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Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights.

Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights

At present, it is difficult both to live with and without "rights-talk." On the one hand, life in modern constitutional democracies such as the United States is inconceivable apart from appeals to the idea of rights. Moreover, reference to "human rights" is by now a "staple of contemporary world politics," in the words of one observer. The literature on rights--theoretical and practical, and written from a large number of disciplinary perspectives--is immense.

On the other hand, there is considerable skepticism and disagreement at several points concerning the notion of rights. Some find the concept elusive and unnecessary; some find it linked to an "atomized" view of human beings that disparages community and ignores social responsibility; and some doubt the possibility of making out a successful philosophical defense, either of rights in general, or of human rights in particular. Even those who support a belief in rights frequently differ among themselves over the nature, scope, and grounds of such a belief. As Loren Lomasky rightly claims, the current literature on rights displays, above all, an "exuberant disarray."

The three books before us--all written by philosophers--exhibit sympathy for the ideas of rights, though the authors differ over what kind of rights there are, and how they can be justified. R.E. Ewin sets out to provide a fresh philosophical theory of rights within a still broader "virtues theory of morality." Taking off from Hobbes, though clearly modifying him in the process, Ewin's central claim is that prior to the existence of community, human beings possess certain moral dispositions against cruelty and injustice and in favor of kindness. However, these dispositions or "virtues" cannot be put into practice until actual communities are organized. In that process, the idea of rights becomes essential, for rights "arise from" and are constitutive of cooperation. At bottom, to participate in a community is to agree to abide by an impersonal decision procedure for resolving disputes among members over wants and desires as well as over opinions and recommendations concerning behavior. It is in communities that the ideals of liberty, justice and equality--all instantiated and assured by a system of rights--make sense. On Ewin's account, a liberal democratic order is "the form of state most like and most conductive to community" in that such a state will provide optimum procedural fairness for resolving differences, which is the same as producing optimum cooperativeness.

Lomasky's attempt to develop a general theory of rights begins from a starting point that appears, on the surface at least, to be radically different from Ewin's. While Ewin derives rights from social conditions that are transsubjective and impersonal in character, Lomasky grounds rights in the subjective and personal characteristics of individuals: the subjective experience of purposiveness or "project-pursuant" is the touchstone for a belief in rights. Since human beings are (in general) strongly committed to pursuing their personal projects, and since the projects of individuals are valuable just because they are valued by and are valuable for each individual, and since it is possible to recognize that others are project pursuers in a similar way and with similar commitments, it follows that human beings have good reason to agree to a system of reciprocal rights guaranteeing the equal opportunity of individual project pursuit.

Yet, in important ways, the positions of Ewin and Lomasky turn out to be alike. Fundamentally, both share Hobbes's idea that rights are artificial, rather than "natural," or "given at birth." The initial condition of human life is conflict and competition--it is basically antisocial. Whether people are locked in disputes about irreconcilable wants and opinions, as Ewin contends, or whether they divide over the pursuit of contradictory projects, in Lomasky's version, the only resolution is for human beings to invent and then commit themselves to a cooperative or communal procedure (a "constitution") that assigns rights and responsibilities toward the peaceful coordination of individual interests. The costs in individual frustration of not submitting to such an arrangement are much greater than the sacrifices required of playing by the rules of a communal system.

The artificiality or invented character of rights leads both authors to rejec the idea that rights might somehow be "given," might lay "natural" claim over the moral life of human beings. By contrast, James Nickel sets out specifically to defend a belief in human rights by examining certain international human rights instruments, particularly the Universal Declaration of Human Rights.

Nickel also invokes a Hobbesian "derivation" of rights, but properly acknowledges the standard difficulty with that approach. On Hobbes's account, there is no reason, given favorable circumstances, not to try to gain personal advantage by secretly subverting or cheating on the cooperative system of righs. While Ewin's and Lomasky's accounts of rights each suffer by too cryptic and casual attempts to meet this difficulty, Nickel squarely faces the standard Hobbesian issue.

To overcome this problem Nickel resorts to John Rawls's arguments in favor of fairness and impartiality in establishing and adhering to a system agreeable from everyone's point of view. Unfortunately, Nickel's use of Rawls is not finally convincing either. Especially in the light of Rawls's own reservations about the possibility of applying his theory universally, Nickel's discussion is too cursory.

For one thing, it ignores the counterintuitive effect of trying to employ Rawls's principle of fairness to justifiy "internationally recognized human rights." For Rawls, rights to equal liberty and just treatment may fairly be claimed by all who themselves observe such rights and restrict their behavior accordingly. Thus, those who are most seriously injured by a violation of rights are the people who dutifully play by the rules and go to the trouble of respecting rights when it comes their turn. But on any ordinary interpretation, victims of human rights abuses would not be thought of as primarily those who have complied with the system. Rather, human rights victims are normally believed to be the tortured, the "disappeared," the arbitrarily imprisoned themselves--namely, those who have directly been denied their rights.

In short, the idea of human rights, as it is expressed in existing international documents, conveys the notion that certain fundamental rights are logically primitive: They are not derived from some prior principle on pain of misinterpreting them. This is simply a less mysterious way of saying that some rights are "natural." Nickel does not, I believe, do justice to that way of thinking, nor do Ewin or Lomasky in their respective treatments of standard liberal rights.

Despite deficiencies in respect to this all-important problem of justifying rights, these volumes--each in its own way--help the discussion along. The sustained attention all the authors give the subject reinforces the conclusion that the notion of rights will not soon disappear from our moral vocabulary, even for those whose positions do not feature rights as central to the moral life. In the light of so many incautious claims that rights theories are necessarily "atomistic," Ewin's emphasis upon the interconnection of rights and community is provocative and important.

All three authors have some interesting insights about "economic" or "welfare rights," such as rights to health care. Nickel's excellent discussion of the basis and feasibility of economic rights is an important contribution to the current revision and extension of the liberal tradition. From within an individualistic framework, Lomasky makes a surprising and strong case for "welfare goods as a matter of rights," under very restricted conditions, to be sure. His position prompts reconsideration of traditional liberal inattention to welfare rights, a development exemplified in current scholarship on Lockean natural rights.

Of the three, Nickel's book is the most methodical in clarifying and addressing the various complexities and dimensions of debate over rights. Unlike Ewin and Lomasky, he carefully and properly analyzes the question of moral and cultural relativism.

Nickel's derivation of certain political, legal, and economic rights from the rights he considers basic, and his argument for adding rights of freedom of conscience and due process to the internationally accepted lists of indefeasible rights are important contributions. Finally, more than Ewin or Lomasky, Nickel atends to the conceptual analysis of he idea

James W. Nickel. Berkeley: University of California Press, 1987. xiv + 253 pp. $29.50, cloth ($9.95, paper).
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Author:Little, David
Publication:The Hastings Center Report
Article Type:Book Review
Date:Apr 1, 1988
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