ABSTRACT:The increasing emphasis on Human Rights as part of the global zeitgeist since 1945 has revolutionised international law and the policies of governments. Despite this, the philosophical foundations of Human Rights are not very clear. International legal instruments refer to Human Rights being based on ‘dignity’; however dignity is a slippery concept. In a world where Human Rights are of such great importance it is essential that they are properly understood. This paper will explore and critically evaluate a variety of dignity-based conceptions of Human Rights including those based on Liberalism, Deontology and Utilitarianism. It will be suggested that a number of particular conceptions standout as being the strongest which, inter alia, crucially balance carefully the interests of the community against the interests of individuals. Significantly, it shall be pointed out that while various international Human Rights instruments appear to possess the hallmarks of particular philosophical theories, some of the Human Rights included in those instruments do not necessarily reflect the result of the theory being applied. This paper will conclude by suggesting that the most appropriate view of the philosophical foundations of Human Rights is that of a mixture of the strongest dignity-based theories rather than one alone. This mixture of dignity-based theories can be viewed upon as a holistic conception of Human Rights based on human dignity. The holistic conception is of great practical importance because, inter alia, it can be used to properly identify a hierarchy of Human Rights, increase respect for them, and assist in the solving of complex Human Rights related dilemmas.
Key words: Philosophical, Foundations, Human, Rights, Dignity, Community, Individual, Liberalism, Deontology, Utilitarianism
Human Rights issues reach world populations on a daily basis2 and this publicity is hardly a surprise because these rights are vitally important for human security and development as the quote above by Annan stresses. They are discussed in the international conferences, the highest levels of governments, and in the class rooms of primary school students. However, the philosophical basis for Human Rights is often misunderstood3 , if considered at all. It is essential that the philosophical foundations of Human Rights are understood in order to properly identify a hierarchy of Human Rights, increase respect for Human Rights, and assist in the solving of complex Human Rights related dilemmas. This paper will critically evaluate dignity-based conceptions of Human Rights, suggest which theories lay the strongest foundations, and argue that the foundations of Human Rights should be seen holistically as a combination of the strongest theories rather than a single theory.
The horrors of the Second World War led to the establishment of the United Nations (UN) in 1945, and the organisation’s founding Charter refers to the importance of ‘reaffirm[ing] faith in fundamental Human Rights, in the dignity and worth of the human person’4 . This ambition was reinforced in the 1948 Universal Declaration of Human Rights (UDHR)5 and the two 1966 Covenants emanating from the UDHR6 . In the name of both ‘dignity’ and ‘Human Rights’ states have been prepared (perhaps ironically) to use military force, as recently seen in Libya7 . Notwithstanding the existence of the UN, many situations have contributed to ‘the twentieth century [being] the bloodiest in human existence’8 , and a general reference to the Oxford Handbook of Genocide Studies9 will support this in disturbing detail. Nevertheless, as Perry notes, ‘the emergence of the morality of Human Rights [and the association of these rights with ‘dignity’] makes the moral landscape of the twentieth century a touch less bleak’10 .
‘The termhuman rights is relatively new’11 (generally being associated with the UN) however philosophers have theorised about ‘dignity’ for millennia12 . The Human Rights presented in the UDHR appear to be a product of Liberalism and the Liberal conception of human dignity will be critically assessed first. Discussion will then turn to the analysis of other dignity-based philosophical ideas which have influenced Human Rights, including forms of Deontology, Consequentialism and Contractarianism. This article will demonstrate that the Human Rights listed in international legal instruments do not necessarily reflect the strongest dignity-based philosophy that lays the foundations for Human Rights. In some instances there is a justifiable basis for differences between theory and practice, while in other cases the practice should reflect the theory. Searle has argued that the necessary work is just beginning for a clear theory of Human Rights13 , however with respect such comments are misleading. It is more appropriate, as Griffin has argued, that philosophers should try to develop the ‘project that the Enlightenment started but left so unfinished’14 . It is hoped that this work will contribute to such developmentin two main ways. Firstly by illustrating that particular philosophical theories are considerably more appropriate as the philosophical foundations of Human Rights than other theories. Secondly, the more appropriate theories can be shown to be compatible, providing the basis for a holistic conception of human dignity. This holistic theory could be built on with the inclusion of aspects of other theories which have not been explored in this paper due to its limited scope.
A thorough understanding of the philosophical foundations of Human Rights is more important than ever before due to the fact the current era is one where Human Rights principles may be tested in practice to the limit. A key challenge for governments is to ‘effectively respond to the threat of terrorism without abandoning […] fundamental human rights principles’15 . Unfortunately, a ‘ticking bomb’ scenario is now frighteningly more realistic than the abstract thought experiment it once was. Similarly the degree of freedom of expression people have in a society is evidently topical in the modern world; the issues associated with WikiLeaks and the Leveson Inquiry eachtestify as examples. It is hoped that this paper contributes to decoding the philosophical enigma of Human Rights and helps to indicate a philosophical framework within which these topical issues can be addressed.
II. THE CONCEPT OF ‘DIGNITY’
UN documents16 claim that the underlying basis for Human Rights is ‘dignity’17 . Those who question the definition of ‘dignity’ may experience some discomfort regarding what are conceived to be ‘Human Rights’. The Oxford English Dictionary defines‘dignity’ as ‘the quality of being worthy or honourable’18 . However, as noted by De Baets, the definition is likelyto vary depending on one’s cultural viewpoint19 . Schachter suggests that the intrinsic meaning of dignity ‘has been left to intuitive understanding, conditioned in large measure by cultural factors’20 . This is insightful to the extent that people will recognise grave indignities such as genocidal massacres or mass killings, but intuition alone does not appear to be a stable basis for a theory ofHuman Rights considering the pluralism of ideas in the world. Nevertheless, acts such as the aforementioned will be recognised by most (if not all) people as indignities. This suggests that there is scope for agreement between cultures on certain matters concerning human dignity. It is due to this basic appreciation that certain activities by their nature and consequences undermine human dignity that both De Baets and Schachter do not consider cultural relativism to be an absolute bar on a consensus on particular issues pertaining to human dignity.
