Natural Human Rights Essay & Legal Rights Discussion & Essay


Professor Instructions:1-Choose an argument from the attached textbook.For example, Argument 4.1 in the textbook: “Rawls’s contractarian Justification for legal rights” which has numbered sentences (those our premises). So, in this argument, there are 25 premises and the last one is the conclusion statement. We only need to choose 2 premises of them. That was just an example to explain how the argument to be chosen and there are more in the attached textbook.2-Write 5-page essay about the argument chosen following exactly the attached rubric named “The “Pro” and “Con” Essay Format”: – The rubric includes 2 formats, and you need only to choose one format either “pro” or “con” to follow when you build your essay. – I think the “pro” essay format is easier to follow.3-Please, please follow the rubric carefully and focus more on: -Theoretical observation (this is a broad theoretical groundwork upon which the whole argument rests) -Significance (this is a concrete example from the world in which these issues play out today).

The “Pro” and “Con” Essay Format
Pro Essay (5 pages)
Pro Introduction: The author (fill in) argues for the following controversial conclusion: (give
conclusion). He supports this conclusion with the following premises: (a) (give first premise)
and (b) (give second premise). This essay will examine each premise in the light of objectors
and then defend the author from these objections.
The possible objection to the first premise (give the objection(s)).
Reply to the first objection (give pointed reply).
The possible objection to the second premise (give the objection(s)).
Reply to the second objection (give pointed reply).
Theoretical observation (this is a broad theoretical groundwork upon which the whole argument
Significance (this is a concrete example from the world in which these issues play out today).
Con Essay (5 pages)
Con Introduction: The author (fill in) argues for the following controversial conclusion (give
conclusion). He bases his argument on two objectionable premises: (a) (give first premise) and
(b) (give second premise). It will be the contention of this essay that these premises are mistaken
thus rendering the conclusion unproven.
Objection to the first premise (give objection).
Counter-refutation by the author (imagine how the author would respond to your objection)
Counter-refutation against the author (show how the author’s response is inadequate)
Objection to the second premise (give objection).
Counter-refutation by the author (imagine how the author would respond to your objection)
Counter-refutation against the author (show how the author’s response is inadequate)
Theoretical observation (this is a broad theoretical groundwork upon which the whole argument
Significance (this is a concrete example from the world in which these issues play out today).
Natural Human Rights
A Theory
This timely book by internationally regarded scholar of ethics and
social/political philosophy Michael Boylan focuses on the history,
application, and significance of human rights in the West and in China.
Boylan engages the key current philosophical debates prevalent in human
rights discourse today and draws them together to argue for the existence of
natural, universal human rights. Arguing against the grain of mainstream
philosophical beliefs, Boylan asserts that there is continuity between human
rights and natural law and that human beings require basic, essential goods
for minimum action. These include food, clean water and sanitation, clothing,
shelter, and protection from bodily harm, including basic healthcare. The
achievement of this goal, Boylan demonstrates, will require significant
resource allocation and creative methods of implementation involving public
and private institutions. Using the classroom-tested dynamic approach of
combining technical argument with four fictional narratives about human
rights, the book invites readers to engage with the most important aspects of
the discipline.
MICHAEL BOYLAN is Professor of Philosophy and Chair of the
Philosophy Department at Marymount University. He is author of twenty-six
books and more than a hundred articles. His monograph A Just Society (2004)
was recently the subject of an edited volume featuring fourteen authors from
eight countries entitled Morality and Justice: Reading Boylan’s “A Just
Society.” He has served on professional and governmental policy committees
and was a Fellow at the Center for American Progress and a program
presenter at the Brookings Institution. He is an international figure who has
been an invited speaker at a number of prominent universities outside the
United States, including Oxford, Cambridge, Manchester, University College
London, Trinity College (Dublin), University College (Dublin), the
Sorbonne, the Katholic University of Leuven, University of Oslo, University
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of Copenhagen, Cologne University, Bochum University, Twente and Delft
Universities, Valparaiso University (Chile), University of Sydney, University
of Melbourne, Australian National University, and Charles Sturt University
(Waga Waga, Australia). He is also a published novelist and poet.
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Natural Human Rights
A Theory
Michael Boylan
Marymount University, Virginia
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32 Avenue of the Americas, New York, NY 10013-2473, USA
Cambridge University Press is part of the University of Cambridge.
It furthers the University’s mission by disseminating knowledge in the
pursuit of education, learning, and research at the highest international levels
of excellence.
Information on this title:
© Michael Boylan 2014
This publication is in copyright. Subject to statutory exception and to the
provisions of relevant collective licensing agreements, no reproduction of any
part may take place without the written permission of Cambridge University
First published 2014
Printed in the United States of America
A catalog record for this publication is available from the British Library.
Library of Congress Cataloging in Publication data
Boylan, Michael, 1952–
Natural human rights : a theory / Michael Boylan.
pages cm
Includes bibliographical references and index.
ISBN 978-1-107-02985-9 (hardback) – ISBN 978-1-107-66421-0
1. Human rights – Philosophy. 2. Human rights – Cross-cultural studies.
3. Natural law. 4. Natural law – Philosophy. I. Title.
jc571.b6752 2014
323.01–dc23 2013041798
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ISBN 978-1-107-02985-9 Hardback
ISBN 978-1-107-66421-0 Paperback
Cambridge University Press has no responsibility for the persistence or
accuracy of URLs for external or third-party Internet websites referred to in
this publication and does not guarantee that any content on such websites is,
or will remain, accurate or appropriate.
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For my family: Rebecca, Arianne, Seán, and Éamon
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Part One: Conceptualizing Human Rights
Overture: “The Spotted Butterfly”
1 How Do We Talk about Human Rights?
2 A Short History of Human Rights in the West
3 A Short History of Human Rights in China
Part Two: Justifications for Human Rights
Adagio: “Double Talk”
4 Legal Justifications
5 Interest Justifications
6 Agency Justifications
7 Ontology, Justice, and Human Rights
Part Three: Applications of Human Rights
Scherzo: “Straight to the Top”
8 War Rape
9 Political Speech
10 LGBT Rights
Rondo: “The Game”
Afterword: The Politics of Change
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I have fashioned this book as a symphony. There are several forms of the
symphony, but in this depiction I have sought a literal and an artistic
understanding of this word. Sym-phonia (συμφωνία) means bringing together
various sounds or voices into a coherent presentation. So literally, the
etymology refers to creating a harmony of voices, and since there are many
voices in the cacophony of human rights discourse, I have taken it upon
myself to present many of these voices and the patterns they convey and then
to forge what I think is an account that best addresses critical problems: the
melody of natural human rights.
The second meaning of the word refers to the artistic way I try to do this.
My composition technique combines what I have termed “direct discourse
philosophy” with “fictive narrative philosophy.”1 Direct discourse philosophy
is what most people in the West think of when they consider philosophy. The
materials are the claim (conclusion) and the reasons (premises that interact
via an inferential logical structure). Most of this book is presented via direct
discourse philosophy. However, there are a few variations to the themes via
fictive narrative philosophy, as well. These come in the form of four original
short stories that introduce each movement in the composition.
A musical symphony begins with an overture. This sets up the various
themes that will be explored in the composition. In this case various inputs
from the philosophical and political science literature are lightly set out in
terms of background conditions in the current world affairs (Chapter 1). The
overture presents the themes that will be developed.
These themes include the traditions in the West and in China (Chapters 2
and 3) so that a more inclusive vision of the setting of human rights and
natural law might be presented. In the process of setting out these histories, I
have sought to give a more comprehensive shared community worldview
account by melding direct discourse philosophy of various eras with glimpses
of literature from that time. The addition of brief literary overviews works in
counterpoint to the direct philosophy. This is a common practice among those
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who compose histories.
Next is the adagio. This is a rather more slowly moving time signature. In
the very brief period of my life in which I tried composing classical music I
would always pay attention to the adagio. It would reveal the essence of what
was being put forth. Here as well, I examine what I feel are the principal
theories that would justify human rights (Chapters 4, 5, and 6). Each is
brought forward with its strengths and weaknesses. Obviously, I believe my
own theory of agency-based human rights is the best choice. Therefore, I end
the adagio movement with a strong presentation of my own version of natural
human rights.
There is then an elision (Chapter 7) presenting my theory on how people
actually accept new normative theories and the ontological commitments that
various approaches entail. The elision leads to the scherzo (Chapters 8, 9, and
10), which is spritely and briefly sets out an application of the theory through
three cases that both mirror the table of embeddedness’s first three levels
(basic goods level one, basic goods level two, and secondary goods level one)
and are consonant with the three short stories that deal with the same
problems: war rape, political speech, and LGBT rights. The scherzo moves
quickly toward the ultimate resolution (cadence) in each instance.
In the rondo, the allegro pace continues the upbeat tempo and moves us
toward summative resolution on how we think of political change and who is
responsible for it.
Throughout, I engage each section with a short story that fits within the
general plan of the table of embeddedness. I believe that this sort of
presentation will resonate well with a wide range of readers and especially
among those in the classroom (according to my coauthored empirical study).2
Fiction connects with virtually everybody in presenting some essential
characteristics of the problem at hand. In this symphony, there is a short story
that is meant to represent what I call fictive narrative philosophy that presents
another way to support the point of contention at hand.
Because of this innovative approach, I believe that this text can reach
readers especially by
presenting major modes of thinking about human rights
setting out traditional ways that the West and China understood natural
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law (and the resulting human rights)
examining the most prominent ways that human rights are justified
within the current debate in the Western tradition
arguing for an original position of natural human rights
applying the apparatus to selected key problems relevant today
introducing each major section with a short story that depicts a violation
of human rights in line with the pedagogical structure presented
I believe this is a unique book that combines a variety of modes of
conceptualizing human rights and provides an apparatus with which the
reader can integrate the arguments into a worldview-challenging experience.
