Who’s Right about Rights? A Critique on the Universality of Human Rights

Chan Yuk Chi, 3rd Year LL.B., Durham University

The idea of inalienable and hence supreme rights being an objective, and consequently indisputable truth, is alluring. It would mean that we are entitled to benefits or welfare by virtue of our very existence, and that we hold the moral high ground when we defend this entitlement. To be entitled, and believe in that entitlement, is moral, which in turn means it should be encouraged.

But something cannot come from nothing; to say that rights exist simply because we exist is fallacious and leaves a number of other issues unclear. For example, if rights are natural, do they exist in a vacuum? Do they still carry meaning when there is nobody to enjoy them or agree with them? Are they equal to one another or are there hierarchies of rights? And most importantly, how can we be certain that one narrow understanding of what ought to constitute man’s natural rights is correct over another?

It is very telling that there are no simple and satisfactory answers to any of these questions, and that there are still disagreements over basic matters such as the absolute right to life. Attempting to reconcile these quandaries leads one to arrive at any number of convoluted answers and contradictions, as will be shown. Occam’s razor requires that the simplest solution be the correct one, and the simple answer is this: rights exist, not as inviolable stalwarts, but as competing claims in an age-old battle. This is not to say that there isn’t an ideal state of how things ought to be, but unless someone is fighting for that state, it doesn’t matter because all the wishful thinking in the world will not bring about a course of action.


“The Signing of the Magna Carta” by Albert Herter on the north wall of the Supreme Court in Wisconsin State Capitol (Source: Wisconsin History)
The subject of this painting was chosen as a fitting pendant to the Signing of the American Constitution. King John sits at one end of a table before the royal canopy. Behind the king are the bishops of London and Dublin and other prelates. A mail-clad knight stands at the other end of the table. Behind the knight are other barons.

Objectivity

“[A] reason for wishing that a certain right were established, is not that right – want is not supply – hunger is not bread…That which has no existence cannot be destroyed — that which cannot be destroyed cannot require anything to preserve it from destruction. Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense — nonsense upon stilts.”

Jeremy Bentham, ‘Anarchical Fallacies’ (1796)

The analogy that Bentham uses, that claiming objective, inalienable rights exist is “nonsense upon stilts” is particularly fitting because it implies a line of logic that attempts to invalidate opposition or alternative points of view by claiming the moral high ground. The position propounding natural rights must necessarily be correct because to disagree with these utopian ideals would be immoral, evil even.

But rights are not natural, and they do not exist in isolation of the law. The Romans who advocated living virtuous, stoic lives in accordance with ‘nature’ also kept slaves, because even ancient concepts of natural law recognised that rights are not inherent to humanity. These were Bentham’s primary criticisms in relation to the French Declaration of the Rights of Man and of the Citizen, and by extension all concepts of natural rights: they do not exist without anyone to make a claim to them, nor do they exist without the means by which to enforce such a claim, and those who advocate this concept use grand language to say a lot about nothing at all.

Will my citizenship, the colour of my skin, the accent that I speak determine my rights?
Source:
UN OHCR

The claim that rights exist naturally is to make a claim that the existence of such natural rights is an objective fact, but any claim of such objectivity should be questioned simply because of how hard it is for one limited perspective to ever know the whole truth. The Chinese fable of the frog in the well springs to mind. The importance of cultural relativism lies in its ability for proponents to recognise that their own limited experience might prevent them from understanding cultures or behaviours beyond their comprehension. It is not a concession but rather an admission of our own ignorance that we might not know the correct answer. This in itself is proof enough that natural rights and an objective truth about them cannot exist, at least not at present, because there are far too many views on what does or does not constitute a right. It makes more sense to see rights as claims in this regard.

The counter-argument to this is the moderated relativist approach, which states that there are a core group of rights that ought to be universal, regardless of culture. This core group could conceivably be ‘natural’, such as the right to life or the right to not be subjected to cruel, inhumane, or degrading treatment. In which case, who is to say that one interpretation is correct over another’s? What is understood to be a core, natural right will inevitably be influenced by one’s own belief system, which renders it a subjective assessment and hence unnatural insofar as it cannot take place without a human being’s input, typically manifested as the creation of a law.

There are far too many views on what does or does not constitute a right. It makes more sense to see rights as claims in this regard.

