1.

Natural law and natural rights

Historically, the idea of human rights reaches back to that of natural rights and that idea
itself developed from the idea of natural law (see Natural law). Natural law was (and is)
conceived as a set of principles or rules governing proper human conduct. These
principles or rules were described as ‘natural’ because they were conceived as ‘given’,
usually God-given, rather than humanly constructed. The idea of natural law first
developed in Stoic thinking in the third century BC (see Stoicism). The idea of natural
rights was a much later development. Recent scholarship (Tuck 1979) suggests that it
first emerged in fourteenth-century Europe; it was at its most popular during the
seventeenth and eighteenth centuries. Natural rights were those rights vested in people
by natural law. So, for example, John Locke held that God’s natural law provided that
‘no one ought to harm another in his life, health, liberty or possessions’ (1689/90). He
then went on to restate that law in terms of the rights it bestowed and the duties it
imposed: each person had a natural right to their life, liberty and property and each had
a natural duty not to harm the life, liberty and property of others.
Why were political thinkers so keen to establish that some rights were ‘natural’? The
answer lies primarily in the dangers posed by political power. How could limits be
placed upon political power so that those subject to it were not vulnerable to its abuse?
Legal rights were inadequate for that purpose since they were merely the creations of
government and what governments gave they could also take away. What was needed
was a set of rights that individuals possessed independently of government, which could
therefore set standards with which governments themselves must comply. Natural
rights, because they were ‘natural’, met that need. Thus, for Locke, human beings held
their natural rights independently and in advance of government. The primary task of a
government was to uphold the natural rights of its subjects and a government that
violated those natural rights lost its right to rule. It was in those general terms that Locke
justified the ousting of James II in the Glorious Rebellion of 1688. The idea of natural
rights was deployed to similar effect in the American Declaration of Independence
(1776) which announced as self-evident truths that ‘all men are created equal, that they
are endowed by their Creator with certain unalienable rights, that among these are Life,
Liberty and the pursuit of Happiness’. The same idea played a prominent role in the
French Revolution and received another influential statement in the Declaration of the
Rights of Man and Citizen (1789).
During the nineteenth century, the idea of natural rights met with a great deal of
scepticism, focused primarily upon the claim that rights could be ‘natural’.
Jeremy Bentham famously dismissed natural rights as ‘simple nonsense’ and natural
and imprescriptible rights as ‘rhetorical nonsense – nonsense upon stilts’ (Waldron 1987:
53). What annoyed Bentham and others was the tendency of natural rights theorists to
present these rights as if their existence and possession were matters of fact. Legal
rights were facts: for any particular society, we could discover the legal rights that its
members enjoy. Natural rights had no similar empirical status. For Bentham, they
constituted rights that their proponents wished existed; but something does not exist
merely because we wish it were so.
2. Human rights and natural rights
In the twentieth century, the language of human rights replaced that of natural rights.
The adjective ‘human’ avoids the questionable metaphysics associated with the
adjective ‘natural’. It also helped to detach these rights from the Christian cosmology
within which natural law and natural rights had become embedded. Clearly, if the goal is
to secure worldwide acknowledgement and acceptance of human rights, those rights
cannot be grounded in a single religious faith. Nevertheless, there are two fundamental
respects in which the idea of human rights remains heir to the natural rights tradition.
First, it ascribes rights to people in their natural capacity as human beings; it shares with
the idea of natural rights the claim that merely being human is sufficient to justify our
having certain entitlements. No human being is rightfully abandoned to the whims and
purposes of others. Second, the primary context in which human rights are asserted
remains political. Human rights, like natural rights, are not merely gifts of the powerful;
they are conceived as entitlements that we have independently of governments and that
we can use to constrain and direct the uses that are made of political power. They also
provide standards by which we can assess the legitimacy of governments and regimes
(see Legitimacy). That is not to say that human rights make demands only upon
governments. Non-governmental organizations, majorities, minorities, and individuals
are all capable of violating human rights. But governments remain the primary concern
of proponents of human rights, because governments have greatest significance both
as the potential guardians and as the potential violators of human rights.