1 For further explication on the way direct discourse philosophy and fictive
narrative philosophy work, see Michael Boylan and Charles Johnson,
Philosophy: An Innovative Introduction: Fictive Narrative, Primary Texts,
and Responsive Writing (Boulder, CO: Westview, 2010).
2 “Using Fictive Narrative to Teach Ethics/Philosophy,” coauthored with
Felicia Nimue Ackerman, Sybol Cook Anderson, Gabriel Palmer-Fernandez,
and Edward Spence, Teaching Ethics 12.1 (Fall 2011): 1–34.
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I would like to thank Jeff Reiman, Ethelbert Miller, Wanda Teays, Thomas
Pogge, Bill Haines, and Rosie Tong (and the anonymous reviewers for the
Press), who made many useful suggestions. I would also like to thank
Beatrice Rehl, my editor, and all the production team at Cambridge. My
family read and commented on my stories. Their comments improved the
final product. Then there is my research team at Marymount: Tanya Lanuzo
and Lynn McLaughlin, who assisted me in the monumental job of getting the
best articles and books for my discussions. As always, I thank my wife,
Rebecca, and my children for their intellectual acumen and loving support.
None of this would happen without them.
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Part One Conceptualizing Human
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“The Spotted Butterfly”
Life is about suffering,
Hang on until it’s over.
– Michael Boylan, “Existence 22/7”
It was almost three weeks since the end of the long rainy season. The ground
was drinking in the water from the rains. In a small village, Gimbaya N’kufo
was doing chores with her daughter, Mangeni. They were going down to the
river to wash their clothes. Many people in the village criticized Gimbaya
because she did her own washing. They said that the wife of the village chief
should have someone else wash the clothes. But Gimbaya was a strong
woman. Though slight in height, she had broad shoulders and had developed
endurance because of her willingness to work.
It was important to wash clothes early in the day while the locusts were
still singing their songs before the water went bad. People got sick when they
washed their clothes later in the day. Gimbaya was able to wake up with the
sun and do her duty. When she returned she prepared a meal and then
attended to the education of her two children.
Life was good. Adaon, her husband, was a tolerant man and rarely beat her.
He spent his days attending to people’s complaints. It was not an easy task to
be a village chief. Gimbaya was generally popular with the village women
despite her meek demeanor. Some said she did not deport herself with
sufficient pride for a woman of her station. On this day, after she had worked
with her own children, a young unmarried woman in the village named
Makemba Youlou came over to greet Gimbaya. “Makemba how is it with
you today?”
“It goes okay. But I feel strange like I feel near the beginning of the long
Gimbaya went up to Makemba and placed her large hands on the young
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woman’s shoulders. Makemba was short and slender. Her skin was a little
more fair than was the norm in the village (some people said she had Tutsi
blood in her). She wore her hair very short. Gimbaya gave the younger
woman a squeeze with her hands that evoked a smile. “Why don’t we sit
down under that tree over there and I’ll tell you a funny story about what
Mangeni said to me not more than a few minutes ago?”
Makemba agreed and so they sat down together. A large spotted butterfly
hovered overhead for moment displaying its daring pink patches of color
against its black body. And Gimbaya began, “Well, Mangeni began her
dream as if she were a fish!” Makemba laughed because ‘mangeni’ means
‘fish.’ “Well, Mangeni was swimming with her friends when she sees the
shadow of a man wading. The man was carrying a spear” – at that moment
Gimbaya was interrupted by the sound of gunfire. Four men (not of the
village) had burst onto the scene. Gimbaya and Makemba scrambled to their
feet. The men were large, stocky, and very dark skinned. They were also
carrying machine guns.
Quickly they stormed to the center of the village. “Come on, we have to
find Mangeni and Bonyeme.” The two women tried to retreat into the trees in
a looping motion toward Gimbaya’s home. They didn’t need to go far before
Gimbaya saw her children. They cried, “Mommy!” Gimbaya tried to gesture
to them to be silent, but it was too late. The attention of one of the gunmen
was drawn their way. He was a young man not many years older than
Makemba. As he approached Gimbaya could detect a deep scar under his left
“Don’t you move!” The accent was unmistakable: Hutu. “You, come over
here.” He was talking to Makemba. The young girl clung to Gimbaya who
was holding her with her left arm. (Gimbaya’s right arm was protecting her
“Are you deaf? Get over here.” Makemba was shivering with fright.
Gimbaya’s strong, large hands maintained their grasp. Gimbaya’s attention
was all on Scarface, so she didn’t see that the entire village was lingering just
out of view (including Gimbaya’s husband, Adaon). The other three men
were fanned out so that no one could come up to them from behind.
“Why have you come here?” asked Gimbaya in a strong, clear voice.
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Scarface lifted his gun to the sky and discharged three rapid-fire rounds.
“We’re roaming about with a small army. Anyone who gets in our way will
die. Do you want to get in our way?”
“Do you want food? We can give you some food and then you can be on
your way. We want no fuss. We will give you what you want,” Gimbaya’s
voice remained strong, but her tight grip on Makemba and on her children
was causing the muscles in her arm to quiver. It was beyond her control.
“We want that Tutsi girl.”
“She’s not Tutsi. She lives here. She was born here.”
“She’s Tutsi, bitch. Now you hand her over.” Scarface was approaching
“We’ll give you food. We’ll give you francs. Please, just don’t hurt us.”
Then Scarface lifted up his gun stock and knocked Gimbaya to the ground
with a fierce blow to the side of her head. The village chief’s wife tumbled to
the ground. Her head was bleeding. Her children were crying and climbing
onto her. The rest of the villagers watched behind trees. Adaon N’kufo, the
village chief, began inching backward for his escape.
Scarface then ordered Makemba to the center of the common area. It was
then, in front of everyone, that the stockiest of the group stripped and raped
Makemba. But that wasn’t all. Gimbaya was next. They picked up the dizzy
woman and separated her from her children. As they stripped off her clothes,
Makemba arose to try to help her friend.
Makemba was met with ten bullets to her face. She fell backward into the
It was the middle of the night when Gimbaya found the road north. If
nothing else worked, she’d try to walk to Uganda and her uncle Akiki. It was
hard to walk. She was so very sore. But her children needed her. She hadn’t
eaten since morning. As the physical shock began to wear off, she strove to
concentrate her thoughts. It didn’t work. She had to keep moving until her
legs would take her no further. Then Gimbaya and her two children lay down
by the edge of the Kivu Lake, took a drink, and held each other for dear life.
The next morning Gimbaya awoke as a praying mantis was walking over
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her face. Her body ached. Her mind wouldn’t go into its normal mode. She
wasn’t herself. But she had her two children. She knew the road led north so
they got themselves up, drank some water, and kept their eyes out for some
plants to eat. By the time the sun was high they had consumed several minimeals.
Around mid-afternoon they met another woman on the main road north.
She was coming from the west. Her name was Nabutungi Tsiba and she had a
daughter, Abbo, who was about the same age as Gimbaya’s own daughter,
Mangeni. “Where are you going?” asked Gimbaya.
“To Goma at the north end of the lake; they have a place there for women
like us.”
Gimbaya didn’t respond. But her memory was suddenly stimulated. She
remembered her husband, the village chief, banishing her and her children
from their home because she had become unclean. Adaon spoke with the
authority of a mighty judge. There was only time to pick up a few things and
put them in a blanket and be on their way. They had reached the main road by
“And what is this place like?” asked Gimbaya.
“They will take care of us: give us medical treatment, a new name, and a
new life.”
“I have a new name. The one I was born with, Uwakweh.”
“That’s a beautiful name,” said Nabutungi.
Gimbaya smiled for the first time since she left her village. She reached out
for the hand of Nabutungi. As she did so she saw that Mangeni and Abbo
were also showing signs of friendship as they talked and patted the head of
the younger Bonyeme.
It was a long walk. They had access to water in the lake and they ate plants
(which were bountiful since the long rainy season had just recently ended).
After a week, they made it to Goma. This would be a little difficult. Goma
was so much bigger than anything they had ever experienced. It was the
largest town in North Kivu.
“Excusez-moi, si vous voulez? Où est la maison des femmes?” asked
Nabutungi. Gimbaya didn’t speak French well. It was not spoken in her
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village. But she had learned a little when she was young and had visited her
aunt for a year in Kindu. She felt fortunate that she had a sojourner who
spoke the lingua franca.
The question had been posed to a rather rotund elderly lady who wore
fancy blue-patterned clothes and a matching head scarf. The woman had
smiled at them when they approached each other on the street, but after the
question, her face became blank. All she did was point to the left. Then she
hurried away.
After meandering for a while, they saw the ruins of a building. It had been
a two-story wood-frame building. As they approached they saw a sign face
down on the ground. Gimbaya picked it up. With the help of Nabutungi they
discovered that the rubble was what was left of the women’s center.
Nabutungi hugged Gimbaya and they broke into tears. The children looked
up at their mothers and also hugged each other and began to cry.
Then a very old lady with wrinkled skin, a wide mouth, and very thin lips
approached them from across the street. “I seen you and been following you
since Mrs. Big-stuff insulted you back there.” The woman spoke in the local
“We have walked a long way, grandmother,” began Gimbaya.
“I know you have. I still have eyes in this old skull of mine. And I have
seen many other women, like yourselves, come here for help. The trouble
started when certain men folk heard about the wonderful good that they were
doing here. It was run by a young woman whose father was a retired college
teacher. They lived at the end of town.” The old woman’s wide mouth
dripped saliva on the right side as she talked. As the saliva began to drip to
the ground she would pause and wipe it away with her left hand. “It wasn’t
those Hutus who are scourging our villages, but Congolese men themselves:
the husbands and fathers of the victims.” The old lady was speaking with
strong emotion that caused her to cough. “Can you believe it? Their own kin:
they despoil them again!” This time the coughing spasm required Gimbaya
and Nabutungi to help the woman sit down on some rubble that looked
secure. The children found a resting place close by. The women rubbed the
old lady’s back until she felt balanced. Then the old lady began again, “They
came two weeks ago. They had bombs with them and they struck when the
sun was high. They bombed the shelter and they also bombed the house. It
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was lucky that it was at mid-day because that’s when all the women go down
to the river to do their laundry. It was lucky that they did it in that order,
because the sound of the bomb at the vacant shelter caused the college
teacher to search after his daughter for their escape. He came and told the
women what had happened and the group of them picked up their laundry
and started walking.”
