognition, agitation and social monitoring. Although the presence of debates in the field of human rights is vile, it is pointless if no solutions are made in the long run. Sen suggests that to adequately solve these issues, the sceptics and activists of human rights need to consider either side of the debates first before making any conclusions. All in all, apart from the minor shortcomings of ambiguity and vagueness, Sen’s arguments on the elements that constitute a human rights theory are valid. Bibliography Books Alston P, and Goodman R, International Human Rights in Context: Law, Politics, Morals: Text and Materials. (Oxford University Press 2000). Beitz C., ‘Human rights as a common concern.’ [2001] American Political Science Review 269. Bentham J., Anarchical Fallacies; Being an Examination of the Declaration of Rights Issued during the French Revolution (1792); republished in The Works of Jeremy Bentham, vol. II, ed. J. Bowring (Edinburgh: William Tait 1843) Chatterjee DK., ed. The ethics of assistance: morality and the distant needy. (Cambridge University Press 2004). Donnelly J., Universal Human Rights in Theory and Practice, (2nd ed., Ithaca, Cornell University Press 2003) Falk R., Human Rights Horizons: The Pursuit of Justice in a Globalizing World (New York Routledge 2000) Felice WF., The Global New Deal: Economic and Social Human Rights in World Politics (Lanham, Rowman & Littlefield 2003); Hare I., ‘Social Rights as Foundational Human Rights,’ in Bob Hepple (ed.) Social and Labour Rights in Global Context, (Cambridge, Cambridge University Press 2002); Hart HLA, ‘Are There Any Natural Rights?’ The Philosophical Review 64 (1955), reprinted in Jeremy Waldron (ed.) Theories of Rights, (Oxford, Oxford University Press 1984) Kant I., Critique of Practical Reason (1788), (Beck LW tr, New York, Bobbs-Merrill 1956). Mandela N., Long Walk to Freedom (Boston, Little, Brown & Co, 1994) 21. O’Neill O., Towards Justice and Virtue (Cambridge, Cambridge University Press 1996) O’Neill O., Bounds of Justice (Cambridge, Cambridge University Press 2000) Pogge TW., World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (London, Polity Press 2002) Putnam H., The Collapse of the Fact / Value Dichotomy and Other Essays (Cambridge, Mass., Harvard University Press 2002) Quine WVO., From a logical point of view: 9 logico-philosophical essays. (Vol. 9. Harvard University Press 1980) Shue H., Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (Princeton, Princeton University Press 1980; 2nd ed., 1996) Smith A., The Theory of Moral Sentiments (1759; rev. ed., 1790; republished, Oxford, Clarendon Press 1976) Sunstein C., After the rights revolution: reconceiving the regulatory state. (Harvard University Press 1993) Waldron J., Law and Disagreement (Oxford, Oxford University Press 2001) Journals Cohen J., ‘Review of Sen’s Inequality Reexamined,’ [1994] 92 Journal of Philosophy 275 Cranston M., ‘Are There Any Human Rights?’ [1983] Daedalus 1 Okin S., ‘Poverty, Well-being and Gender: What Counts, Who’s Heard?’ [2003] 31 Philosophy & Public Affairs 280 Sen A, ‘Well-being, Agency and Freedom: The Dewey Lectures 1984’ [1985] 82 Journal of Philosophy 169 Walsh V., ‘Philosophy and Economics,’ in Eatwell J., Milgate M. and Newman P. (eds.), The New Palgrave: A Dictionary of Economics (London, Macmillan 1987) 861–69 Statutes Rawls J., Political Liberalism (New York, Columbia University Press 1993) 110 Rawls J., The Law of Peoples (Cambridge, Mass., Harvard University Press 1999). Sen A., ‘Rights and Agency’ [1982] 11 Philosophy & Public Affairs 3 Sen A., ‘Justice: Means versus Freedoms’ [1990] 19 Philosophy & Public Affairs 111 Sen A., ‘Positional Objectivity’ [1993] 22 Philosophy & Public Affairs 126 Sen A., ‘Elements of human rights theory’ (2004): Philosophy & Public Affairs 315 Read More