III. THE CONCEPT OF ‘HUMAN RIGHTS’
It seems to be partly due to‘a basic, human emotional empathy with the very concept of suffering’21 that that the idea of a fundamental rights regime applying specifically to human beings22 was born. It is also due to the desire to safeguard inherent human dignity which had been so badly undermined during the twentieth century that Human Rights laws were made.
Hohfeld claimed that rights have four clear characteristics: a claim to a right, privileges enabled by the right, powers to require others to comply with the right (they have a ‘duty’ to comply), and immunities from actions which the right permits23 . The two ‘main theories’of rights are the ‘Will Theory’ and the ‘Interest Theory’24 . As Hart indicates, the former considers the rights holder a ‘small scale sovereign’ having the choice of whether other people’s duties are acted upon25 . The latter in contrast suggests that rights protect X’s ‘well-being [… if] there is a sufficient reason for holding some other person(s) to be under a duty’26 . Dworkin claimed that rights are ‘political trumps’ which protect individuals against competing community goals27 . Ensuring that individuals are granted such protection is taking rights seriously according to Dworkin. Natural Rights theorists such as Hobbes and Locke claimed that some rights were derived from the metaphysical order of the world and ultimately from God28 . Positivists, notably Bentham, have disagreed claiming that such rights were ‘nonsense upon stilts’ and the only rights capable of existence were rights which had been introduced into the law through human legislation29 .
Human Rights have been declared as being ‘universal’30 , ’equal and inalienable rights of all members of the human family’31 which ‘derive from the inherent dignity of the human person’32 . Consequently, Human Rights are not all the rights which humans have, but are the most important rights that humans have which safeguard and promote dignity. Hathaway suggested a hierarchy of Human Rights33 , some of which appear to be the ‘highest aspirations’34 rather than strict Human Rights, words used in the Declaration itself35 . As a result of Human Rights being based on human dignity, it seems to be fair to say that the particular importance of a Human Right will be based on the degree to which it protects or promotes human dignity. Different theories concerning human dignity can lead to different conclusions as to the relative importance of the same Human Right. It is therefore important to consider which dignity-based theories are the strongest in order to have the most holistic understanding of Human Rights.
IV. THE LIBERAL CONCEPTION OF HUMAN RIGHTS
Liberalism is a political theory which suggests that the best conditions for people to live in are those where there is as much freedom as possible37 . Dworkin stated that individuals should have equal concern and respect for each other36 . The only justification for interfering with a person’s freedom is to ‘prevent harm to others’ according to Mill38 . Harm in this context relates to more than moral disapproval of a practice and rather the restriction/invasion of another person’s freedom in a way that results in individuals not being treated equally. The UDHR seems to be engraved with the hallmarks of Liberalism, as the Human Rights included are the foundation of ‘freedom’ and that ‘all human beings are born free and equal’39 .
Liberalism has a variety of strengths as a basis for a theory on Human Rights, and sometimes appears to be subject to unjust criticism. Berger suggests that without a clear cultural context which promotes certain conceptions of the good an ‘individual is thrown back upon himself’ in developing their own meaning towards life40 . However, Liberalism allows individuals to assess a variety of practices in their community (even if they initially disapprove of them) and make up their own mind as to which they wish to adopt. The only practices which are banned are those which cause significant harm to others. Both Griffin41 and Kymlicka42 agree that Liberalism provides the scope for people to question, re-examine and revise beliefs which they reasonably claim is typically human behaviour. Clearly the community is significant for the development of the individual in Liberal theory despite Ramsay’s argument that Liberalism insists on the ‘asocial, atomistic, solitary and self-sufficient individual’43 . As Kymlicka notes, Liberalism is often misconstrued and does not ignore the importance of the community that an individual lives in44 . In the context of international community, nations desire a‘moral lingua franca’to avoid atrocities like those in recent history45 . Kyi agrees ‘it is precisely because of the cultural diversity of the world that is necessary for common values to be agreed on to act as a unifying factor46 . Notably, Liberalism is not neutral in the sense it endorsesboth freedom and toleration as values. Sandel suggests that Liberalism should consequently not be ‘defended by the claim that no values can be defended’47 . However, it seems that an approach which accepts all other approaches,save those which are in violation of the harm principle, is perhaps the only approach that is workable on a global stage and thus can be defended.
Liberalism does have weaknesses. Firstly, the promotion of Liberalism can lead to social unrest in a state, and interstate tensions on the international level. This is because Liberalism is the promotion of a particular way of life. It is indeed attractive for the reasons mentioned in the previous paragraph, however it can and often does conflict with traditions and ways of life which have existed for centuries in certain settings48 . Consequently Liberals should be cautious in practice as to how a global morality is promoted; it cannot be rushed. It is important for Liberals to note that ‘not all decent societies are Liberal’ and many Human Rights are de jure/facto safeguarded in a many non-liberal states49 . Thus the lack of Liberalism in a state should not necessarily be seen as threatening to the establishment of a Human Rights system.
A further problem is that the Liberal conception of Human Rights is in fact a predominantly Western conception of Human Rights50 . As Jahn51 and Beitz52 note the contribution of the views of Eastern states on ‘human dignity’ have been neglected vis-à-vis the development of Human Rights instruments. Considering Liberals are prepared to wage wars and kill in the name of their values this situation is alarming. Most wars fought in the name of Human Rights relate to undisputed violations of human dignity, for example crimes against humanity. However, it seems that in practice the Liberal conception of Human Rights does not match the theory in that it does not account for the views of every culture or even most cultures. The input from Eastern peoples will strengthen the true Liberal approach to recognising fundamental interests. As globalisation increases it is hoped that the conception of Human Rights develops and, in turn, Human Rights acquire greater respect globally.