“Where did they go?” asked Gimbaya.
“To Uganda – where else?”
“Yes – especially in the west near us. So many have traveled there.”
The women thanked the old lady and offered to walk her home. Then the
two mothers returned to gaze upon the wreckage of the women’s shelter.
Neither of them spoke. They were deaf to their own children playing. The
two women in their long dresses stood tall; around them the children ran as if
they were trees in a forest. Not a tear was shed, but the women both knew
what they must do.
“We will walk to Kasese. My uncle told me that it sits on a grand lake –
not as large as Kivu – but a calming spirit nonetheless. Akiki will take you
and your daughter in and find a place for you. He is a good man.”
Nabutungi gazed at her newfound sister and smiled. Then she picked up
her load, and gathered the children. It was then that the women with
wandering step and slow toward Uganda took their solitary way.
This story is based on an interview I had with Sylvie Mugambe, a human
rights worker from the Democratic Republic of the Congo, April 2009.
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1 How Do We Talk about Human Rights?
Open the newspaper: how many times do you see the word “right” or “human
right”? I tried this recently and found the word used in many different
contexts from talking about politics and policy, to the activities of large
corporations, to popular uprisings in the Middle East, to dissidents in China,
to welfare economics, to affirmative action, to corporations as people, and
even to youth sports uniforms: this in just one daily paper.
1.1 Common Usage
Clearly we use the terms right, rights, human rights, and natural human
rights in many different ways. One touchstone on English linguistic usage is
the Oxford English Dictionary1 that cites the usage of a word historically.
When we look at the word “right” we find the same divergence that we saw
in the newspaper:
1. A standard of conduct
2. A duty
3. To which is consonant with justice and goodness or reason –
something morally or socially correct, just or honorable
4. Equitable treatment
5. The cause of that which is fair or morally correct
6. A judicial decision
7. Legal entitlement or justifiable claim (on legal or moral grounds)
8. An entitlement considered to arise through natural justice
9. Something that a person may properly claim
10. Political, civil, or liberties
11. Miscellaneous usages: map making, the Christian Service (rite),
shoes, hunting, etc.
For the purposes of this book there will be aspects of 1–10 that will be set
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out in different ways. This is what it means to offer stipulative definition.
However, there must be grounds for the stipulation. Otherwise we enter the
realm of fantasy.
What we can see from the OED is that contained within rights language
are the following: (a) a claim to some good; (b) the claim must be justified;
(c) the grounds of the justification are either legal or moral; (d) the claim is so
strong as to be an entitlement; (e) the entitlement claim is sometimes
connected to natural justice; (f) the entitlement claim is fair and equitable; (g)
rights are associated with duties.
These seven markers set out the way that ‘right’ (including but not limited
to human rights) has been used in the English language from the earliest
Anglo-Saxon documents onward. In the next two chapters this search will be
expanded to include various historical usages of human rights and natural
human rights along with allied concepts such as natural law. This exploration
will also include some analysis of allied ontological tenets (as per the word
1.2 Wesley Hohfeld
So what’s so special about human rights? Wesley Hohfeld set these in
context in Figure 1.1.2 These fundamental opposites and correlatives set the
context of Hohfeld’s insightful analysis. When we think of the opposites, we
envision different worldview perspectives. People come at life from different
vantage points. These drive a conception of the social playing field where
people live and carry out their lives. In the second category, correlatives, we
have something like a Hegelian dialectic in which the conception of one side
logically implies the conception of the other. The correlatives are tied
together conceptually in a way that the opposites are not.
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Figure 1.1. Hohfeld’s Depiction of Rights in Context
To get a handle on this in the context of this book, let’s start with the
notion of a claim. There are at least two senses of a claim: (a) a demand by
some agent for some good; and (b) a demand that could be made on behalf of
some agent whether that agent asked for it or not. For example, a baby might
have the claim right to nourishment in order to stay alive, but because the
baby is pre-speech, he or she cannot enunciate the claim to anyone. Sure, the
baby can cry. A cry means many things. It isn’t specific. At least a crying
baby declares to all in earshot that he or she is in need of something. If one
were to be committed to (a), then he would be forced to say that there is no
claim by the agent. And if (a) were the only way a claim right could be
obtained, then the child has no claim right to whatever she was crying for:
food, milk, change of diaper, or just to be held. However, by bringing (b) into
the picture the focus moves away from what this child before me wants from
her point of view, but rather what this child can legitimately claim in the
context of what children, in general, would reasonably want. From this, it is
the duty of the caregiver to ascertain whether the child needs food, milk,
change of diaper, or just to be held. The (b) position operates from the
generic point of view first and then particularizes the description to the
individual at hand via a process that I have called dialectical subsumption.3
In dialectical subsumption one begins with an individual and then goes back
and forth between various generic categories in Hegelian fashion to
determine just what category best fits the individual at hand. The process is
very much like biological taxonomy.4 In taxonomy, since there are no
“perfect” cases, one must go back and forth with the specimen and insert
boundary conditions to properly classify it. In the case of the laboratory, this
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can be time-consuming. Now in the case of a baby, decisions must be made
in a very short interval. Nonetheless, this is what I assert happens: one has in
his mind what babies need and then checks on whether one of these factors is
what this baby needs. When one hypothesis proves correct, then action is
This may seem rather artificial and long-winded to those who (like myself)
have cared for infants. But I believe this is really the logical structure of how
we recognize and respond to one sort of claims right.
Then there is the case of someone who is resigned to a sort of life and
doesn’t think much about it. For example, until 1920 in the United States
women couldn’t vote. I would conjecture that most women from the founding
of the republic to the turn of the twentieth century were so engaged in their
social roles that they didn’t really think too much about whether they should
vote.5 Thus, these women didn’t offer a claim in the sense of (a) listed
previously. If a claim right is only to be understood as a claim in sense (a),
then these women were not claiming a right to vote. Now, of course, after the
turn of the century as the alliance with the temperance movement became
popular, more and more women began claiming the right to vote.6 This
culminated in the Nineteenth Amendment to the United States Constitution in
August 18, 1920. If a claims right is to be understood only via (a), then
women in the United States had a right to vote only on August 18, 1920.
However, under the (b) interpretation of a claims right, the situation is
rather different. Under the (b) position, a right may be claimed on behalf of
some agent whether that agent asked for it or not. Thus, from the beginning
of the republic onward someone who examined the question, “who should be
allowed to vote in a democracy?” could examine relevant criteria (such as
minimum cognitive ability to support voluntary action) and form a judgment
via dialectical subsumption that women are properly subsumed into the
category of those persons within a society who should have a right to vote.
This conclusion does not depend upon any actual person crying out (as the
baby did) for something. Even if everyone is silent, women still have a moral
claims right to vote in a democracy from day one of the republic.
If the right is not recognized, then that says something against the republic.
But how could women possess a right that they have not asserted? Many ask
this question. It is a crucial question for those asserting natural human rights
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as opposed to conventional human rights. Those who advocate natural human
rights believe that to speak of a claims right means simply that a right can be
attributed to someone on the basis of his or her membership in Homo sapiens.
As members of a species with certain characteristics, various rights can be
independently attributed to everyone on the planet atemporally.
Conventionalists, in contrast, will assert that rights become operational only
when they are recognized by some political body: family, community, state,
or some international agreement. This will be an important tension in this
book: natural rights advocates versus conventional rights advocates (see Part
A second notion of human rights relates to rights that are conferred to an
individual in virtue of her particular social role. For example, in the United
States, a governor of a state has the right to commute a prison sentence that
has been given by the court. This sort of human right has been deemed by
Wesley Hohfeld a power.7 A power is a conventional right that attaches to
either one’s political or social station.
Rights that attach to one’s social station were the only sort of right to
which John Austin assented.8 Indeed, since Jeremy Bentham declared human
rights to be nonsense on stilts there was little interest among many
nineteenth-century utilitarians in stand-alone human rights. This follows from
the very formulation of moral duty under act utilitarianism as following the
utilitarian formula. Every constructed, recognized right was provisional as
such right flowed from social conditions of the present and could change as
conditions changed.9
Hohfeld’s third category is liberty rights.10 Liberty rights are those rights
that a person possesses naturally to act as he pleases ceteris paribus. Thus if
person A is walking with person B and they see a five dollar bill on the
ground five feet in front of them (and there is no obvious owner to the bill),
then both A and B are at liberty to walk over and pick it up or even to dive
forward to claim the prize. The latter behavior is rather aggressive, but
nonetheless it is permitted under a liberty right. A liberty right is not a
conventional right but a natural right.
Finally, there are immunities and disabilities.11 Immunities and disabilities
(“no power”) are correlatives. An immunity is a freedom from the legal
power or control of another regarding a legal relation. This is often achieved
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by shifting the legal responsibility to another party. If this cannot be done and
one is subject to real harm, then said victim can be described as being under a
disability (lack of power to shift the harm elsewhere). These are descriptive—
therefore, conventional.
Of these four categories of rights, the primary concern of this book is
claims rights. Liberty rights will be subsumed under an understanding of
claims rights, and powers and immunities and disabilities will be relegated to
the realm of institutions and their separate operation.
1.3 Human Rights and Common Language Claims
for Justice
“You can’t do that. I’ve got a right!” This is a common claim. I have heard
this refrain throughout my life. For example, when I used to volunteer at food
kitchens for the poor, patrons would complain when the food was gone. We
knew how much food we had to give. Tickets were made with numbers on
them. After the numbers were exhausted we would tell the others lined up
that there might be something left over, but we couldn’t promise. We
generally had about three hundred tickets and there would be fifty or so who
would hang on in case there would be more food. Sometimes we would have
enough extra slices of bread and gravy and some assorted carrot tops and
other edible bits that we invited a few more in to finish what we had. But
there was often resentment in this latter group. “Why don’t we get the entire
meal like the rest of them?” “Why do you promote women with children?
