What are the theoretical foundations of human rights?
Natural Rights Theory
It can be helpful to contextualise contemporary human rights law within a history of philosophical thought that has considered individual’s rights.
In the seventeenth century, John Locke came up with the theory of natural law. He believed that individuals possess certain inalienable rights, such as life, liberty, and property, which are inherent to their nature as human beings. This concept of natural rights provided the foundation for the 1689 Bill of Rights, the American Declaration of Independence, and the French Declaration of the Rights of Man and Citizen. Locke’s theory also states that governments are formed to protect these rights, and if they fail to do so, the people have the right to revolt and establish a new government.
Locke’s natural rights theory continues to be used to argue for the universality of human rights today, and its influence can be seen in contemporary debates on the rights of the individual.
Utilitarianism
Jeremy Bentham, a prominent utilitarian philosopher, offered an alternative perspective to Locke’s natural law. He argued that the morally right action is the action that produces the most good, known as the “greatest happiness principle,” which stands in contrast to the natural rights approach. Bentham dismissed natural rights as “nonsense upon stilts” and believed that rights should be based on their utility. This utilitarian view has had a significant impact on human rights theory and law, as it emphasizes the consequences of actions and policies.
One example of the utilitarian approach to human rights is the development of economic and social rights, such as the right to education, healthcare, and social security. These rights are often justified on the basis that they contribute to the overall well-being and happiness of society. However, the utilitarian perspective has been criticized for its potential to undermine individual rights in the pursuit of the greater good. Critics argue that utilitarianism can justify the violation of certain rights if it leads to a net increase in happiness, which may conflict with the principles of human rights law.
Kantian Ethics
Immanuel Kant’s deontological ethics is based on the idea that ethical actions follow universal moral laws, rather than being determined by their consequences. Kant believed that human beings have an inherent dignity and worth, which gives rise to certain moral duties and obligations that form the basis of human rights. This approach has been influential in the development of human rights theory and law, as it provides a strong moral basis for the protection of individual rights.
However, Kantian ethics has also been criticized for its rigidity and inflexibility, as it can lead to morally problematic outcomes in certain situations. Critics argue that a strict adherence to Kantian principles may require individuals to uphold the truth, even when doing so would cause significant harm to others. Despite this criticism, Kant’s deontological approach remains an important part of the ethical foundations of human rights.
Liberalism and Human Rights
John Rawls’ theory of justice has had a significant impact on the understanding of human rights within the context of political liberalism. Rawls argued that a just society is one in which the government acts as a distributor of liberties and economic resources, ensuring that all individuals have a fair and equal opportunity to succeed. His concept of the “veil of ignorance” says that an individual who is hypothetically tasked with designing the basic structure of society should be ignorant of the social position, talents, and personal characteristics that they would have in this new world. This thought experiment is meant to ensure that the resulting society is just and fair.
Rawls also argued that liberal societies, which respect individual rights and the rule of law, are more likely to cooperate with one another and avoid conflict. His emphasis on the government’s role in distributing resources and ensuring equal opportunities has informed debates on issues such as poverty, education, and healthcare.
Communitarianism
Communitarianism, as represented by thinkers such as Charles Taylor and Michael Sandel, is a critique of liberal theory, choosing instead to emphasize the importance of community and cultural context in understanding human rights. It calls for a cross-cultural dialogue between representatives from different traditions, recognizing that human rights are not universally applicable in the same way across all cultures and societies. This approach has been influential in shaping contemporary human rights theory and law, particularly in the areas of cultural rights, minority rights, and cultural relevatism.
However, communitarianism has also been criticized for potentially undermining the universality of human rights, as it may allow for cultural practices that violate individual rights to be justified on the basis of tradition or community values.
Feminist Perspectives
Feminist thinkers, such as Simone de Beauvoir and Catherine MacKinnon, have had a major impact on the understanding and protection of women’s rights as a defined category of human rights. De Beauvoir’s work, “The Second Sex,” examined the ways in which women have been historically oppressed and marginalized, while MacKinnon has focused on the legal aspect of women’s rights.
Feminist perspectives have been influential in shaping contemporary human rights theory and law, particularly in the areas of sex-based rights, reproductive rights, and violence against women. They have also highlighted the importance of an intersectional perspective that recognises the intersecting nature of women’s rights with various other types of oppression.
Despite the progress made by feminist writers, challenges remain in achieving full equality and addressing the ongoing violations of women’s rights around the world. This highlights the need for continued action to ensure that women’s rights are respected and protected as a defined category of human rights.
Postcolonial Perspectives
Postcolonial perspectives on human rights, developed by thinkers such as Frantz Fanon and Gayatri Spivak, examine the legacy of colonialism and its impact on contemporary human rights. Fanon’s work, particularly his book “The Wretched of the Earth,” has been influential in shaping postcolonial thought by examining the psychological and cultural effects of colonialism on both the colonised and the colonisers. Spivak, on the other hand, has focused on the ways in which colonialism has shaped the production of knowledge and the representation of the “Other” in Western thought.
Postcolonial perspectives have been influential in shaping contemporary human rights theory and law, particularly in the areas of cultural rights, indigenous rights, and the rights of marginalized communities. They have also informed debates on the relationship between human rights and the legacy of colonialism, as well as the role of international human rights institutions in addressing the ongoing effects of colonialism.
However, postcolonial perspectives have also been criticized for potentially reinforcing a binary opposition between the West and the “Rest”. These criticisms have led to a more nuanced postcolonial critique, one which emphasises the need for positive change and development in the postcolonial context.
Indigenous Perspectives
Indigenous perspectives on human rights focus on the unique experiences and rights of indigenous peoples across the world. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) outlines the rights of indigenous peoples to self-determination, cultural preservation, and protection from discrimination and exploitation. The history of protecting the rights of indigenous peoples has been marked by both progress and setbacks, with international recognition of indigenous rights growing in recent decades.
Indigenous perspectives have been influential in shaping contemporary human rights theory and law, particularly in the areas of land rights, cultural rights, and the rights of marginalized communities.
Despite the progress made by indigenous perspectives, challenges remain in achieving full recognition and protection of these rights, as well as addressing the ongoing violations of indigenous rights around the world. Indigenous peoples continue to face significant challenges in asserting and protecting their rights, and there is still much work to be done to ensure that their rights are respected and protected.
