Academic journal article The Journal of Law in Society

The Ethical Bases of Human Rights

Academic journal article The Journal of Law in Society

The Ethical Bases of Human Rights

Article excerpt


I. The General Project.

Human rights have become the grounding of human solidarity. They are, today, the substance of the brotherhood of man. They take the place once occupied by "our common clay," our common ancestry, and our common relationship with the Deity.

This being the case, it is important to understand what, in turn, grounds human rights. There is nothing approaching a consensus: indeed, the impressive edifice on which much of the political order of the world now rests has been constructed based on the conscious decision by its principal authors to prescind from asking this basic question. Unsurprisingly under these circumstances, more and more rights are being proposed, (2) and many divergent theories are propounded as to their bases. (3)

This Essay considers four proposed bases and rejects them. It proposes an account according to which the ethical basis for human rights is the protection of fundamental human attributes. (4)

II. Some Carve Outs.

This Essay does not propose that all human rights be recognized by positive law. Plainly the extent of their recognition may depend on considerations special to the legal system and social order in question. Nor does this Essay aim to determine what, if anything, has been achieved by way of common understanding in international instruments and national law. (Scholars often find common understanding to be in short supply.). Doubtless a common understanding would be most helpful; agreement is central to the noble endeavor of protecting people from many horrific practices. Even muddled pseudo-agreement may be better than none at all. But discerning or promoting such an agreement is not the purpose here.

Instead, this Essay pursues the thoroughly normative project of asking what deserves protection as a human right, largely presiding from the question of whether governments and lawyers see things that way. One seeks to understand such objective realia out of love of knowledge and respect for the truth. One hopes to develop a basis for refuting "human rights nihilism." One aspires to facilitate clarity, and thus to dispel fog and deprive violators of concealment. If the foundational goods prove to be the stuff of ordinary life, as here proposed, then human rights can be focused on them and therefore be better integrated into the moral and social orders of many countries, (5) rather than becoming the "playthings of bureaucrats" and the vehicles for the promotion of novel and meretricious practices.

This Essay does not even maintain that the answers it proposes are the entire story. Only "fundamental goods" and "indispensable goods" are here emphasized. There are others, not here much discussed. Furthermore, this Essay leaves aside many related questions, such as whether each person has the same rights to the same degree, what to do when rights conflict, and when rights can properly be waived or forfeited by misconduct or overridden owing to cost or exigency. (6) Further still, this Essay refrains from addressing the subject of what duties a right generates: notably, the questions of when a right has the effect of immunizing the holder from interference and when a right requires others to assist. (7) All of this permits this Essay to pursue without distraction its principal mission: crafting an account of the principal ethical bases of human rights.

III. The Two Big Questions.

There are two major issues about human rights. The first is: what goods are worthy of any sort of protection, individual, social or legal? The second issue is what characteristics make a good suitable for human rights protection, as opposed to protection of some other sort.

This Essay addresses the first issue in Part One. It is there proposed that the most important goods relate to the nature of the person. A general statement of the thesis is: if you could not be fully a person without something--your life, for example, or your mind--that thing is a part of fundamental good. …

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