Don’t you know that some of these gals just find some kid so that they can
move to the front of the line?” “I served my country in Vietnam and this is
how they treat me: bread and gravy?” “Why can’t we get a decent meal?”
Then I saw the thirty or so stragglers who walked away without even the
bread and gravy. It’s a tough life. When I was confronted openly about some
good they wanted (in this case food), I was put on the spot to come up with a
reply. Frankly, I didn’t have a good answer. When someone makes an overt
request (verbal or written) for some good, then we will call this a type-a
claim for some desired good. The claim is open and made publicly. In this
case the claim was for food. The reason I had no good response to their overt
request is that here we are in the richest country on earth and we can’t even
feed everyone? And then I thought about the fight that Mitch Snyder (Center
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for Creative Non-Violence) had with then President Reagan to lift the
classified ban on the White House food refuse. All the good leftovers from
presidential banquets and everyday meals would just rot away and be made
into fertilizer when it could go to help those thirty who just had to walk away.
Public pressure made the president rethink his position: that the White House
garbage should be classified in the same manner that nuclear war secrets were
classified. How would the USSR use this garbage to take over our country?
This is one sort of common language claim about the human right to eat.
Then there is another sort of human right claim that gets implicitly
expressed by those who are often marginalized in the process: children. The
House of Ruth is a nonprofit charity that has as its mission the protection of
women and children in situations of domestic violence. My wife and I have
done some volunteer work at the House of Ruth in the past. The clients we
saw were the children. Women came to the center because they had been
abused by their husbands. The husbands may also have abused the children or
sometimes the mothers had hurt them, themselves on a “violence down the
food chain” mentality. The strongest hurts the second strongest who, in turn,
hurts the third strongest. From my personal experience these were examples
of silent rights claims (type-b). I didn’t hear any of the language associated
with these claims in the food kitchens. All I saw were grim, defeated faces.
Type-b claims are not publicly enunciated by those in need, but can be
logically deduced by their situation.
Most of the time, according to statistics on this, the women return to the
men who beat them because they believe the line that tells them “you’re no
good; your only chance is if you stick with me.”12 These women and children
do not enunciate that they have a right not to be beaten by their husbands.
There are no strident exhortations of what they deserve, only the grim
resignation to a fate of constant pain. In the common parlance this is still a
muddied picture. Many consider the bedroom to be a private space that
should not be violated by any outsider. From the beginning of our republic,
there has been a tacit understanding that it’s not so bad to beat your wife
occasionally. The so-called rule of thumb allowed a man to beat his wife with
a stick no thicker than his thumb.13 Such shared community worldviews as
this have not been uncommon in the history of humankind. This is another
sort of common language claim: protection from unwarranted bodily harm.
Another kind of good that people may claim (either type-a or type-b) is
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about liberty. Liberty is generally thought about in a positive and in a
negative sense. In the positive sense A has liberty to do x just in case it is
within the physical capability of A to do x. Mary has the liberty to walk up
the stairs if her leg muscles, spine, and other somatic systems are working
normally. We are constrained in our positive liberty by the characteristics
given to us phylogenetically through our evolution to Homo sapiens. For
example, as a human I cannot fly as a bird flies. We are not equipped to fly
naturally as birds do. As such, we are constrained in positive liberty on how
we come into the world (within some range due to effort or development).14
A second understanding of liberty is negative liberty. These are exterior
constraints upon our ability to perform what we are positively capable of
doing. For example, Mary may have the positive liberty to walk upstairs, but
if there is a gunman at the top of the stairs pointing a rifle at her and telling
her to turn around and go away or he will kill her, then despite Mary’s
positive liberty for climbing stairs, she is constrained by negative liberty from
climbing the stairs.
In the odd case when there is an impediment against doing something that
is already impossible to do – such as flying – then the positive analysis of
liberty should trump the negative sense. For example, Jemal is standing on
the green flapping his arms and a gunman comes up and asks him what he is
doing, and Jemal says, “I’m going to fly into the air.” The gunman then says,
“If you leave the ground and fly into the air, then I will shoot you down much
as I do ducks.” Because Jemal will never leave the ground, the threat will
never be actualized. In this way, positive liberty analysis should always
precede negative liberty analysis.
Those who seek to use negative liberty to limit our potential agency
generally fall into two groups: (a) protection against the state or large
corporations; and (b) protection against interference by particular individuals
concerning expression of actions in which we wish to engage. In the first
instance, one’s liberty to do such and such can be impeded by the actions of
an overly restrictive government or large corporations. Governments often try
to restrict the liberty to express oneself (cf. Adagio: “Double Talk” in Part
Two of this volume). They feel threatened by the free flow of information.
For example, at the writing of this book, officials in Iran are trying to control
the Internet so that they might protect themselves from the free flow of
information that has characterized the “Arab Spring–2011.”15 Governmental
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interference in prospective agency is perhaps the greatest instance of negative
liberty in the world today. Most would declare these rights violations as
unjust and thus unacceptable.
Large corporations can also present problems in the (a) group. For
example, Facebook and Google are large corporations that gather a
tremendous amount of information on us (we are not fully aware of much of
what they collect). The way these corporations do this is by gathering
enormous amounts of data on our behavior and then sharing this information
with others with the intent of influencing our future conduct.16 In the case of
Facebook and Google, the point is about making money. If I discuss in an email that I would like to travel to Germany, then when I go onto a social
networking site or on my web browser I start finding ads about trips to
Many would say that for Google or Facebook to insert this information is
innocuous enough and that users are free to purchase the products in the ads
or not. Others see a darker problem – the many mistakes that arise in raw data
mining.17 A friend of mine, for example, gave a talk at Chico State
University in California. On the university’s website there was an
advertisement of this philosopher’s talk. However, on the next page of the
university website was some description of Osama bin Laden (the
mastermind of the 9-11-2001 tragedy). The data mining program that the
Department of Homeland Security used linked the two together so that at the
airport for his plane ride back my friend was detained for over two hours
(making him miss his flight). He was also advised to hire a firm to clean up
his online reputation if he ever wanted to fly outside the country and get back
again. Mistakes such as this can cause people to lose their jobs or not to be
hired or to be denied mortgage loans or any number of other difficulties.
Most would declare these outcomes to be unjust.
Another sort of big business negative liberty that I know about firsthand
concerns a trend in auto insurance to place GPS devices in all cars and to
base auto insurance rates on actual mileage driven and whether one drives
during rush hour (more accidents). The intent of this is positive: to encourage
less automobile driving and thus help clean up the atmosphere. However,
when I was serving on a U.S. Department of Transportation expert panel on
this issue, we also explored possible side effects of all this newly acquired
knowledge. For example, what if a married Mr. X wanted to meet his lover?
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In the divorce hearings, the GPS device would provide evidence of his being
a philanderer. Some might say, hooray! Justice is done.
But once again, in the possibility of mistakes, the GPS might show an
innocent person having been near to where a robbery or other crime was
committed. This concomitant of location does not prove culpability. But with
the GPS record, one might be judged guilty until proven innocent.
How might we constrain our action in the world if we thought that such
mistaken factual data might be used against us because the context in such
situations was limited by the technology? A GPS device does not say why
someone was in a particular part of town, and a cyber-cookie does not
disclose what one was doing, and data mining can put disparate data together
and create a false positive. Most would declare the resultant situation unjust.
All of these are instances of negative liberty that are relevant to discussions
on natural human rights.
The penultimate example in this category of common language discourse
on justice and human rights concerns what happens in conditions of natural
disaster. Michael Sandel cites a case that occurred during Hurricane Charley
that roared through Florida in the summer of 2004.18 Gas station owners were
selling a two-dollar bag of ice for ten dollars, and stores that normally sold
gas-powered generators for $250 were now selling them for $2,000. Sandel
quotes Charlie Crist, the attorney general for Florida, as saying, “It is
astounding to me, the level of greed that someone must have in their soul to
be willing to take advantage of someone suffering in the wake of a
This is a very good example of the common language relationship between
justice and human rights. Many people are upset by the behavior of
profiteering that is displayed in this example and others like it. They assert
that when people are in a crisis mode, everyone should pull together, as a
team effort, to try to get everyone the basics of life. For these people, the
disadvantaged have some sort of right to whatever is minimally necessary to
stay alive and the basis of such a claim lies in some sort of understanding of
distributive justice.
Others see things rather differently. They would contend that in the United
States we live in a largely capitalist economic system that is controlled by
supply and demand. Whenever there is a spike in demand, those who are in
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the position to control the supply of the goods in question should be entitled
to reap the rewards of the historical situation. This is a sort of Darwinian
event in which the state of nature differentially rewards some parties at the
expense of others. It’s just the facts, ma’am.
There is real difference of opinion among many regular people on this
question. What is not in dispute is that the situation highlights problems in
rights and justice claims. This vacuum longs for some sort of justifiable
practical response.
Finally, there is the case of the securities debacle of 2008. Investment
banks and insurance companies created exotic investment instruments that
were not financially sound. When the real estate market took a severe
downturn, these highly leveraged products tanked and the so-called insurance
edge on the derivative could not cover the exposure and the entire financial
system of the G-8 nations (the eight most significant world economies:
United States, United Kingdom, France, Germany, Italy, Japan, Canada,
Russia) tilted toward collapse. This created the worst recession in the United
States since the Great Depression of the 1930s. High unemployment and a
national mortgage crisis resulted. People were angry. Some of the ways they
expressed their anger had to do with their perception of human rights. They
thought that when they bought stock through Bear Stearns their investments
were safe. They felt that they had a right to a safe investment. Likewise,
when they bought an insurance policy from AIG they felt they had a right to a
secure company that was solvent and that they would be safe. They felt that
this was a right. They didn’t deserve to have their future at risk in what they
thought was a highly regulated industry.