3. Which rights?
Which rights are human rights? There is no uncontroversial way of answering that
question. Many more rights are now claimed as human rights than were previously
claimed as natural rights. Past theorists sometimes identified natural rights as those
rights that individuals would possess in the imagined pre-political condition that they
described as the ‘state of nature’. But many alleged human rights relate to the make-up
and functioning of government, or to goods and services that it can be expected to
deliver, and so make sense only in the context of an organized society. Human rights
are often divided into generations, according to the order in which they appeared in
rights thinking. First generation human rights include rights to basic freedoms, such as
freedom of expression, association and religion (see Freedom and liberty). They also
include rights protecting individuals from the abuse of power, such as rights not to be
subjected to arbitrary arrest, to cruel and unusual punishment, to torture, and to unfair
trial. These first generation rights are often said to be negative rights in that they impose
only negative duties – duties of restraint – upon others. That is largely but not wholly
true. The right to personal security, for example, imposes upon governments a positive
duty of protection rather than a duty of mere abstention.
Socio-economic rights are identified as second generation human rights because, with
some exceptions, they appeared in human rights documents only after the Second
World War. These rights relate, roughly speaking, to the goods and services that we
associate with the welfare state, such as a minimum adequate standard of living, social
security, healthcare, and education. They are ‘positive’ rights in that they entail positive
duties, usually for governments or societies at large, to supply the relevant goods and
services. The right to education, for example, is conceived not merely as the negative
right not to be prevented from receiving education but as the positive right to be
provided with education. Are these second generation rights properly regarded as
human rights? Many commentators (e.g. Cranston 1973) suggest not because, in so far
as people possess socio-economic rights, they do so as citizens of particular societies
rather than as members of the human race. Certainly, when these rights were
incorporated in the UDHR in 1948, they were thought of primarily as rights that each
society should provide for its own members. Thus the members of rich societies could
claim a right to more and better social security, health care, education, etc., than the
members of poor societies. That, in turn, rendered nonsensical the notion that these
were human rights: how could universal human rights entitle some people to more and
better goods and services than others? However, in recent years, partly as a
consequence of globalization, rights to basic material goods, especially the right not to
live in poverty, have been taken much more seriously as global rights that entail
genuinely global responsibilities (e.g. Pogge 2002).
A third generation of human rights is sometimes identified, distinguished by the
collective nature of the goods they encompass. These include, inter alia, rights to
economic and social development, to peace, and to a healthy environment. Whether
goods of this sort can be the objects of human rights, or of rights of any sort, is
controversial. Not every goal that humanity should pursue lends itself to the logic of
rights.
4. Justifying human rights
Insofar as human rights are moral rights, we can ask how these rights might be justified.
The problem here is not one of finding an answer but of finding too many answers.
Virtually any moral theory that takes human beings as it subjects can provide reasons
for human rights in some form. Thus human rights might be grounded in human worth
and the respect that is due to persons, in basic human needs, in the conditions for
human agency or autonomy, in self-ownership, or in certain intrinsic human goods.
Although there is often a tension between consequentialism and rights thinking, human
rights can also be defended consequentially with reference to individual or social well-
being or both (see Consequentialism). They are also open to theological justification and
most religious faiths have some adherents who are willing to find a place for human
rights within their faith.
This rich diversity of justifications for human rights is a strength in so far as it enables
people who subscribe to different philosophies and systems of belief to unite in support
of human rights. But it is also a weakness in that different theories and theologies can
yield different catalogues of human rights: agreement that human beings have rights
need not yield agreement on what those rights are. That is one reason why, if human
rights are to be practically effective, it helps to have international, regional and domestic
political processes that yield clear statements of the human rights people are deemed to
possess (see International law, philosophy of). Indeed, in the face of so much possible
moral disagreement, we might think it sensible to shift the whole idea of human rights
into the territory of enacted law so that they become no more than legal rights. Many
lawyers do indeed think of human rights as no more than the offspring of law. But the
danger of that limited conception is that it places human rights entirely in the hands of
law-makers; people can be deemed to suffer rights violations only in so far as the
powerful grant them rights – if they are granted none, none can be violated.