V. A DEONTOLOGICAL BASIS FOR HUMAN RIGHTS
Deontology53 is a moral philosophy which is based significantly on the works of Kant. According to Kant human beings are rational and reasonable, thus having autonomy deserving of intrinsic worth54 . This worth requires respect which should manifest itself in preventing people from being used as a means to an end55 . The influence of this theory on Human Rights can clearly be seen in Human Rights instruments which stress on the ‘inherent dignity’ of human beings. The fact that torture (which has been considered to be a severer attack on the core of human dignity and integrity than the killing of a person56 ), is prohibited in all circumstances in international instruments57 and the prohibition is considered jus cogens58 evidently complies with this branch of philosophy59 . Kant firmly stressed the existence of ‘categorical imperative[s]’; ‘Act in such a way that you treat humanity, whether in your own person or in the person of another, always at the same time as an end and never simply as a means’60 .
There are various strengths to Kantian Deontology as a dignity-based conception of Human Rights. Firstly a number of clear categorical rights could be established to prevent a person from being used as a means to an end. Concern for the community in which individuals live is vital for a desirable theory of Human Rights; however Kant argues that people should never be used as a means to an end and that no negotiation can be made on this matter. Considering Human Rights are the most important rights to humankind, it is needless to say that such rights should be as certain as possible. The categorical imperative clearly establishes that even the greatest community interests cannot lead to a person being used as a means to an end61 . Kant did recognise that there were other ways to promote human dignity which were not categorical imperatives. These are described as ‘imperfect duties’ and involve individuals choosing to go out of their way to make the world a better place by showing benevolence even on a small scale62 . The reason these duties are not categorical is because an individual ‘would deprive himself’; not being able to exercise their autonomy as they would be obliged to help others63 . Thus while such behaviours should encouraged, or be attractive ‘aspirations’, they would not be fundamentally necessary to safeguard human dignity.
While the categorical imperative principle would lead to certain laws, claiming all categorical wrongs are of the same value appears to run counter to the intuitive idea that some wrongs are worse than others. To illustrate this point consider the following moral dilemma. A German home owner living during the Third Reich is hiding a Jewish family person in their property when members of the Gestapo knock at the door and ask if the home owner has seen any Jews. The home owner knows that if s/he tells the truth the Jews will almost certainly die but if they lie they would be violating one of Kant’s categorical imperatives. Kant claimed that‘a collision of duties and obligations is entirely inconceivable’64 . It may be that distinctions between, inter alia, intending/foreseeing, foreseeing/risking and doing/allowing65 would lead a person to avoid a conflict between categorical imperatives and conclude in the given example that to lie would be worse. However, commentators including Moore suggest conflicts can occur66 . Many people are likely to feel that allowing someone to die (even if they are not personally killing the individual) is worse than being directly responsible for a lie which could save a life67 .
The notion of a categorical Human Right appears to be weak in light of the significance of the community. As Griffin notes ‘issues about trade-offs [between different rights and between rights and the common good] should be at the heart of an account of Human Rights’68 . This is because the individual should not be seen in complete isolation; the community is important in its own right and, as suggested above, allows for individuals to develop. To provide for trade-offs means that nothing can be categorical. As Moore convincingly argues69 and Griffin appears to agree70 , if the situation arose where by the lives of a vast number of people could be saved by torturing an innocent person then there would be a point at which the torture should arguably be carried out as a lesser evil. The German Constitutional Court has declared section 14(3) of Aviation Security Act 2005 unconstitutional which provided for planes to be shot down in a September 11thtype scenario71 . Whether such a decision would have been made were the stakes higher is debatable. Interestingly, the Supreme Court of Israel recognised, obiter, that in instances where torture is used to prevent extreme atrocities such as in a ‘ticking bomb’ scenario, the defence of necessity may be available to those conducting the torture72 . It is true that the reliability of data or information obtained by torture is questionable and therefore the particular circumstances in which torture may be justified would need to be especially carefully considered73 . It is however argued that there is a point (which would need to be established on a case by case basis, after considering all the circumstances) that the good for the wider community as a whole should prevail. Section VI considers a type of Deontology which takes a greater account of the need for trade-offs.
VI. THRESHOLD DEONTOLOGY AS A STRONGER FOUNDATION FOR HUMAN RIGHTS THAN ABSOLUTISM
‘Threshold Deontology’ (TD) appears to be a more holistic deontological theory. Moore, the main advocate for TD, stressed that principles (for example the protection of human dignity) have a value and while this value may be large it is not insurmountable vis-à-vis the avoidance of certain consequences. There are two conceptions of TD. The first refers to a threshold of awfulness after which categorical imperatives do not apply74 . The second refers to a sliding scale where the threshold varies in proportion to the wrong being done75 . The second conception appears to be a stronger theoretical basis for Human Rights on the basis it shows a balanced respect for human dignity as well as the pressing need to protect the community. Such a conception would address key weaknesses of deontological absolutism and embrace the issue of trade-offs. Commentators advocating both Eastern and Western views agree that the relationship between the individual and society is an issue which is fundamental when considering a basis for Human Rights76 . The theory provides a way of dealing with the most desperate- sauve-qui-peut (“every man for himself”)situations. Both Williams77 and Griffin78 argued that such situations are so drastic that any decision in relation to them does not matter from a moral point of view. However, TD would suggest that morality can address the situation by advocating for the lesser evil. Importantly, such advocacy should occur with a ‘whisper’ as the lesser evil is nevertheless an evil79 .