Another ideology famous for proclaiming its understanding of the objective truth is
Objectivism. Much like the argument for universality, Rand claims to have the correct answer, and a number of her views even align with natural rights theorists. Her belief in the tyranny of the majority and inviolability of individual liberties would be right at home amongst them.

Except what she believes to be core rights are almost entirely different: she propounds selfishness, self-interest, and greed as mankind’s highest ideals. And yet, there is no logical way to discredit her interpretation of what natural human rights ought to be without resort to a subjective moral argument. The existence of competing interpretations, which are arguably just as valid, is enough to disprove the idea that there is an objective and universal truth about rights. Accepting  that all interpretations  are merely claims, and that  these claims compete for dominance based on their subjective appeals, is the only way to reconcile this conflict.

“I would like to begin by conducting a thought experiment. Try to imagine Nowheresville – a world very much like our own except that no one, or hardly any one (the qualification is not important), has rights. If this flaw makes Nowheresville too ugly to hold very long in contemplation, we can make it as pretty as we wish in other moral respects. We can, for example, make the human beings in it as attractive and virtuous as possible without taxing our conceptions of the limits of human nature. In particular, let the virtues of moral sensibility flourish. Fill this imagined world with as much benevolence, compassion, sympathy, and pity as it will conveniently hold without strain.”

Joel Feinberg, ‘The Nature and Value of Rights’ (1970)

Feinberg’s ‘Nowheresville’ illustrates this best. Would we be content to simply coast by and enjoy the utopian state of things as they were, or would we still seek guarantees to insure ourselves against changes detrimental to our interests? If in a world where everyone lived in accordance with these natural rights we still felt the need to lay claim to them, then that indicates that the core of the concept of rights lies in the act of claiming them, rather than in the normative content of the rights themselves.

Practical Disagreements

Pro-life supporters stand with signs along the street in front of Southwestern Women’s Surgery Center in Dallas in 2013. (CNS photo/Larry Smith, EPA) See TEXAS-CLINICS Oct. 15, 2014.

Cultural relativism often imagines Western ideals as a monolithic construct, which stands in contrast to the varied belief systems of the world. This view could lend credence to the notion that there is an objective truth that the West has figured out, hence why the entirety of the West has united behind it, and relativists are simply waiting for the rest of the world to catch up. Except that this isn’t true, and fundamental disagreements still exist amongst the strongest exponents of universality regarding even the most basic rights.

For example, the absolute right to life is far from a settled debate in the American states where capital punishment is still practiced. In practice, true universality is hard to effect, and the nature of the law and governance requires that there be hierarchies in society where rights are made subordinate. Individual liberties are curtailed by imprisonment. The right to a fair trial is sometimes less important than the security of the nation. Bentham’s second point, that inalienable and universal rights can never truly be achieved because they are self-limiting and self-defeating, is the crux of this argument. The nature of governance requires that some abrogation of some rights be allowed some times, and to expressly deny this is to deny the ability to defend any rights at all.

The paradox of tolerance illustrates this conflict well. Absolute tolerance, taken to its extreme, will inevitably result in its destruction at the hands of the intolerant. The extension of universal rights to people who do not believe in them or wish to claim them, and who will hence not abide or respect them, is an invitation for disaster.

The nature of governance requires that some abrogation of some rights be allowed some times, and to expressly deny this is to deny the ability to defend any rights at all.

Conclusion

Rights can only exist as subjective claims.  Without a homogenous society, it is
impossible to expect every person to subscribe to the exact same belief system such that there can be widely-accepted universality of rights. Beyond that, rights do not exist in a vacuum. They did not exist in nature before man invented the law, and will cease to exist when man is gone until another race of intelligent beings develops a similar concept. Even then, who can imagine what they will eventually come up with?

Striving toward the attainment of a universal standard of living is an admirable goal, but we must remember two things: first, the struggle exists because rights are not universal. And second, it is a struggle. Rights are not gifts; they must be claimed, and they must be protected.


About the author:

Chan Yuk Chi is a third-year law undergraduate at Durham University. He primarily writes science fiction, and is currently working on an academic article discussing S377A of Singapore’s Penal Code.


References can be requested at cogitocollective@gmail.com

Featured image: Black power salute photo. Americans Tommie Smith, center, and John Carlos raise their gloved fists in a human rights protest during their medal ceremony at the Summer Olympics in Mexico City on Oct. 16, 1968. Australian silver medalist Peter Norman stands at left on the podium

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