Human rights

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.