The main problem regarding TD is the identification of a particular threshold. Commentators such as Ellis80 and Alexander81 have stressed that there would be no clear way of discerning a threshold. Even Moore himself has pointed out that each case would have to be assessed on its own facts and a decision made82 . Considering the idea that human dignity is something that every human being possesses, such a crude subjective approach is unattractive. However, as Fields argues, a conception of Human Rights is required to be holistic as there are an infinite number of ways that a person’s dignity can be safeguarded, promoted and interfered with83 . Sometimes the most holistic approach is to assess each case on its own facts. Decisions may vary between those potentially making these very difficult decisions in practice but this (subject to regulation) may be the best that human beings can do in these hard cases. TD does appear to be an appropriate theory for addressing topics such as torture which was mentioned in Section V of this paper. The question may therefore be posed whether torture should remain absolutely prohibited by international Human Rights instruments?. Despite there being a significant philosophical basis which could justify torture in very limited circumstances84 , the existence of any legal scope for the authorisation of torture could open a ‘Pandora’s box’85 with torture being used more frequently than if TD was properly applied. Therefore, it is suggested that the law should continue to absolutely prohibit torture,to prevent an abuse of TD. The fact TD does provide the scope for torture in the most limited circumstances does however allow those making the most difficult Human Rights decisions to act in a way which gives proper respect to human dignity provided the threshold is very carefully calculated.
VII. ACT UTILITARIANISM AS THE UNDERPINNING OF A HUMAN RIGHTS THEORY
Act Utilitarianism is one of the most famous examples of a broader philosophy known as Consequentialism. Consequentialist schools of thought suggest that a dignified human life is one which shows significant (and often absolute) concern for the consequences of behaviour based on a conception of the good86 .
Bentham is a well-known advocate of Act Utilitarianism Hedonism which suggests that happiness is the only intrinsic good which human beings seek87 . Happiness is the experience of pleasure over pain88 . From the onset it is important to note that Bentham suggested rights should be established if they produced the greatest happiness for the greatest number89 . This clearly conflicts with Dworkin’s notion of rights as ‘trumps’ as well as deontological theories on the basis that rights in the context of these theories are characterised by their protection of individuals from threats posed by community goals.
Nevertheless this form of Utilitarianism has a significant degree of appropriateness as a dignity-based conception for Human Rights. Firstly, like deontological absolutism it is a relatively simple theory in its premise; all that is required is the greatest happiness is calculated. Killing innocent people does not generally make the majority happy and thus rights should safeguard these interests. Utilitarianism also offers a clear answer to the hard cases being discussed above; if even one additional life could be saved by torturing or killing a person or number of people then this is the action which should be taken. Further, Act Utilitarian Hedonism recognises individuals make up the community and,in promoting the overall happiness, it takes account of every individuals’ conception of happiness regardless of what that is and weighs it respectively. Under this theory, rights which require the active promotion of the welfare of individuals are likely to be established or even insisted on.
The theory may be simple, however like deontological absolutism it appears reductionist. Happiness is not the only thing which people seek. Raghunathan points out, for example, many people appear to prefer to know the truth than be happy90 . This is illustrated by ‘The Sheriff’ thought experiment which presents the situation of a mob demanding a (innocent) prisoner be hanged for a killing they think he committed and the Utilitarian response providing the scope for the innocent person to be hanged if it will save net lives by preventing a riot91 . This is because happiness is more important than the truth in the Utilitarian theory. In light of this it can be suggested that Utilitarianswould also suppress the truth in order to sustain the general happiness of the majority. It may be argued by Utilitarians that if promoting certain values (such as the truth) makes people happy then the value would not be deprived from them. However, this appears to be an ‘empirical dodge’ in that the future cannot be accurately predicted in respect of whether the truth of a situation would ever be discovered by those who want to act (unknowingly) on a false premise at a particular time and what degree of happiness the same people would experience by knowing the truth92 . Act Utilitarian Hedonists would make decisions based on the facts available to them at a particular time. Given the facts of the ‘Sheriff thought experiment’ Utilitarians would hang the innocent person93 . The Utilitarian response is to ‘outsmart’, meaning ‘to embrace the conclusion of one’s opponent’s reductio ad absurdum argument’94 however this is hardly a satisfactory result. As both Rawls95 and Shestack96 have commented, Utilitarianism fails to recognise significantly the distinction between persons. Each person is potentially expendable for the happiness of a greater number of people. In order to promote happiness Utilitarians would be prepared to develop an oppressive regime, with rights being worth very little. This is hardly compatible with intuitions relating to the promotion of human dignity.
These points aside, it appears that it may not be the quantity of happiness which attracts people but its intensity, this is illustrated in the thought experiment ‘Haydn and the Oyster’97 . A soul in heaven is given the choice between two lives, that of the composer Joseph Haydn and that of an oyster. Besides composing wonderful music and influence the evolution of symphony, Haydn will enjoy success in his lifetime, he will be cheerful, popular and gain enjoyment from the practical activities he engages in. The oyster’s life will consist only of mild sensual pleasure although it will enjoy each bask in the water the same as the first time. Haydn will live until the age of seventy-seven while the oyster can live as long as the soul desires. Clearly, Haydn’s life will involve more intense pleasures but, if the oyster’s life is long enough, its overall pleasure (from a Benthamite perspective) will outweigh that of Haydn. Many people would prefer Haydn’s life based on its quality98 . In any event, it is very difficult and time consuming to calculate what produces the greatest happiness. Crisp notes that Mill appears to understate the demanding nature of Utilitarianism on purpose so as to avoid losing support99 .