As it turned out, most of the panic in investments abated. Bear Stearns did
go down, but not Goldman Sachs. AIG was bailed out by the U.S. federal
government. However, there was great anger at the financial services industry
that was perceived to have created the crisis through pressing the boundary
between aggressive risk taking and fiduciary impropriety with other people’s
money. The highly compensated individuals heading this industry were
excoriated by much of the U.S. public. Their greed created an unjust
consequence that put in jeopardy what most people felt was their own right to
invest in an honest, regulated market.
These are just samples of common usages of human rights and how they
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overlap with talk of justice.
1.4 Rights and Duties
The relationship between rights and duties is integral to discussing natural
human rights. All rights claims are against someone or some group.19 They
are about a claim to some sort of good. The claim must be supported by an
authoritative source – either a law or an existing institution that is itself in
accord with the dictates of morality and justice.
Duties are responses to rights claims. The relationship between is tight
correlation. All valid rights claims entail duties and vice versa. For purposes
of clarification, I consider a rights claim either a claim that is made by some
individual x or (more commonly) a claim that could be made by any x that is
properly quantified. For example, a woman Laura might claim that as a
citizen of the United States, for example in 1915, she had a right to vote that
was not being recognized. This is an example of the first sort of claiming.
The more interesting second sort of claiming is that any woman in a
democracy on earth either now or in the past or future has a right to vote
whether she claims it or not. This sort of claim is an attributed claim based on
the proposition: ∀x {(Px => Vx) ^ (∀y) (Wy => y = x)}. This translated
means that for any x if x is a person, then x has a right to vote and that for
any y if y is a woman, then that woman counts as a person, ergo, has a right
to vote. If this analysis of a “claim” is correct, then it occurs at the group
level – in the case of biological organisms, this means the species. The
claiming is really a matter of discovering not unlike the sort of discovering
that occurs in science. It would be odd to suggest that the equation “force
equals mass times acceleration (f = ma)” was a claim that Newton just
claimed for himself as the second law of motion.20 Au contraire! He thought
that he had discovered a truth about nature that really was. In the terms of
modern philosophical epistemology it was asserted to be a realistic discovery
about an independent realistic truth.21 It is externalist and subject to
intersubjective verification or falsification.22 This is an important distinction
in evaluating Newton, Einstein, or other key figures in the history of natural
philosophy. I believe that the claiming function operates in the same way.
Human rights claims (whether anyone actually claims them, type-a or not,
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type-b) are capable of being attributed to groups on the basis of externalist
criteria. This second sense of claiming (which I think is the primary sense for
the justification of human rights) would make human rights both real and
natural. More on this later.
Let’s return to the subject of the correlative nature of rights and duties.
First, there is a reciprocal relationship between duties and rights.23 This
relationship can be explained by the following sentence:24
I: “X has a Right against Y to Z in Virtue of P.”
‘X’ is a person(s) and ‘Y’ is a person(s) and Z is a good (such as the liberty to
vote, or to have adequate health care, or to maintain ownership of the
automobile that is titled under your name, or to be able to purchase a new
consumer product) and P is a legitimating moral institution (in the sense of
the second sort of claim, described earlier).
This rights claim implies a correlative duty:
II: “Y has a Duty to provide X with Z in Virtue of P.”
Let’s consider a thought experiment and see how I and II might be used to
formulate a solution.
Thought Experiment 1.1
Charles Rudd is an African American living in the southern United
States in the 1950s. His particular state has a poll tax one must pay and
also a literacy test one must pass in order to vote. In the literacy test the
applicant must demonstrate competence with complicated legal concepts
often reserved for law schools. Another favorite as a literacy test was to
ask an applicant, “How many bubbles are there in a bar of soap?” Of
course, any answer given would be deemed incorrect (because there is
no correct answer). The reasons for these two types of requirements are
that the citizens of that state want to be sure that (in the spirit of the
American Constitution) those voting are “properly qualified” to vote
(really meaning they are (a) financially sound and (b) the right sort of
people – racial, religious, gender, sexual orientation, etc.). Are these two
requirements reasonable for the stated needs? Is there any other agenda?
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Do the sponsors of this sort of legislation fully understand their motives?
Thought Experiment 1.1 requires that we consider just what is intended in the
legitimating institution. It is true that the Constitution of the United States as
originally written did restrict voting to land-owning males. However, if one
believes that the U.S. Constitution is an evolving document that can be
amended and interpreted by the Supreme Court, then the sense is to open
things up via the Thirteenth Amendment outlawing slavery; the Fourteenth
Amendment assuring equal protection of rights to all under the law; the
Fifteenth Amendment that directly addresses the rights of African Americans
as being upheld; and the Nineteenth Amendment that extends the right to
vote to women. Clearly, the intent of these amendments (as interpreted by the
Supreme Court) is to confer the privilege of voting to all citizens regardless
of race or gender. If we understand the Constitution in this way, then we can
assert that the import of I and II stated earlier is to say, “John or Kinshasa
Doe has a right to vote against the Citizens of the United States in virtue of
the Constitution of the United States and the Moral Principles upon which it
stands.” Now assume that Kinshasa Doe is an African American in a southern
state in the 1950s where there were poll taxes and literacy tests that were
given only to African Americans with the effect of denying these individuals
their opportunity to vote.
The correlative duty statement would read: “The Citizens of the United
States have a duty to provide John or Kinshasa Doe his or her voting
privileges in virtue of the Constitution of the United States and the Moral
Principles upon which it stands.”
The Voting Rights Act of 1965 might be considered a moral response to
this question. A law was passed that created safeguards against spurious
devices (such as poll taxes and various “citizenship/civics” tests that served
to deny universal suffrage).
Thought Experiment 1.2
Lavinnia Jones is an African American living in Solace Senior Care
Nursing home. Her son LeRoy is a mechanic at a small gas station.
Lavinnia’s social security (and some Medicaid) pays for her living at the
nursing home. She has only a couple of dollars a month for spending
money. LeRoy and his wife earn a thousand dollars over the poverty
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level. They live in a trailer with their two children. The Joneses have
always taken civic pride in voting in national, state, and local elections.
However, in their state there is a new voter ID law (identification law).
To get such an ID a person needs to present a birth certificate and a
proof of current address (such as mail received). To get a duplicate birth
certificate costs $50 and to get the state ID costs another $25. Lavinnia
would need about three years to accumulate this amount. LeRoy and his
family struggle each month to pay bills. They don’t go to movies. They
don’t buy alcohol. They just try to stay afloat. Neither Lavinnia nor her
son’s family will be able to vote under the new state voter ID law. It
should also be noted that in the state where the Jones family lives there
has never been a single documented case of voter fraud (people voting
who were not citizens, or dead people voting, etc.). How is this case
similar to and different from Thought Experiment 1.1? What rights and
duties obtain?
At the time this book is being written, there is considerable debate on this
question in the United States. Some claim that the two thought experiments
are relevantly similar as to rights claims and duties while others point to the
increasing requirements for documentation in society. For example, one
person recently wrote to a newspaper saying that you have to have a passport
to fly to Europe so why not have simple photo ID to vote? Others would
reply that the Jones family would never have the money to fly anywhere –
much less to Europe. Without the money for a car or a driver’s license, their
life expenditures are rather more modest. (A treat for this family might be a
grocery store special on ice cream that suddenly makes it affordable. Even in
the United States of America, the richest country on earth, there are millions
like the Jones family who are one disaster away from homelessness.)
The former group would reply that one must show photo ID in the United
States to buy cigarettes or alcohol. Why not treat voting on the same level?
The reply would be that the Jones family doesn’t smoke or drink and besides
those photo ID laws are only applied (if ever) when the potential purchaser
seems to be under age. Few people over the age of twenty-five are ever
carded. There is a large class of people in the United States who have no
“official government issued ID” nor do they have the need for one in their
lives. In a study group at the Center for American Progress where I was a
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policy fellow between 2007 and 2009, the speculation was that virtually the
entire lowest quintile of wage earners fit into this category. They are too poor
to own a car and have no practical need for a photo ID: it’s a luxury they
cannot afford. If this demographic conjecture is correct, it would characterize
around 60 million people – more than enough to make a significant electoral
difference were their numbers largely suppressed in an election.
There are other examples of possible claims rights that are debated – such
as the right to adequate health care. Can we say “John or Kinshasa Doe has
the right to adequate health care against the Citizens of the United States of
America in virtue of natural Moral Principles”? I have written in the past on
this subject25 suggesting that the answer is “yes,” but it has been obvious that
in the United States (at the writing of this book) this is a controversial
However, it is clear that the two examples given are of a different type
from those that describe less essential goods, such as an automobile or a
cellular phone. Can we say in the same way (as we did with voting rights)
that “John Doe has a right to an automobile against the Citizens of the United
States in virtue of a natural Moral Principle”? or “John Doe has a right to a
cellular telephone against the Citizens of the United States in virtue of a
natural Moral Right?” or “John Doe has a right to his own swimming pool
against the Citizens of the United states in virtue of a natural Moral Right?”
Certainly not. The type of good involved is different in kind.
At least we have established that rights, duties, and types of goods are
related. What still needs to be explored is whether such rights claims follow
from natural as opposed to merely conventional reasons.
A second issue is the question of recognition of rights/duties. Some authors
such as H. L. A. Hart and John Austin have emphasized an examination of
legal statutes and the general literature of the period as a way of addressing
this issue.26 They contend that without actual words for “right” or “duty” that
are employed in the literature or legal statutes, there is no operational concept
of ‘right’ or ‘duty.’27 If there is no “operational” right or duty, then the
concept does not exist and it is not a legitimate category by which to judge
societal/individual conduct.
