The Concept of Human Rights - Term Paper Example

Are human rights a fiction of modern, western liberal democracies that bring us no closer to a shared ethical framework Introduction The concept of “human rights” has been the subject of polarised philosophical debate as regards the rights of the individual versus legal protections conferred by the state, particularly in western liberal democracies. This tension between the legal protection of human rights, political constraints and the extent of individual protection highlights the conflict between legal enforcement of rights in practice and theoretical concepts of ethics. Indeed, Donnelly acknowledges the inherent problem of implementing a philosophical foundation of substantive theory of human rights (Donnelly, 7). It is further submitted that this conflict is mirrored by the dichotomy between the utilitarian and deontological approach to ethics and the focus of this paper is to critically evaluate whether human rights are a fiction of modern, western liberal democracies. It is submitted at the outset that the criticism of the philosophical concept of human rights as a reality centres on the dichotomy between the deontological “shared ethics” paradigm and the utilitarian approach. Therefore, in addressing the debate regarding the reality or “fiction” of human rights, this paper will firstly evaluate the key tenets of ethicist Margaret Somerville as a starting point. Additionally, it is proposed in this paper that the concept of human rights and protection is inherently based on practical enforcement as opposed to simply being rooted in a theoretical ethical concept of innate natural morality and shared ethics. A prime example is the UN Global Compact, where lack of enforcement at global level has undermined the assumption of natural shared ethics. 2. Margaret Somerville and the Ethical Imagination In considering the concept of “human rights,” it is submitted that it is vital to consider what constitutes a “right” in the first instance. For example, Donnelly posits that the concept of having a right and how to have a right presumes the notion of entitlement; however the central element of importance is having these fundamental rights enforced (Donnelly 7). Furthermore, Donnelly highlights the point that the “the ability to claim rights, if necessary distinguishes between having a right from simply being the (rights-less) beneficiary of someone else’s obligations. Paradoxically, then “having” a right is of most value precisely when one does not have the right.” (Donnelly 8). It is submitted that this observation is arguably crucial to the practical success of the shared ethics paradigm in terms of the innate morality informing human adherence to basic fundamental rights. Moreover, Donnelly questions the notion of “shared” rights as in a “Hobbesian state of nature, rights would never be respected; at best disinterest or self interest would lead duty-bearers not to deny the right holder the object of her right (Donnelly 8). Accordingly, Donnelly’s points highlight the point that whereas ethics refer to the morality of human rights, this can contrast with the actual enforcement of morality as defined by ethical theory under an international legal framework. Indeed, Donnelly highlights the point that ““Human rights traditionally have been thought of as moral rights of the highest order. They have also become, as we will see in more detail later, international legal rights” (Donnelly, 11). As such, this has led to commentators questioning the concept of human rights in international relations and whether they in fact are a fiction of Western liberal democracies. If we further consider ethical theory, the two central theories pertaining to ethics is the deontological and utilitarian approach to moral behaviour. The utilitarian approach considers ethics in terms of results and the deontological approach prescribes that moral behaviour should be under predetermined principles, which cannot be violated (Donnelly). Somerville’s is a key proponent of the deontological approach and rather than adopt an individualistic approach, Somerville refers to the concept of the “secular sacred” in the leading work “The Ethical imagination: Journeys of the Human Spirit” (2007). The essence of the “secular sacred” concept of ethics is that there are basic human rights and values that are common to humans irrespective of religious or cultural beliefs; which in turn supports her notion of the “shared ethics” in morality. However, Somerville goes further and argues that the crux of ethics with regard to human rights is whether it is “inherently wrong?”