VIII. RULE UTILITARIANISM: A MORE APPROPRIATE UTILITARIAN THEORY?
Rule Utilitarianism is often presented as an attractive alternative to Act Utilitarianism, including its strengths but lacking its weaknesses. Barnes highlights that Rule Consequentialism is a moral school of thought which requires a set of rules be created on the basis of a conception of the good (for example happiness for rule Utilitarians)100 . The rule should promote the good in as many situations as possible, although occasionally a situation may arise where the rule does not. This approach can be seen in some respect as an attempt to avoid the issue of an empirical dodge. Indeed as Moore argues101 , a rule may be ‘never torture an innocent’ as this action will generally not increase people’s happiness; especially if they are aware of the truth. As a basis for Human Rights this approach may seem attractive as it is likely to avoid the intuitively abhorrent consequences Act Utilitarianism may produce. It also seems to provide a strong foundation for rights, based on rules which cannot be changed as easily as a change of mind as to what makes people happy.
However, the calculations required to develop such a rule would or should be significantly advanced. To develop a theory of Human Rights would be very time consuming even if not as much as Act Utilitarianism. Further, if actions are morally right providing they follow a rule then in some instances, as Moore points out, there would be significant inconsistency with the underlying consequentialist demand in that the best consequences may not be produced by following a rule102 . This could be due to miscalculations in making the rule and the difficulty inconsidering every possible scenario. Due to the uncertainty of the stability of a rule, such an approach to Human Rights would likely conflict with the principle of certainty. Threshold deontology in contrast does provide a more consistent approach, viz. that a threshold must be met before certain action can be taken.
IX. A CONTRACTARIAN BASIS FOR HUMAN RIGHTS?
When living in a society the extent of a person’s freedom will be limited more than if they were in a state of nature; where an individual would be morally at liberty to punish someone who has wronged him/her103 . It is the famous notion of a social contract which justifies a limit on liberty under this theory. As Cummiskey notes, Contractualist theories link respect for the dignity of persons with some form of consent condition being met104 . This is because seeking consent respects autonomy. However, a number of issues arise as to what constitutes consent.
A Voluntaristic conception of consent requires every person in a society to consent to being subject to the government of that society105 . This would show significant respect for an individual’s autonomy although an individual would be brought up in the context of a society until the point they could rationally provide consent, and by this point they would have already been influenced by the society they live in. It does not appear theoretically possible or practical to seek actual consent. Even if an individual decided against being the subject of a society, the harm principle would engage society in preventing that individual from causing harm to the rest of society. Consequently, it appears that a literal conception of consent is not realistic as Rawls notes106 .
An alternative to the Voluntarist approach to consent is the Hypothetical approach107 . Rawls argued that a scheme which promotes the freedom and equality of individuals was as close as a society could come to a voluntary consent scheme108 . It would appear that a Liberal political climate which protects common concerns of human beings would be legitimate in regard to its respect for autonomy. Thus Human Rights based on human dignity vis-à-vis autonomy can be the standard against which governments are critically assessed. The problem is deciding what ‘common concerns’ to humanity are. The Liberal approach appears to be the best approach to adopt in order to promote tolerance in a diverse world. However, ‘conceptions of human dignity vary drastically across societies’109 . Even those which accept an autonomy based notion of human dignity may have different views on what should be permitted in a particular society. Nevertheless the final Section of this paper will argue that these problems can be resolved.
X. A HOLISTIC CONCEPTION OF HUMAN RIGHTS BASED ON DIGNITY CAN BE IDENTIFIED
It would seem that a relatively holistic conception of Human Rights can be developed based on human dignity. This holistic conception of Human Rights involves considering Human Rights in the context of the strongest philosophical foundations which have been outlined. From the onset it appears that there are a number of common concerns that would be of an interest to all people regardless of the society they are from. Beitz recognises that particular interests are culturally neutral and would include the protection of life from killings or torture on an unfounded basis110 . The rights which protect these interests (‘basic rights’111 ) have a very high value not because of an agreement between people but rather that these rights protect people from wrongs which, by their nature and consequences, are abhorrent to human beings112 . It has already been suggested in this paper that arguably no Human Right should be absolute but rather serve as a prima facie protection against abuse. The greater the importance of a right, the greater the justification required to depart from protecting the interest the right protects. This approach gives significant weight to an individual’s dignity without disregarding competing community interests. This approach gives significant weight to an individual’s dignity without disregarding competing community interests. These basic rights are Civil and Political (CP)rights. It has been argued by Ramsay that Economic, Social and Cultural (ESC) rights come from the same moral base as Civil and Political (CP) rights and can be properly regarded as Human Rights113 . While both ESC rights and CP rights significantly promote human dignity, Ramsay’s comment appears slightly misleading as a philosophical distinction can be made between the moral bases for (1) the basic CP rights and (2) the remaining CP rights and ESC rights. The duties relating to the basic CP rights do not necessarily (from a Kantian perspective)require action, as abstinence from action harmful to other people can potentially satisfy the duty114 . In contrast the duties relating to ESC rights (and admittedly some CP rights) necessarily require action in order for the duty to be satisfied115 . Positive obligations in respect of rights are desirable because they improve people’s lives and consequently should be encouraged, even the basic CP interests can be more broadly protected116 with ‘imperfect duties’117 . Despite this, duties which do not require active intervention into the lives of other people show the greatest respect for autonomy.
Unlike an interest not to be subject to torture, non-basic CP rights such asfreedom of expression will vary in their manifestation, depending on the part of the world an individual is from. What is the value of this category of rights? Freedom of expression does contribute to human developmentand in light of an increasingly globalised society it is in the interests of humanity as a whole for individuals to be aware of a variety of views/experiences118 . Griffin highlights that different cultures may require slight variations of the extent of freedom to expression, in order to safeguard the moral fibres of the society119 . Consequently, practicalities necessitate regional variations in non-basic CP interests120 . As Jahn121 and Beitz122 argue these interests could be exposed through greater talks with Eastern representatives and ultimately incorporate their views in a conception of Human Rights. The increased incorporation of Eastern views will mean that Liberal theory is being deployed in practice to a greater extent than currently is the case.
