Academic journal article
By Pakaluk, Michael
Ave Maria Law Review , Vol. 10, No. 2
There is no theory of human rights in Aristotle, yet, Aristotelian political theory provides a suitable context for the affirmation and 5evelopment of a theory of human rights.
I. NO THEORY OF HUMAN RIGHTS IN ARISTOTLE
This claim that there is no theory of human rights in Aristotle can be approached in various ways. One way is to observe that Aristotle has no language for human rights, and that, indeed, his central notions for political philosophy are strikingly different--because what he wishes to emphasize are such notions as merit, virtue, participation in the constitution, and citizenship. (1) For Aristotle, dikaion, like the Latin ius, signifies an objective equality of persons in relation to goods of fortune and with a view to some transaction or exchange. (2) Again, citizens subjectively may possess exousia, similar to Latin potestas, but this exousia is acquired and based on some antecedent claim of merit. (3) Finally, the term kurios represents de facto control, or sometimes a lawmaking power, but not an immunity from lawful restriction. (4)
As is well known, Fred Miller has claimed that Aristotle had a notion of human rights; (5) yet it seems to me that Malcolm Schofield is correct in his assessment:
In order to exhibit Aristotle's philosophy of political justice as a rights-based theory, [Miller] has to undertake a massive exercise in what we might call retranslation. The ordinary meanings of words like dikaion ("just"), exousia ("power"), and kunos ("in authority / control") are subject to a revisionist program of linguistic regimentation. How Aristotle actually talks is the best clue we have to how he thinks. If he thinks in terms of worth or desert, it is not, at the end of the day, very helpful to recast that thinking in terms of rights. (6)
The other way of approaching the thesis is to observe that Aristotle either rejects the purposes for which the theory of human rights has typically been proposed, or achieves those purposes through means, characteristic of his philosophy, other than through any such notion as human rights, as will be the argument in the present Article.
II. THE DOCTRINE OF HUMAN RIGHTS AND ITS VARIOUS PURPOSES IN POLITICAL DISCOURSE AND POLITICAL ACTION
A. Rights as Truths About Equality
The doctrine of human rights may be invoked simply to assert a truth, the equality of all human beings, a "proposition," which political association is then meant to affirm through its institutions and procedures. (7) Thus, Thomas Jefferson in the Declaration of Independence appeals to "truths" which are said to be "self-evident," (8) and Abraham Lincoln astonishingly asserts that the purpose of the American republic was to affirm a proposition, as the nation was "conceived in liberty, and dedicated to the proposition that all men are created equal." (9) Call this "Rights as Truths about Equality."
B. Rights as Limiting Government
It may serve to mark out a limited purpose of government-namely, that of vindicating certain enumerated rights--and therefore to establish a limited authority of government, so that the government may not licitly do more than vindicate those rights. (10) Call this, "Rights as Limiting Government."
C. Rights as Justifying Revolution
The doctrine has been used to establish a right to revolution, precisely by vesting the authority to vindicate rights originally with the people: on this view, political sovereignty is understood as the people's transferring this right to the government in a social contract, and, if the government fails to keep its end of the bargain, the people become justified in initiating a revolution. (11) Call this "Rights as Justifying Revolution."
D. Rights as Trumping Deliberation
More recently, the theory is appealed to in order to place certain matters outside the democratic process, not subject to ordinary democratic deliberation and debate: whatever is alleged to be right in this sense, then, is regarded as forever fixed and irrevocable---since a "right" is a political reality which cannot justifiably be altered even, supposing, in the establishment of a new constitution in the wake of a revolution, since any valid social contract must presuppose and be effected within the boundaries of these rights. …