(Somerville xi). Furthermore, Somerville argues in considering human rights protection, often the legal issue of human rights protection is inherently linked to the issue of whether it is ethical and that to consider ethics, “we must first ask whether what we plan to do is inherently wrong. Although as societies we once commonly addressed this question….a wide variety of societal factors has led us as societies to rely instead on a situational ethics approach that says that nothing is inherently wrong, rather it all depends on the situation.” (Somerville xi). As such, Somerville posits that in considering the wider concepts of ethical morality, it is important to note that “the primary question in this approach is: Does it do any good? Moreover, what is possible and even legal might not be ethical”. Therefore, to this end, Somerville argues that in considering the notion of “human rights” protection need to consider the concept of ethics (Somerville, xi). However, in discussing the concept of what constitutes inherently wrong and immoral, Somerville’s central ethical paradigm relies on the shared ethics concept and that “ethics …… is characterised as moral policing within the primary function of restricting and inhibiting people….. but this is not the only way of to view ethics” (Somerville xi). Nevertheless, the crux of this shared ethics approach relies on human compliance, which is arguably unrealistic. Indeed, if we reconsider Donnelly’s observations regarding human rights and makes the point that “human rights are not just abstract values such as liberty, equality and security. They are rights, particular social practices to realise those values. A human right thus should not be confused with the values or aspirations underlying it or with enjoyment of the object of the right” (Donnelly 11). Therefore, Somerville’s ethical imagination mirrors Kant’s theoretical idealism that a 2true system of politics cannot… take a single step without first paying tribute to morality. For as soon as those two come into conflict, morality can cut through the knot which politics cannot unite” (Kant, translated by Nisbet, 1989). In contrast, it is submitted that Somerville and Kant’s belief in the presence of shared innate human morality is flawed and not reflected by reality. This is further supported by Donnelly’s reference to Hobbensian ethical theory, which asserts that nature is scarce and “I put for a general inclination of all mankind, a perpetual and restless desire of power after power, that ceaseth only in death” (Hobbes, Leviathan, quoted in Morgan, 2001, p.523). Under Hobbes’ strand of realism, humans are only moral to the extent that they follow rules and regulations imposed by the state, which undermines any notion of innate “shared ethics”. This is further highlighted if we contextually consider the UN Global Compact. 3. The UN Global Compact, Ethics in Corporate Responsibility & The shared Ethic Paradigm. The United Nations (UN) describes the Global Compact as “a strategic policy initiative for businesses that are committed to aligning their operations and strategies with ten universally accepted principles in the areas of human rights, labour, environment and anti-corruption” (www.unglobalcompact.org accessed 26 May 2009). The UN Global Compact is voluntary and the underlying objective the introduction of social responsibility into international business. In essence, the UN Global Compact is a voluntary corporate citizenship network geared towards the mainstreaming business activity ethics worldwide and preservation of UN human rights’ objectives (Macintosh et al, 2004 at p.11). However, the Global Compact does not impose sanctions or implement an enforcement framework and is not a regulatory instrument. Indeed, Macintosh et al highlight the fact that “the Global Compact relies on public accountability, transparency and the enlightened self interest of companies” (Macintosh et al, 2004 p.11). In the absence of any regulatory code, Slaughter further refers to there naive assumption that information sharing and self regulation will fuel a dynamic process towards human rights compliance (Slaughter, 2004, p11). However there is a distinct lack of government authority for enforcement of the network and the efficacy of the UN Global Compact is inherently reliant on voluntary participation and compliance by non-state corporate entities in UN member states, which has fuelled debate as to its efficacy and purpose in practice. Additionally, this lack of enforcement of the Compact at international level highlights the inherent problem of governments imposing trade blocks vis-à-vis countries with poor human rights records. The Compact itself lacks any effective sanctions and one government’s sanction will not prevent the embargoed country trading with other countries, with a prime example being China’s increasing economic activity in Africa. This further undermines the concept of human rights under the deontological “shared ethics” paradigm. 