Such arguments have also been made about Chinese culture in recent
times.28 The claim is that because there has never been a recognized tradition
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of human rights observance in China, then the individuals in China have no
moral claim to such. This is based on the proposition that only publicly
recognized rights are valid. This sort of claim asserts that the legitimatizing
institution for human rights is a descriptive public agreement. Such a claim
might fit very well within the contractarian approach or within the
emotive/ethical intuitionist linguistic approach that sees ethics as a project of
description. This sort of argument contends (quasi-operationally) that (a) if
the literature and law statutes of the time (such as we have it) in some wellrecognized society would support a duties/rights analysis, then such an
attribution is appropriate; and (b) if the actions of the people would support a
duties/rights analysis, then such an attribution is appropriate.29 But beyond
such sociological or linguistic analysis there are no natural rights that belong
to people, as such.
1.5 Bearing Duties
The last sort of conceptual issue to be explored in this initial chapter centers
around those who want to examine the duty bearers: those who bear the
duties in the correlative rights-duties formula set out previously. If “Y has a
duty to provide X with Z in virtue of P,” then one might profitably ask, “Who
is Y, anyway?” In our voting rights examples it was “the people of the United
States” or the citizens of a particular state (which sets particular voting
regulations – subject to the 1965 Voting Rights Act that put certain states on
a long probationary period for violating the duty to the nation as a whole).
When the issue is legalistically framed, those states that have had a long
history of violating the Fourteenth Amendment concerning voting ceded their
absolute state sovereignty to the federal government. The federal government
through the arm of the Justice Department took on the oversight role for
future voting rights restrictions. At the writing of this book, at least two state
voter ID laws that have been passed in these “probation” states have been
rejected by the Justice Department on this ground. Other states that are not
under such a federal overview (because they were not cited as being on
probation) passed statutes that the federal government could not challenge,
except in federal court as a violation of the Fourteenth Amendment. But these
challenges are subject to judicial review. An appeals court must intervene for
action to occur. This means that those states cited in the 1965 Voting Rights
Act are proximately responsible to the Justice Department first and that those
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states not cited have their statutes intact subject to judicial review. The duty
bearers in this situation (whether it be executive enforcement or judicial
review) are institutional agents in the process.30 As we transition to the
practice/policy phase of this argument (Part Three), there will be an
increasing need to delineate specific duty bearers within the rights or the duty
formulas (set out earlier).
However, the examination of the duty bearers must go further. To begin
this exploration, one must first think about the organization of peoples in the
world. At this moment in human history, the world is organized into large
countries that, in turn, have suborganizational schemes. This is in contrast to
earlier eras in human history in which very small organizational units were
primary. The reason for this earlier organizational scheme was largely due to
constraints on transportation and communication. When the horse, the boat,
or human walking were the principal modes of transportation and
communication, and if effective direct decision making required responses
within a week (more or less), then the size of a community would be
determined accordingly. I set out communities as being of two sorts. The first
is the micro community in which everyone within the community could
potentially meet and talk to everyone else in the community. The small sorts
of effective communities that I mention here throughout human history and
even in some parts of the world today are essentially micro communities. The
second sort of human community is the macro community in which the flow
of power is delegated (in one way or another) to rulers of the micro
communities to act on their behalf in the shaping of larger policies.
Throughout most of the pre-nineteenth-century world, the actual effective
unit of government (the micro community) was determined in how far one
could travel in a week (more or less).31 Confederations of various ruling
fiefdoms could be called “states” and have a king or queen, but this
secondary level of rule was very indirect and generally affected the monarch
and the subrulers (dukes or warlords) who would pay the regent a fee (sort of
protection money) for being a part of the confederation – the macro
community. In this type of world, the duty bearers would be those real people
living in the confines of a limited space (micro community) where they could
conceivably mark their space by their own means of transport: by foot, horse,
or boat. Thus, most on-the-ground, practical duty bearing would be between
people and families who knew each other. It would be clans looking out for
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each other.
As transportation and communication have developed, so did the
knowledge about conditions around the world. The eighteenth, nineteenth,
and twentieth centuries made progressively larger strides in this direction. In
the post-Internet world there is really no excuse for anyone to be ignorant of
the plight of virtually anyone living on earth.32 For this reason, I
supplemented my discussion of nationally based visions of justice in A Just
Society (2004) with a cosmopolitan account in Morality and Global Justice:
Justifications and Applications (2011).
The reason for these distinctions is to prompt the way we think about duty
bearers. There is certainly a practical and a theoretical dimension here. In the
practical dimension, if x (a person living in England) does not know that y (a
person living in central Africa) even exists, then it is rather odd to think about
x being a duty bearer to y. Using the ought implies can standard, before
recent history, it was very difficult for x to know anything about y – much
less that x owed y something. This practical dimension has driven some of
the discussion on correlative duties to valid rights claims.33 James Griffin
thinks that many rights claims do not require a practically identifiable duty
bearer – such as the duty to help victims of HIV/AIDS in Africa obtain antiretroviral medication. Other claims – such as the right to world peace – are
not comprehensible without some practically identifiable duty bearer.34
In the theoretical dimension, it makes no difference whether a duty bearer
knows that he or she or some institution bears a duty. The duty is a duty if it
is properly ascribed, regardless. It is based upon certain empirical facts about
people and their lives in the context of what they are naturally entitled to
claim. A justifiable duty that is not carried out due to ignorance or conscious
choice is still a duty. However, it is rather Pyrrhic to say that x has a duty
(either a person, a group of people, an institution (such as an NGO), a nation,
or a multinational organization) if he or she or they are not aware of
conditions on the ground (ignorance of the fact). The only question to be
asked in this case is whether the ignorance is due to negligence or
recklessness (what Aristotle called asophrosume).35 If neither negligence nor
recklessness is involved, then there is no culpability in not carrying out one’s
duty – because one is ignorant that he had a duty. Though there is no
culpability, there is still a duty, but because of the caveat of ignorance there is
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no culpability among the duty bearers.
However, in today’s world, as mentioned earlier, this can hardly be the
case. With the Internet that is accessible to a very large portion of the world’s
population in some form (especially in the G-20 nations—geographically
large and significant economies which are the G-8 plus South Africa,
Mexico, Brazil, Argentina, China, South Korea, India, Indonesia, Turkey,
Saudi Arabia, Australia and the European Union), people have an
epistemological duty to make themselves aware of the plight of a significant
portion of the world’s population. This awareness that they are duty bearers
should, with the proper personal worldview, give them motivation to
Therefore, my response to the duty-bearer query is that the form for claims
rights set out previously in every case requires specification of “against
whom.” This is specification of the duty bearer. This specification can be
made against persons, groups of people, national institutions (such as NGOs),
nations, or multinational organizations. Yes, duties need to be specified, but
the duties exist regardless of whether those who bear the duties recognize that
they must do them.
1 Oxford English Dictionary, ed. James Murray, et al. (Oxford: Oxford
University Press, 1971).
2 Wesley Hohfeld, Fundamental Legal Conceptions (New Haven, CT: Yale
University Press, 1919): 36.
3 Michael Boylan, A Just Society (Lanham, MD: Rowman and Littlefleld,
2004): 11–12.
4 For treatments biological and nonbiological, see Kaesuk Yoon, Naming
Nature (New York: Norton, 2009) and Judith Wilson, Discovering Species
(New York: Columbia University Press, 1999).
5 Two accounts that focus on particular figures show the split among women
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(and men) on suffrage. See N. E. H. Hull, The Woman Who Dared to Vote:
The Trial of Susan B. Anthony (Topeka: University Press of Kansas, 2012)
and Jennifer M. Ross-Nazzal, Winning the West for Women: The Life of
Suffragist Emma Smith DeVoe (Seattle: University of Washington Press,
6 For an account of how the temperance and suffrage movements worked
together, see Holly Berkeley Fletcher, Gender and the American Temperance
Movement of the Nineteenth Century (London: Routledge, 2007).
7 Hohfeld, Fundamental Legal Conceptions, 53–64.
8 John Austin, The Province of Jurisprudence Determined, 5th ed. vol. 2, ed.
Robert Campbell (London: John Murray, 1885).
9 Jeremy Bentham, “Nonsense on Stilts,” in Jeremy Bentham: Rights,
Representation and Reform, in The Collected Works of Jeremy Bentham, ed.
P. Schofield, C. Pease-Watkin, and C. Blamires (Oxford: Clarendon Press,
10 Hohfeld, Fundamental Legal Conceptions, 47–50.
11 Hohfeld, Fundamental Legal Conceptions, 60–63.
12 Recent work on violence and the Stockholm Syndrome includes Chris
Cantor and John Price, “Traumatic Entrapment, Appeasement, and Complex
Post-Traumatic Stress Disorder,” Australian and New Zealand Journal of
Psychiatry 41.5 (2007): 377–384, and Sinéad Rhodes and Fiona Jones,
“Captivating Interest in Survival,” Psychologist 22.12 (2009): 1008–1009.
13 Though there is some dispute on the meaning of this adage (whether you
can beat your wife with a stick as long as it is no fatter than your thumb), it is
taken to be the centerpiece theme for the United States Commission on Civil
Rights, Under the Rule of Thumb: Battered Women and the Administration of
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Justice, 2 vols. (Ann Arbor: University of Michigan Library, 1982).
14 A classic general overview of some of these concerns can be found in
Isaiah Berlin, Four Essays on Liberty (Oxford: Oxford University Press,
16 On general assaults of the new digital age on privacy, see Emily
Christofides, Amy Muise, and Desmarais Serge, “Information, Disclosure
and Control and Facebook,” Cyberpsychology and Behavior 12.3 (2009):
341–345; S. R. Peppet, “Unraveling Privacy: The Personal Prospectus and
the Threat of a Full Disclosure Future,” Northwestern Law Review 105.3
(2011): 1153–1204.
17 Concerning data mining and privacy, see V. Thavavel and S. Sivakumar,
“A Generalized Framework of Privacy Preservation in Distributed Data
Mining for Unstructured Data Environment,” International Journal of
Computer Science 9.1 (2012): 434–441.
18 Michael Sandel, Justice: What Is the Right Thing to Do? (New York:
Farrar, Straus and Giroux, 2009): 3–5.