In conclusion, some dignity-based theories of Human Rights appear significantly stronger than others, and even some of these strong theories can be improved further in practice. Human Rights seem to have been born out of conceptions of human dignity and have emerged from the display of humankind’s horrific ability for self-destruction throughout the twentieth century. As Perry noted there was a need for a ‘moral lingua franca’ to prevent a recurrence of earlier atrocities123 . It was suggested that Utilitarianism does not provide a strong philosophical basis for Human Rights because it fails to provide significantly safeguard rights and also fails to respect the inherent dignity of persons. In contrast, it was argued that Liberalism, Threshold Deontology and the Contractarian Hypothetical approach to consent provided the strongest basis for a theory of Human Rights. However, there is a need to incorporate the views of Eastern peoples when considering the permissibility of cultural variations. It is the combination of these theories which provide a holistic way of understanding Human Rights. The key features of the holistic philosophical basis of Human Rights are: human beings have inherent dignity and worth based significantly on their rationality and autonomy; human beings should show equal concern and respect for each other; community interests should be balanced against individual interests;it is only after a threshold value of an individual interest has been passed that a competing community goal can triumph over it; the more important the interest is in protecting human dignity the higher the threshold will be;whether a threshold has been surmounted by a competing community goal will be assessed on an individual basis taking into account all the circumstances; the exposure of individuals to a variety of ways of life provides the best conditions for people to develop and choose how they live their own lives; a government’s respect for human dignity is vital in order to obtain legitimacy; there are a variety of basic human interests which exist irrespective of culture; rights which impose positive obligations on a duty bearer risk violating the duty bearer’s autonomy; positive obligations in respect of rights are desirable should be encouraged. A holistic understanding of the philosophical foundations of Human Rights is vital because it can be used to properly identify a hierarchy of Human Rights and framework to assist in the solving of complex Human Rights related dilemmas.
A proper appreciation of the philosophical foundations of the most important rights would hopefully lead to near universal acceptance of these rights. The appalling on-going humanitarian situation in Syria has failed to be addressed partly due to a lack of international unity on the issue124 . This is despite the fact that human dignity is being starkly undermined in the region125 . The situation is indeed politically delicate however a holistic understanding of the philosophical foundations of Human Rights could potentially assist in tackling the problem in Syria (and similar situations) by facilitating the development of a united international conscience to a greater extent than any which currently exists (if one exists at all126 ). In the context of the important but non-basic right of freedom of expression, the appreciation that various groups of people express themselves in particular ways because they consider that expression to be part of their identity means that non-harmful forms of expression which are not common in a society should be more readily accepted in that society. Further, the fact that Liberalism itself prospers when a larger rather than smaller variety of views are expressed would also endorse a policy of acceptance rather than rejection. It is true that for interests relating to rights to be widely safeguarded, positive obligations on various duty holders are required. The threat to autonomy posed by positive obligations has been discussed in this paper. However, a holistic understanding of human dignity is likely to encourage people to exercise their autonomy and take up such positive obligations. It seems fitting to conclude this paper with the following poem by Pastor Martin Niemoller:
‘First they came for the Communists
And I did not speak out
Because I was not a Communist
Then they came for the Socialists
And I did not speak out
Because I was not a Socialist
Then they came for the trade unionists
And I did not speak out
Because I was not a trade unionist
Then they came for the Jews
And I did not speak out
Because I was not a Jew
Then they came for me
And there was no one left
To speak out for me’127
*This article is based on a paper written to fulfil the coursework requirement of the author’s Philosophical Foundations of Human Rights and Criminal Justice module, University of Nottingham, from where he graduated with the LLM International Criminal Justice and Armed Conflict in December 2012.
**LLB (University of Warwick 2011), LLM (University of Nottingham 2012). The author is currently a BPTC candidate at Nottingham Trent University (Nottingham Law School) and is co-founder/ co-chair of ‘Inspire4Justice’ a Human Rights and social justice organisation which aims to help people achieve their full potential. The views expressed by the author in this paper do not necessarily reflect those of Inspire4Justice.The author would like to thank his parents George Heimler and Elisabetta Heimler as well as Emily Hurst, Jourdain Tambo and the anonymous reviewer for their constructive comments. The author would also like to thank his tutor Professor Paul Roberts from the University of Nottingham for his inspiring teaching during the delivery of the module that this paper is based on.