4. Shared Ethics, Common Human Nature & Gender Equality Notwithstanding the criticism of a “fictional” human rights notion; Somerville’s shared ethics paradigm whilst important in addressing the concepts of morals and wrong in ethics; is naïve propounding the “natural assumption” as regards the sacred secular compliance. Furthermore, Somerville’s extrapolation of ethical theory has proved controversial as in addition to her definition of ethics, she further defines what she considers to constitute ethical behaviour under the shared ethics paradigm. For example, her discussion of parenting appears to suggest that IVF is unethical due to parents “depriving” children of their natural parents. Somerville’s suggestion is that such children are deprived of identity and therefore the scientific process violates ethics by both parents and society. For example, with regard to the experience of a parent seeing a newborn, Somerville asserts that “parents and children’s bonds to one another – especially a parent’s unconditional love for their children simply because they are their children – are often described as sacred” (Somerville 59). However, if ethics are sacred under the “sacred secular”; then this refers to Somerville’s theory of moral relativity, which suggests that identity is a socially constructed phenomenon. On this basis, morality would also be socially constructed and Somerville’s discussion of IVF suggests that in this sense, the moral identity is intrinsically self-centred in focusing on adult needs as opposed to the child’s. Moreover, Somerville goes much further in suggesting that the biological process of reproduction intrinsically renders same sex marriage unethical on grounds that “marriage is a compound right…. in an ethical society cannot accept same sex marriage as ignores children’s rights” (Somerville 60). However, it is submitted that Somerville’s observations of the changing dynamic of familial relationships contradicts the “shared ethics” concept of presumptions in favour of natural to which Somerville places so much emphasis in terms of morality and universal enforcement of human rights. For example, Somerville’s apparent ignorance of same sex couples as a natural form of love leads to the flawed conclusion that same sex couples are inherently unethical parents. In turn, this weakness in Somerville’s arguments highlights the inherent paradox of deontological theory, which in turn has been utilised as a basis to challenge the concept of universal human rights in practice. This is further highlighted by Somerville’s entrenched reference to the notion of nature informing shared ethics and interdependency of humans as such. Somerville’s central theory is the concept of the “secular sacred” and that ethics looks away from the self and based on nature, which in turn supports her notion of shared ethics. To this end, Somerville emphatically refutes the suggestion that there is no common human nature and argues that there are universal moral principles based on human nature. To this end, Somerville’s extrapolation of ethical theory would appear to suggest that there are “shared ethics” of human nature applicable universally regardless of culture; which in turn would undermine the proposition that human rights are merely a fictitious, theoretical concept. However, in reality, Somerville’s arguments are somewhat naïve and ignore the reality of cultural norms shaping the parameters of human rights and human rights compliance. This is particularly evident if we contextually consider the relationship between religion and gender equality with certain Islamic nations. For example, Afkhami highlights that currently Muslim women live in vastly different lands, in a variety of multicultural societies, climates, cultures, traditions, customs, politics, and economies, (Afkhami, 1; El-Solh & Mabro, 1). Moreover, the exposure of Muslim women to other cultures has fuelled the issue of gender equality in Islam. To this end, Afkhami highlights that in the heart of this conflict lies the dilemma of Muslim women’s human rights; namely whether Muslim women have rights because they are Muslim women, or whether Muslim women have rights by virtue of them being human beings (Afkhami, 1). From the internal perspective, the central argument influencing Islamic assignations of a woman’s role is the inviolability of the religious text (Afkhami, 1). To this end, Beck et al explain that the gender roles and extent of protection prescribed to women in Islam are often interpreted according to the express word of the Koran; which Muslim believers consider the literal word of God as revealed to the Prophet; or alternatively by subsequent legislation procured from interpretations of the Koran and the traditional saying of the Prophet (Beck et al 25). This overrides any concept of the “nature presumption” in the “sacred secular” ethical concept and proponents of increased gender equality and protection, have to deal with the religious context. A prime example of this is Vogel’s study of Islamic Law and the Legal System, which demonstrates that the