19 E.g., Onora O’Neill, Towards Justice and Virtue (Cambridge: Cambridge
University Press, 1991): ch 5, sect. 2.
20 For an excellent overview of the significance of Newton’s work, see
Colin Pask, Magnificent Principia: Exloring Isaac Newton’s Masterpiece
(Amherst, NY: Prometheus, 2013).
21 I am following the general account of externalist epistemology set out by
Robert Audi, Epistemology: A Contemporary Introduction to the Theory of
Knowledge (New York: Routledge, 2011).
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22 The literature on confirmation and falsification is quite large. Some
classic articles include Moritz Schlick, “Positivism and Realism,” trans. Peter
Heath (1932–33), reprint Moritz Schlick: Philosophical Papers II (1925–
1936) from Vienna Circle Collection, ed. Henk L. Mulder (Dordrecht:
Kluwer, 1979): 259–284; Percy Bridgman, “The Operational Character of
Scientific Concepts,” in The Logic of Modern Physics (London: Macmillan,
1955): 1–32; Rudolf Carnap, “Empiricism, Semantics, and Ontology,” in
Meaning and Necessity, enlarged edition (Chicago: University of Chicago
Press, 1956): 205–221; Karl Popper, The Logic of Scientific Discovery
(London: Unwin Hyman, 1987 [1959]): 133–161; Hilary Putnam, “The
‘Corroboration’ of Theories” from The Library of Living Philosophers, vol.
14: The Philosophy of Karl Popper, ed. Paul A. Schilpp (LaSalle, IL: Open
Court, 1974): 221–240; Thomas Kuhn, The Structure of Scientific
Revolutions, 2nd ed. (Chicago: University of Chicago Press, 1962): 92–110;
Bas van Fraasen, “To Save the Phenomena,” Journal of Philosophy 73.18
(1976): 623–632; Richard Boyd, “On the Current Status of Scientific
Realism,” Erkenntnis 19 (1983): 45–90; and Arthur Fine, “The Natural
Ontological Attitude,” in Scientific Realism, ed. L. Leplin (Berkeley:
University of California Press, 1984): 83–107. More contemporary studies
have greater focus on epistemological models and inductive logic
(particularly statistics): Timothy McGrew, “Confirmation, Heuristics, and
Explanatory Reasoning,” British Journal for the Philosophy of Science 54.4
(2003): 553–567; Laura Snyder, “Confirmation for a Modest Realism,”
Philosophy of Science 72.5 (2005): 839–849; Aysel Dogan, “Confirmation of
Scientific Hypotheses as Relations,” Journal for General Philosophy of
Science 36.2 (2005): 243–259; John Lasee, Theories on the Scrap Heap:
Scientists and Philosophers on the Falsification, Rejection, and Replacement
of Theories (Pittsburgh: University of Pittsburgh Press, 2005); Christian
Hennig, “Falsification of Propensity Models by Statistical Tests and
Goodness-of-Fit Paradox,” Philosophia Mathematica 15.2 (2007): 1666–
1692; and Kãrin Nickelsen and Gerd Graß0hoff, “In Pursuit of
Formaldehyde: Causally Explanatory Models and Falsification,” Studies in
History and Philosophy of Biological and Biomedical Science 42.3 (2011):
23 Hohfeld, Fundamental Legal Conceptions, 36–40, 65–67.
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24 This formulation originally comes from Alan Gewirth in Jeremy
Waldron, ed., Theories of Rights (Oxford: Oxford University Press, 1984):
93. I have altered it somewhat for use in this volume.
25 Michael Boylan, “The Moral Right to Healthcare – Part Two,” in Medical
Ethics, 2nd ed., ed. Michael Boylan (Malden, MA: Blackwell, 2013);
“Medical Pharmaceuticals and Distributive Justice,” Cambridge Quarterly of
Healthcare Ethics 17.1 (Winter, 2008): 32–46.
26 H. L. A. Hart, “Are There Any Natural Rights?” Philosophical Review 64
(1955): 176–177; John Austin, Lectures on Jurisprudence, 5th ed., ed. Robert
Campbell (London: John Murray, 1883).
27 See the essays by Beth Singer and Virginia Held in Gewirth: Critical
Essays on Action, Rationality and Community, ed. Michael Boylan (New
York: Roman and Littlefield, 1999): 13–28, 145–154.
28 Singer and Held in Boylan, Gewirth. See also my discussion in Chapter 4.
29 This is a question of some dispute. See Singer and Reiman’s comments in
Boylan, Gewirth.
30 Of course this landmark law has been severely affected by Shelby County
v. Holder (2013) in which the United States Supreme Court changed the
burden of proof from the state or local level to the U.S. Department of
Justice. This may have the effect of gutting the practical force of the law.
31 The conjecture that communication and transportation played an
important role in political organization has been a thesis that several have
examined. For a small sampling of these, see Filippo de Vivo, Information
and Communication in Venice: Rethinking Early Modern Politics (Oxford:
Oxford University Press, 2009); Jurgen Habermas, On Pragmatics of
Communication (Cambridge, MA: MIT Press, 2000); Hans J. Hummer,
Politics and Power in Early Medieval Europe: Alsace and the Frankish
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Realm, 600–1000 (Cambridge: Cambridge University Press, 2009); Jenni
Nuttall, The Creation of Lancastrian Kingship: Literature, Language, and
Politics in Late Medieval England (Cambridge: Cambridge University Press,
2011); and Jared Diamond, Guns, Germs, and Steel: The Fates of Human
Societies (New York: Norton, 2005).
32 This point is made by Julie Kirsch in supporting my position on
Cosmopolitanism in “When Is Ignorance Morally Objectionable?” in The
Morality and Global Justice Reader, ed. Michael Boylan (Boulder, CO:
Westview, 2011): 51–64.
33 For the position that there must be actually identifiable duty bearers, see
Onora O’Neill, Towards Justice and Virtue (Cambridge: Cambridge
University Press, 1991): ch. 5, sect. 2. Carl Wellman calls such instances civil
rather than human rights in Welfare Rights (Totowa, NJ: Rowman and
Allanheld, 1982): 181. Of course, a possible stand-in for duties can be public
institutions: John Tasioulas, “The Moral Reality of Human Rights,” in
Freedom from Poverty as a Human Right: Who Owes the Very Poor? ed.
Thomas Pogge (Oxford: Oxford University Press, 2007).
34 James Griffin, On Human Rights (Oxford: Oxford University Press,
2008): 101–110.
35 Aristotle, Ethica Nicomachea, ed. I. Bywater (Oxford: Clarendon Press,
1920): VII.3–1146b 20–1149b 35. The key contrast here is with akrasia.
Asophrosune is fully culpable and the paradigm for evil behavior while
akrasia is less culpable.
36 See my thoughts on personal worldview: Boylan, A Just Society; Michael
Boylan, Basic Ethics, 2nd ed. (Upper Saddle River, NJ: Prentice Hall, 2009);
and Michael Boylan, Morality and Global Justice: Justifications and
Applications (Boulder, CO: Westview, 2011).
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2 A Short History of Human Rights in the West
Why should anyone care about the history of how human rights have been
recognized in the Western Tradition – or anywhere else for that matter? The
answer goes to the heart of this inquiry: a theory of natural human rights. If
as Charles Beitz suggests, it is the case that any useful understanding of
human rights originated in 1948 with the United Nations’ Universal
Declaration of Human Rights, then the legal approach set out in Part Two of
this volume becomes very plausible.1 Others, like James Griffin, set the
origins in the Enlightenment with foreshadowing in the Middle Ages. This
mirrors the historical shift to the individual over against the community
perspective. If the interest approach set out in Part Two of this volume is
correct, then the historical transformation of attention to the individual
perspective supports the sort of rights theory that the interest approach sets
out. Finally, if my agency account is correct and if human agency is roughly
the same throughout human history West and East, then I should be able to
demonstrate background and related concepts throughout the human record
on earth. To do this systematically would be a monumental task and beyond
the scope of this volume. However, some important points can be sketched
out with respect to the plausibility of these claims (a lower burden of proof). I
address the Western tradition in this chapter and China in the next.2
2.1 Human Rights as a Recent Phenomenon
Kenneth Cmiel makes the historical claim that “prior to the 1940s, the term
[human rights] was rarely used.”3 This links to an understanding of human
rights as being involved in a practice in which “states are responsible for
satisfying certain conditions in their treatment of their own people and that
failures or prospective failures to do so may justify some form of remedial or
preventive action by the world community or those acting as its agents.”4
When we focus upon the practice as Beitz sets out, Cmiel’s claim is
plausible. The center of interest in this respect is an international arena in
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which various nations try to get other nations to adhere to some sort of
standard. This practice-based approach began with the Nuremberg Trials in
which some of the more prominent Nazis were held accountable for their
behavior during World War II. The impetus of the Holocaust helped re-form
the defunct League of Nations into the United Nations. One of the very early
documents in this newly formed organization was the Universal Declaration
of Human Rights, which spawned considerable controversy when it was
drafted. Some, like Hannah Arendt, believe that the outrage over the
Holocaust has to be seen against an agreed background of what is appropriate
and decent.5 Under this assumption, the reaction to the Holocaust was a
catalyst in the creation of the practice-based international approach to
pressure particular nations to respect the negative right to exist without
harassment, imprisonment, and death for the “crime” of being of a particular
race, ethnic group, or religion. But this quickly broadened to a host of other
rights including health and economic rights.6
In the 1950s, the scope of human rights ignited two separate movements:
civil rights movements (concerning descendents of slaves and indigenous
peoples) and decolonization movements to free countries from their colonial
masters.7 These movements were also a part of the human rights practicebased approach. The international community put pressure on colonial
powers to grant independence to actual colonies or to neo-colonies such as
Rhodesia (modern Zimbabwe), Zambia, Malawi, and South Africa. This
international pressure sought home rule for these countries. The reason given
was that individual autonomy (a human right) trumped the pretended
paternalism that the colonial governments had asserted.