1 Kofi A Annan, ‘Secretary-General’s Address to the Commission on Human Rights’, 7 April 2005, United Nations
2 Jamie F Metzl, ‘Information Technology and Human Rights’ (1996) 18 (4) Human Rights Quarterly
3 Martin Rhonheimer, The Perspective of Morality: Philosophical Foundations of Thomistic Virtue Ethics, (Catholic University of America Press 2011), at p236
4 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, at Preamble
5 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), at Preamble
6 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol 999, p171; UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol 993, p3
7 UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973
8 Michael J Perry, Toward a Theory of Human Rights, (Cambridge University Press 2006) at p3
9 Donald Bloxham and A Dirk Moses (ed.) The Oxford Handbook of Genocide Studies (Oxford University Press 2010)
10 Perry (n8) at p4
11 Winston Langley, Encyclopedia of Human Rights Issues Since 1945 (Greenwood Publishing Group 1999), at p.xii
12 See for examples: Plato, Philebus: A Dialogue Concerning the Chief Good of Man (The First Part) (Floyer Sydenham tr, London, Eighteenth Century Collections Online - British Library 1779)
13 John R. Searle, ‘Social Ontology and Free Speech’( Fall 2004) The Hedgehog Review 6 (3), p66 cited in Perry (n8) at p.xi
14 James Griffin, ‘First Steps in an Account of Human Rights’ (2001) 9 (3) European Journal of Philosophy
15 John von Doussa, ‘Reconciling Human Rights and Counter-Terrorism – A Crucial Challenge’ The Annual James Cook University Mayo Lecture (12 September 2006)
16 See for examples the Universal Declaration of Human Rights (n5) at Preamble, International Covenant on Civil and Political Rights (n6) at Preamble, and the International Covenant on Economic Social and Cultural Rights (n6) at Preamble
17 See UN Charter (n4) and Universal Declaration of Human Rights (n5)
18 Oxford English Dictionary (online), (Definition: ‘peace’) (2012)
20 Oscar Schacter, ‘Human Dignity as a Normative Concept’, (October 1983) The American Journal of International Law 77 (4)
21 Paul Gordon Lauren, The Evolution of International Human Rights- Visions Seen (3rd edn, University of Pennsylvania Press 2011) at p283
22 Oxford English Dictionary (n18) (Definition: ‘Human Being’) ‘a man, woman, or child of the species Homo sapiens, distinguished from other animals by superior mental development, power of articulate speech, and upright stance’.
23 Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (Aldershot 2001) at p12
24 Leif Wenar, ‘Rights’, The Stanford Encyclopedia of Philosophy (July, 2011)
25 Herbert Lionel Adolphus Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford University Press 1982) at p183
26 Joseph Raz, ‘On the Nature of Rights’ (1984) 93Mind
27 Ronald Dworkin, Taking Rights Seriously (Harvard University Press 1978) at p.xi
28 See Thomas Hobbes, The Leviathan (Andrew Crooke 1651) particularly Chapter 31 ‘Of the Kingdom of God by Nature’; John Locke, Two Treatises of Government (Awnsham Churchill, 1689) particularly Chapter 2 ‘Of the State of Nature’
29 Jeremy Bentham, ‘Anarchical Fallacies; Being an Examination of the Declarations of Rights Issued During the French Revolution’, The Works of Jeremy Bentham, Vol.2 (William Tait 1843)
30 Universal Declaration of Human Rights (n5) at Preamble
32 International Covenant on Civil and Political Rights (n6) at Preamble
33 James C Hathaway, The Law of Refugee Status (1st edn, Butterworths 1991) at p108
34 Consider for example Universal Declaration of Human Rights (n5) at Article 17 relating to the freedom from arbitrary deprivation of property. This right is not codified in either Covenant (n6).
35 Universal Declaration of Human Rights (n5) at Preamble
36 Jeremy Waldron, ‘Theoretical Foundations of Liberalism’ (April 1987) 37 (147) The Philosophical Quarterly
37 Dworkin (n27) at p.xv
38 John Stuart Mill, On Liberty (Cambridge University Press 1989, First Published 1851) at p13
39 Universal Declaration of Human Rights (n5) at Preamble
40 Peter Berger, ‘On the Obsolescence of the Concept of Honour’ in Michael Sandel (ed), Liberalism And Its Critics (New York University Press 1984), at p155
41 Griffin (n14) at p320
42 Will Kymlicka, Liberalism Community and Culture, (Clarendon Press 1989) at p13
43 Maureen Ramsay, What is wrong with Liberalism? (Leicester University Press 1997) at p32
44 Kymlicka (n42) at p1
45 Perry (n8) at p4
46 Peter Van Ness (ed), Debating Human Rights (Routledge 1999) at p11
47 Michael Sandel (n40) at p1
48 See for example Chu Shulong, ‘China, Asia and Issues of Sovereignty and Intervention’ (2001) 2(1) Pugwash Occasional Papers, IRChina
49 Charles R Beitz, ‘Human Rights as a common concern’ (June 2001) 95(2) American Political Science Review
50 Peter Van Ness (n46) at p27
51 Dan Jahn, ‘Comparing Conceptions of Human Rights’, (2006) The Pacem Foundation
52 Beitz (n49) at p281
53 The word ‘deontology’ derives from the Greek words for duty (deon) and science /study (logos) see Larry Alexander and Michael Moore, ‘Deontological Ethics’, The Stanford Encyclopedia of Philosophy (November 2007)
54 Immanuel Kant, Grounding for the Metaphysics of Morals (James W Ellington tr, 3rd edn Hackett Publishing 1993, first published 1785) at pp40-41
55 ibid at pp35-36
56 Manfred Nowak, ‘Challenges To The Absolute Nature of the Prohibition of Torture and Ill-Treatment’ (2005) 24(4) Netherlands Quarterly of Human Rights
57 Universal Declaration of Human Rights (n5) at Article 5; International Covenant on Civil and Political Rights (n6) at Article 7; Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS 5 at Article 3; UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p85 see particularly Article 2(2) ‘No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture’.
58 See Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Merits) 20 July 2012 General List No. 144
59 See Gafgen v Germany (Grand Chamber) App no 22978/05 (ECtHR, 1 June 2010) at para 
60 Kant, Grounding for the Metaphysics of Morals (n54) at p36
62 ibid at p30
63 ibid at p32
64 Immanuel Kant, General Introduction to the Metaphysic of Morals (William Hastie tr, University of Virginia Press 2004- first published 1887) at p33
65 See Michael Moore, ‘Torture and the Balance of Evils’ (1989) 23 (3) Isr.L.Rev
66 Larry Alexander and Michael Moore, ‘Deontological Ethics’ (n53)
67 There are many examples of people who did precisely this. See for example the true story of Corrie Ten Boom, The Hiding Place (35th Anniversary edn, Chosen Books Publishing Group 1985) at pp106-108
68 Griffin (n14) at pp314-315
69 Moore, ‘Torture and the Balance of Evils’ (n65) at p328
70 Griffin (n14) at p31
71 BVerfG, 1 BvR 357.05 of February 15, 2006. Cited in Kai Moller, ‘On Treating Persons as Ends: the German Aviation Security Act, Human dignity, and the German Federal Constitutional Court’, (Autumn 2006) 51 Public Law
72 Supreme Court of Israel: Judgment concerning the legality of the General Security Service’s Interrogation Methods (6th September 1999)