legitimacy of marrying up to four wives is enshrined in the Koran. In very traditionalist countries, the practice of polygamy is regarded as a husband right and is justified by religious law and therefore cannot be questioned or modified, even in the marriage contract (Vogel). Other examples of customs involving male domination over women, which are widely justified as “Islamic” and “religious”, include injunctions of female obedience to males, the proper dress and modest behaviour of women, and the exact inheritance shares of family members giving women half of the share of men; which again confounds any concept of universality of common human protection of basic rights regardless of culture. It further challenges Somerville’s notions regarding individuality in approach to ethics, which is arguably supported by the fact that in Islamic law women are required to have male guardians; they are considered to have less reason than men and a female’s testimony is worth half that of a male (Beck et al, 25-26). Additionally, men are allowed to divorce unilaterally while women only for limited reasons, before courts, and with difficulty; and child custody, after a certain age is consistently granted to men (Vogel 23). This religious framework ostensibly operates against gender equality of women and is further compounded by the incorporation of religious doctrines into the national legal framework in Muslim countries. 5. Conclusion It is submitted that whilst it is clearly too dogmatic to assert that the concept of human rights as an internationally accepted concept is merely a fictitious concept of western liberal democracies; the above analysis highlights how the concept of a human rights paradigm under a shared ethical framework is clearly flawed. This was further evidenced by the discussion of gender equality and the UN Global Compact. Moreover, the UN Global Compact highlights the point that compliance can be self motivated beyond the notion of wanting to be ethical under the shared ethical framework. This highlights the wider issue of the need to implement a cohesive international legal framework to enforce meaningful sanctions for human rights violations. The underlying theoretical concept of the share ethical framework is rooted in the assumption of nature and common human nature adhering to certain basic fundamental rights regardless of culture. However, this naïve assumption is clearly undermined by the reality, which demonstrates that cultural norms play a significant role in shaping human approach to human rights. Indeed, Somerville’s approach to what constitutes ethical behaviour fails to address the role of cultural norms and changing societal norms. As such, it is submitted that any reality of shared ethical framework of human rights needs to recognise the interrelationship between changing socio-cultural norms and how these impact perception of what constitutes a human right and appropriate enforcement in ethical theory going forward. Bibliography Afkhami , Mahnaz. Faith & Freedom: Women’s Human Rights in the Muslim World. Syracruse University Press 1995 Beck, Lois & Keddie, N. Women in the Muslim World Harvard University Press, 1980. Beneria, L. & S. Bisnath. Global tensions: challenges and opportunities in the world economy. Routledge, 2004 Donnelly, Jack. Universal Human Rights in Theory and Practice. Cornell University Press, 2003 Fawzi El-Solh , Camilla & Mabro, Judy. Muslim Women’s Choices: Religious Belief and Social Reality Palgrave 1994 Fellner, K. Wrestling with Starbucks: Conscience, Capital Cappuccino. Rutgers University Press, 2008 Kent, S., G. Cheney & J. Roper. The debate over corporate social responsibility. Oxford University Press, 2007 Macintosh, M, Sandra Waddock & G. Kell Learning to talk: Corporate citizenship and the development of the UN Global Compact. Greenleaf Publishing, 2004 Morgan, W. Questionable Charity: Gender, Humanitarianism, and Complicity in American Literary Realism. University Press of New England, 2001 Nisbet, H. S. & Reiss, H. S. Kant: Political Writings. Cambridge University Press, 1991 Shleifer, A., & Vishny, R. Corruption. Quarterly Journal of Economics, 108: 599-617, 1993 Slaughter, A. A New World Order. Princeton University Press, 2004 Somerville, Margaret. A. The ethical imagination: journeys of the human spirit. 2006 Anansi Somerville, Margaret. The Ethical canary: science, society and the human spirit. McGill-Queen’s Press, 2004. Vogel, Frank E. Islamic Law and Legal System: Studies of Saudi Arabia. Brill Publishing 2001 Wilkinson, R. & S. Hughes (2002). Global Governance: Critical Perspectives. Routledge Wilkinson, R. & S. Hughes (2002). Global Governance: Critical Perspectives. Routledge Legislation European Convention of Human Rights at www.hri.org Universal Declaration of Human Rights at www.UNHCR.org/HighCommissioner accessed September 2009 Human Rights Act 1998 at www.opsi.gov.uk Read More