5. Difficulties and objections
The idea of human rights is now very widely embraced. Even those who are accused of
human rights violations typically respond by denying their guilt rather than by dismissing
the very idea of human rights. Yet not everyone is a believer. In a spirit reminiscent of
Bentham, the philosopher Alasdair MacIntyre has brushed aside human rights with the
quip that ‘there are no such rights and belief in them is one with belief in witches and in
unicorns’ (1981: 69). Even those who do not share wholesale MacIntyre’s scepticism,
recognize that neither the theory nor the practice of human rights is problem-free.
One problem is indeterminacy. For example, almost everyone accepts that there are
some ‘expressions’ that law can properly proscribe, yet documents that assert the
human right to freedom of expression rarely indicate where the limits of that freedom
should fall. The right not to be subject to ‘cruel, inhuman or degrading’ punishment is
clearly open to widely different interpretation. Human rights to education and healthcare
have little meaning if we do not specify the quantity and quality of the education and
healthcare to which human beings are entitled. Developing UN and regional
documentation, and evolving human rights case-law, have made for greater detail in the
specification of human rights, however indeterminacy of the content of human rights,
particularly in the face of competing considerations, remains a significant issue.
That problem relates to a second: the moral weight that we should give human rights.
Given the fundamental importance of human rights and their role as checks upon
political power, we might think that their weight should always be overriding. There are
indeed philosophers who argue that we should treat human rights as ‘absolute’, that is,
as absolutely indefeasible (Gewirth 1982: 218–33). The problem with this straightforward
approach is that, in political life, we often face choices between competing goods or
competing evils, and allowing a privileged set of rights to override every contrary
consideration does not always seem the right course of action. Should we, for example,
treat as absolute the right to life of a homicidal maniac if shooting him seems the only
practicable way of ending his killing spree? Should we never silence someone whose
words seem likely to spark a riot? Can socio-economic rights be unaffected by the
exigencies of economic policy? The need to strike balances and compromises between
competing considerations has sometimes been used to object to the entire rights-
approach to social and political life, most famously by Edmund Burke (Waldron 1987: 77–
118). It is a need that is explicitly recognized in the European Convention on Human
Rights. Yet, once we deprive human rights of an absolute status, it becomes unclear
quite what status they should have, and we risk depriving them of any special status.
Perhaps the issue that worries both proponents and critics of human rights more than
any other is the apparent clash between cultural diversity and the universalism of
human rights thinking. Human rights thinking is often said to reflect Western values, so
that the international success of the doctrine of human rights and its attendant
institutions is really a triumph of the West over other parts of the globe. Even if we do
not accept that charge of cultural imperialism, there remains a tension between the
universalism of human rights thinking and the diversity of cultures, beliefs and values to
which different human communities subscribe. Given the opposition of human rights
thinking to oppressive regimes and its emphasis upon respecting persons and their
forms of life, it is entirely intelligible that proponents of human rights should be as
worried as their critics by the charge that human rights ride roughshod over cultural
diversity (see Multiculturalism).
In examining that charge, a number of mitigating considerations should be noticed.
First, the freedoms that figure prominently in human rights thinking are intended not to
impose uniformity but to enable people to live the different forms of life to which they are
committed. Much human rights thinking aims not to impose a particular conception of
the good life upon people but to establish a framework of freedoms, circumstances and
resources that will enable people to live the form of life that they themselves deem
good. Second, many human rights need to be, or can be, culturally mediated. The
content of the right to education, for example, will have to vary according to the different
cultures and circumstances of different societies. Third, human rights provide for an
essential moral minimum rather than comprehensively for the whole of human life; a
‘thin’ set of human rights can coexist with a ‘thick’ diversity of cultures (Walzer 1996).
Arguably, there is already a high degree of convergence amongst cultures on the moral
minimum represented by human rights (Milne 1986). Finally, the most frequent and
gross violations of human rights arise not from people innocently pursuing rightless lives
within rightless cultures, but from abuses of power or from governments and groups
acting under the sway of ideologies that are every bit as Western in origin as human
rights.
All that said, there remains a conflict between human rights thinking and some aspects
of some cultures, most obviously those that assign a fundamentally unequal status to
different genders, races or castes. If the doctrine of human rights is to be a critical
doctrine and a doctrine of substance and significance, it cannot expect to leave the
world as it finds it.

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