73 For discussion of the way such a threshold could be calculated see Section VI of this paper on Threshold Deontology.
74 Larry Alexander and Michael Moore, ‘Deontological Ethics’ (n53)
76 ibid; Jahn (n51) at p4; Kymlicka (n42) at p13
77 Bernard Williams and John Jamieson Carswell Smart, Utilitarianism: For and Against (Cambridge University Press 1973) at pp77-150 cited in Larry Alexander and Michael Moore, ‘Deontological Ethics’ (n53)
78 Griffin (n14) at p325
79 Geoffrey Brahm Levey, ‘Beyond Dukheim: A Comment on Steven Luke’s “Liberal Democratic Torture”’ (2007) 37 British Journal of Political Sciences
80 See generally Anthony Ellis, ‘Deontology, Incommensurability and the Arbitrary’, (1992) 52 (4) Philosophy and Phenomenological Research
81 See generally Larry Alexander, ‘Deontology at the Threshold’ (2000) 38 San Diego Law Review
82 Moore, ‘Torture and the Balance of Evils’ (n65) pp331-332
83 A Beldon Fields, Rethinking Human Rights for the New Millennium (Palgrave Macmillan 2003) at p73
84 Nowak (n56) at pp675-676
85 ibid at p676
86 Walter Sinnott-Armstrong, ‘Consequentalism’, The Stanford Encyclopedia of Philosophy (September 2011)
87 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (Batoche Books Kitchener Publishing 2000- first published 1781) at pp14-15
88 ibid at p15
90 Raj Raghunathan, ‘Which is More Important: Truth or Happiness?’ Sapient Nature (Sussex, 3 May 2011)
91 Roger Crisp (ed), J.S. Mill Utilitarianism (Oxford University Press 1998) at pp30-31
92 The phrase ‘empirical dodge’ was used often by one of my tutors- professor Paul Roberts to define this criticism of Act Utilitarianism while delivering a course on the ‘Philosophical Foundations of Human Rights and Criminal Justice’ at the University of Nottingham during 2012.
93 Crisp J.S. Mill Utilitarianism(n91)at pp30-31
94 ‘Outsmart’ definition, The Philosophical Lexicon (2008 edn)
95 John Rawls, A Theory of Justice (Revised Edition, Oxford University Press 1999) at p24
96 Jerome J Shestack, ‘The Philosophic Foundations of Human Rights’ (1998) 20 (2) Human Rights Quarterly
97 Roger Crisp, Routledge Philosophy Guidebook to Mill on Utilitarianism (Routledge 1997) at p24
98 ibid at p25; Mark Timmons, Moral Theory: An Introduction (Rowman & Littlefield 2012) at p124
99 Crisp,Routledge Philosophy Guidebook to Mill on Utilitarianism(n97)at p115
100 Gerald Barnes, ‘Utilitarianisms’ (October 1971) 82 (1) Ethics
101 Moore, ‘Torture and the Balance of Evils’ (n65) at p295
102 ibid at p296
103 Waldron (n36) at p136
104 David Cummiskey, ‘Dignity, Contractualism and Consequentialism’ (2008) 20 Utilitas
105 Waldron (n36) at pp136-138
106 John Rawls, A Theory of Justice (n95) at p12
107 Waldron (n36) p138
108 Rawls, A Theory of Justice (n95) at p12
109 Rhoda E Howard and Jack Donnelly, ‘Human Dignity, Human Rights, and Political Regimes’ (September 1986) 80 (3) The American Political Science Review
110 Beitz (n49) at p272
111 Henry Shue, Basic Rights: Subsistence, affluence, and U.S. Foreign Policy (2nd edn Princeton University Press, 1996) cited in Beitz (n49) at p272
113 Ramsay (n43) at p147
114 For example abstaining from subjecting others to torture.
115 See for example The creation of conditions which would assure to all medical service and medical attention in the event of sickness, Article 12(2)(d)International Covenant on Economic, Social and Cultural Rights (n6)
116 Consider for example the requirement implied into Article 2 (The Right to Life) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (n57) that ‘positive obligations therefore require States to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients' lives’, Calvelli and Ciglio v Italy (Grand Chamber)App no 32967/96 (ECtHR, 17 January 2002) at para .
117 See section V of this paper concerning Kantian Deontology.
118 See above discussion regarding Liberalism.
119 Griffin (n14) at p325
121 Jahn (n51) at p5
122 Beitz (n49) at p281
123 Perry (n8) at p4
124 Ian Black, ‘Kofi Annan Resigns as Syria Envoy: Syrian peace mission impossible because of militarisation on the ground and lack of international unity, says former head of UN’ The Guardian(London, 2 August 2012)
125 See Paulo Sergio Pinheiro and Karen Koning Abu Zayd, ‘Report of the Independent International Commission Of Inquiry on the Syrian Arab Republic’ Human Rights Council Twenty-First Sessions (16 August 2012) UN Doc A/HRC/21/50, particularly at pp12-13
126 Consider for example (Unknown Author) ‘World Not Fulfilling “Never Again” Vow, Secretary-General Tells General Assembly Meeting on Responsibility to Protect’ UN News Agency (New York, 5 September 2012)
127 Pastor Martin Niemoller, ‘First They Came’, cited at Holocaust Memorial Day Trust (2013) Resources, Poetry
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