Thus, this first wave of post–World War II human rights talk incorporates
discussion of matters of civil and political rights and economic, social, and
cultural rights.8 The theme was centered around national autonomy and
articulated by writers from disparate parts of the world: Nigerian Mbonu
Ojike stated, “The right to rule oneself is a natural right,” and Ho Chi Minh
quoted Thomas Jefferson’s declaration of independence talk in asserting
Vietnam’s right to self-determination.9
There were some successes in the human rights practice-based approach:
(a) the civil rights movement in the United States, Canada, Australia, and
Western Europe; (b) the largely successful decolonization of various nations
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around the world – particularly Africa (the last holdout); and (c) the
launching of concern about unempowered peoples such as women and
This large agenda expanded some, but then contracted as a second wave of
human rights practice turned to the activity of nongovernmental organizations
(NGOs) in the 1970s. Technocrats in these organizations were much more
efficient in delivering services such as nutritional and health support as well
as agricultural assistance and job training.10 This detailed assessment and
response approach represented a deflationary definition of the practice as
opposed to the grandiose vision of the first wave that sought to spread
national autonomy and democracy around the world. The second wave
wanted to identify exact needs and fulfill carefully and narrowly described
terminal objectives.
A third wave can be identified that began at the end of the 1980s and the
cessation of the Cold War. This wave once again expanded the purview of
attention to women’s rights, economic justice, and indigenous people’s
rights. The mood is often positive as it seems that dictators can be prosecuted
and that sovereign immunity may be a thing of the past.11 But this belies
successive human rights abuses on the ground such as in Darfur, Kosovo, and
Rwanda. One can wonder whether the backslapping over perceived progress
is really justified. Surely there were successes: (a) decolonization occurred;
(b) civil rights movements showed some success throughout the world; (c)
some indigenous people’s rights were recognized; (d) women’s and
children’s rights were more widely recognized; and (e) NGO-targeted
programs were largely successful within their given constraints. But Darfur,
Kosovo, and Rwanda illustrate painful failures, as well.
Part of this difficulty may come from what some have called the paradoxes
of human rights. The paradox occurs when one matches grand universal
claims for a large number of human rights against a track record of practice
that is far more modest than the theory. These disparities are not
contradictions as such but illustrate that practice is not as expansive as the
goals.12 They call for cultural/political negotiation so that the practice can
come closer to its stated goals.13
However, sometimes the gap between practice and stated goals faces
further complicating factors. These may exacerbate the situation in cases
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involving racial and cultural tensions within a society. Sometimes these
tensions inflate to genocide, which has been a touchstone for human rights
practice since the Second World War.14 Genocide often creates an opaque
context in which the true horrors of its occurrence are not fully recognized by
the rest of the world until most (if not all) of the damage has been done.
These setbacks along with the 9/11/2001 terrorism tragedy in the United
States made some commentators declare that the practice of human rights had
been set back.15 These premonitions came true to some extent as privacy
rights were compromised with unauthorized surveillance, civilians were
subjected to rendition, and torture was practiced to obtain strategic
However, in a fast-moving world, even these setbacks seem to be
temporary. The wide use of public communication devices available via
smartphones and the Internet allows information to travel swiftly to the world
via Twitter and other social networking media. This has proved to be a new
tool that has instigated a fourth wave of human rights practice in the
contemporary (post–World War II era). The display of communication (a
bane to dictators everywhere) can be seen in the Arab Spring of 2011. The
Arab Spring began in Tunisia when protesters demanded the removal of
president Zine al-Abidine Ben Ali. The claims of the protesters were about
the right to eat (the cost of food), political corruption, freedom of speech, and
basic political rights. Then came Egypt, as thousands flocked to Tahrir
Square in Cairo and elsewhere. Their demands were similar to those in
Tunisia. Both sets of protesters were successful: the leaders of both countries
fled. This was the first chapter of the Arab Spring. It was largely peaceful.
Then the citizens of other countries became involved: Bahrain, Yemen,
Syria, and Libya. The leaders in these countries were not content to ride away
into the sunset. They ordered their soldiers to fire live ammunition into the
crowds and imprison the ringleaders. Many were killed. Colonel Muammar
el-Qaddafi set out a bloody counterattack so brutal that it prompted a United
Nations and North Atlantic Treaty Organization (NATO) military response.
Eventually, Libya fell and Qaddafi was killed. At the writing of this book, the
succession of governance in these countries is incomplete. The second
chapter has been violent.
The third chapter of the 2011–2013 Arab Spring continues as I write this
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book, with Syria at its focus. Bashar al-Assad is the autocratic leader. He is
using the same sort of brute military force against his own people that his
father employed in the Hama massacre that took 10,000 to 40,000 civilian
casualties.17 At this writing, the story in Syria is still being told – writ red in
the blood of noncombatant civilians.
In Egypt, there was a counterreaction in 2013 to the 2011 nonviolent
protest. This coup d’état by the military resulted in popularly elected
President Mohamed Morsi being removed from power by General Abdul
Fatah al-Sisi. The removal prompted protests but the army chose to use live
ammunition to attempt to put down the rebellion. At the writing of this book,
former pariah Hosni Mubarak was released from prison. The tide turned.
Other countries, such as Jordan, Oman, and Kuwait, also felt the pressure
of these events and have made a few changes in response to mostly peaceful
demonstrations (reminiscent of the Prague Spring in 1968). What seems clear
to this author is that the description of human rights as a practice-based
approach now must include the new media of smart cell phones along with
the Internet to connect people together so that the knowledge chip moves
away from the dictatorial autocrat and to the general populace (see Chapter
9). How this will play out in the future is anyone’s guess. I do think that it is
at least plausible that popular solidarity (necessary for any successful
revolution) will be aided by the new communication devices – unless a
counter technology emerges that shuts everything down.
What this section has tried to accomplish is to illustrate the way one might
think about human rights if the origin is set as 1948 and the post–World War
II era. It is distinctive that the practice of human rights advocacy by nations,
international treaties, the United Nations, and NGOs has made a unique
contribution during this era.
But is this the whole story? Stay tuned to the next two sections.
2.2 Human Rights in the Ancient and Medieval
When we turn our attention to the ancient and medieval worlds, the question
changes somewhat. The language is not explicit about natural human rights
that attach to individuals but instead about the background conditions that
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validate understanding the human condition (considered collectively and
normatively) and nature (considered as a realm separate from and
superseding human agreement). These two concerns can be depicted as the
natural law perspective. This natural law perspective displays itself primarily
via ethics/political/legal philosophy. But it can also be presented via natural
philosophy (what we contemporaries call natural science). A few general
comments can be made about both before pursuing in more detail some
insights into the ancient world and then the medieval world.
The ethical/political/legal perspective is the broader of the two
interpretations. The use of phusis or natura need not be excluded from god[s]
in the ancient or medieval worlds. The two can be interchangeable as
representing an ontological other that is cosmologically superior to the realm
in which we exist. So what might this be like? On the interpretation that the
ontological other is god[s] or principle[s], then either the other abides among
us (à la Henry More or Alfred North Whitehead),18 or the other exists
somewhere else that is in immanent contact with us. The former could be
consistent with atheist, agnostic, or deist traditions (since this other need not
be anything more than real, regulative principles). For ease in discussion let
us call this understanding the realist assumption. The latter interpretation is
the more conventional response given by those in the Abrahamic religious
traditions. For ease in discussion let us call this understanding the theist
assumption. In either event, what is crucial is that a hierarchy of authority is
created. Whether or not the laws exist as a second-order logical reality that
governs us (without falling prey to the famous self-referential paradoxes) or
in a reality that is separate and superior (in the sense of normative
prescriptive governance), it can have the same effect (see Chapter 7). So to
make things clear I take natural law in the ethical/political/legal realm to
involve the existence of a justification for ethics, politics, and the law that is
logically separate from and more authoritative than human constructions.
This is the essence of the realist, naturalist position that this author endorses.
The natural philosophy perspective (concerning what we moderns call
science) is narrower (and therefore simpler). It operates on the principle that
the very existence of natural philosophy is defined as when the gods leave.19
Material principles (which become mechanical in the Enlightenment) take
over. In this case the ontology becomes simpler. It must be the case that the
natural laws abide among us (including all the natural actors and objects).
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With these distinctions in mind, let us briefly consider natural law in the
ancient world.
Natural Law in the European Ancient World
Because the questions about natural law are complex and because this is a
very surface summary, we confine ourselves here to a few authors who have
a substantial corpus of existent texts. We can begin with a brief examination
of several key texts. First, there is Homer. In the Iliad there is a mixture of
convention and natural law (here understood as being in accord with the
gods). Achilles is angry with Hector because he killed Petroclus (who had
been wearing Achilles’ armor). In the conventional sense, Petroclus was
wrong to wear another’s armor. To others, this was a bull’s eye that the
ultimate hero of the battle was before them. He was fair game for Hector to
encounter. But Achilles was enraged at the death of his friend/lover. He
stormed back and not only killed Hector but defiled the laws of the gods
(natural law) in dragging Hector’s dead body around Troy. (Achilles also
defiled the laws by leaving the corpse to be scavenged by wild animals.) This
was a signature day in the narrative of the ancient Greek world. The noble
(kalon) Hector is treated with disrespect that is shameful (aischron). The act
is so egregious that Plato later makes reference to it in the Gorgias (473a–
475d). The source of the shame was that the laws of the gods (natural law)
were being violated.
This theme – that there are consequences for violating the laws of the gods
– is developed in the Odyssey when Odysseus offends Poseidon and the other
gods by not making proper sacrifice after the fall of Troy. Of course, the
hubris that Odysseus portrays as he leaves the island of the Cyclops (a
favorite of Poseidon) didn’t help either. Both are instances of pride, which is
the essence of sin in many of the world’s religions (theistic natural law). By
violating [theistically understood] natural law and inserting man’s own
achievements in its place, the Odyssey shows the conflict between natural and
human law. Since the former should trump the latter, and since Odysseus
attempts to do the opposite, then his great journey and hardship are a
cautionary tale of what h…
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