1James W. Nickel
Human rights are international moral and legal norms that aspire to protect all people everywhere from severe political, legal, and social abuses. Examples of human rights are the right to freedom of religion, the right to a fair trial when charged with a crime, the right not to be tortured, and the right to engage in political activity. These rights exist in morality and in law at the national and international levels. They are addressed primarily to governments, requiring compliance and enforcement. The main source of the contemporary conception of human rights is the Universal Declaration of Human Rights (United Nations, 1948b) and the many human rights documents and treaties that have followed in its wake.
1;The General Idea of Human Rights
The Universal Declaration of Human Rights (UDHR; United Nations 1948b) sets out a list of
over two dozen specific human rights that countries should respect and protect. We may group these specific rights into six or more families: security rights that protect people against crimes
such as murder, massacre, torture, and rape; liberty rights that protect freedoms in areas such as
belief, expression, association, assembly, and movement; political rights that protect the liberty to
participate in politics through actions such as communicating, assembling, protesting, voting, and serving in public office; due process rights that protect against abuses of the legal system such as
imprisonment without trial, secret trials, and excessive punishments; equality rights that guarantee
equal citizenship, equality before the law, and nondiscrimination; and welfare rights (or
"economic and social rights") that require provision of education to all children and protections against severe poverty and starvation. Another family that might be included is group rights. The
UDHR does not include group rights, but subsequent treaties do. Group rights include protections of ethnic groups against genocide and the ownership by countries of their national territories and resources.
The general idea of human rights can be explained by setting out some defining features. It answers the question of what human rights are with a general description of the concept rather than a list of specific rights. Two people can have the same general idea of human rights even though they disagree about whether some particular rights are human rights.
1 Jim Nickel has published widely in philosophy and law journals. He joined the faculty at ASU College of Law in 2003 after 21 years as Professor of Philosophy at the University of Colorado, Boulder. Nickel has been a visiting professor at the UC Berkeley School of Law (Boalt Hall) and at the University of Utah. At the University of Colorado Nickel served as Director of the Center for Values and Social Policy from 1982-88 and as Chair of the Philosophy Department from 1992-1996. Nickel has received many fellowships including a National Endowment for the Humanities Fellowship, a Rockefeller Foundation Humanities Fellowship, an ACLS Fellowship, and a National Humanities Center Fellowship. In fall 2004 he was a Visiting Fellow at Corpus Christi College, Oxford University. Nickel was recently awarded the Philosophical Quarterly's 2004 essay prize for his paper, "Poverty and Rights."
Human rights are political norms dealing mainly with how people should be treated by their governments and institutions. They are not ordinary moral norms applying mainly to
interpersonal conduct (such as prohibitions of lying and violence). As Thomas Pogge puts it, "to engage human rights, conduct must be in some sense official" . But we must be careful here since some rights, such as rights against racial and sexual discrimination are primarily concerned to regulate private behavior. Still, governments are directed in two ways by rights against discrimination. They forbid governments to discriminate in their actions and policies, and they impose duties on governments to prohibit and discourage both private and public forms of discrimination.
Second, human rights exist as moral and/or legal rights. A human right can exist as a shared
norm of actual human moralities, as a justified moral norm supported by strong reasons, as a legal right at the national level (here it might be referred to as a "civil" or "constitutional" right), or as a legal right within international law. The aspiration of the human rights movement is that all human rights will come to exist in all four ways.
Third, human rights are numerous (several dozen) rather than few. John Locke's rights to life,
liberty, and property were few and abstract, but human rights as we know them today address specific problems (e.g., guaranteeing fair trials, ending slavery, ensuring the availability of education, preventing genocide.) They protect people against familiar abuses of fundamental human interests. Because many concern contemporary institutions and problems they are not
transhistorical. One could formulate human rights abstractly or conditionally to make them transhistorical, but the fact remains that the formulations in contemporary human rights documents are neither abstract nor conditional. They presuppose criminal trials, governments funded by income taxes, and formal systems of education.
Fourth, human rights are minimal standards. They are concerned with avoiding the terrible
rather than with achieving the best. Their focus is protecting minimally good lives for all people. Henry Shue suggests that human rights concern the "lower limits on tolerable human conduct" rather than "great aspirations and exalted ideals". As minimal standards they leave most legal and policy matters open to democratic decision-making at the national and local levels. This allows them to accommodate a great deal of cultural and institutional variation.
Fifth, human rights are international norms covering all countries and all people living today.
They are the sorts of norms that are appropriately recommended to all countries. International law plays a crucial role in giving human rights global reach. We can say that human rights are
universal provided that we recognize that some rights, such as the right to vote, are held only by adult citizens; that some human rights documents focus on vulnerable groups such as children, women, and indigenous peoples; and that some rights, such as the right against genocide, are group rights.
Sixth, human rights are high-priority norms. As Maurice Cranston put it "A…test of a human
right…is the test of paramount importance." "A human right is something of which no one may be deprived without a grave affront to justice". This does not mean, however, that we should take human rights to be absolute. As James Griffin says, human rights should be understood as "resistant to trade-offs, but not too resistant". The high priority of human rights needs support from a plausible connection with fundamental human interests or powerful normative considerations.
Seventh, human rights have robust justifications that apply everywhere and support their
high priority. Without this they cannot withstand cultural diversity and national sovereignty. Robust justifications are powerful but need not be understood as ones that are irresistible.
Eighth, human rights are rights, but not necessarily in a strict sense. As rights they have
several features. One is that they have rightholders -- a person or agency having a particular right. Broadly, the rightholders of human rights are all people living today. More precisely, they are sometimes all people, sometimes all citizens of countries, sometimes all members of groups with particular vulnerabilities (women, children, racial and religious minorities, indigenous peoples), and sometimes all ethnic groups (as with rights against genocide.) Another feature of rights is that they focus on a freedom, protection, status, or benefit. A right is always to something which is the
focus of the rightholders' interest. Rights also have addressees who are assigned duties or
responsibilities. A person's human rights are not primarily rights against the United Nations or other international bodies; they primarily impose obligations on the government of the country in which the person resides or is located. The human rights of a citizen of Belgium are mainly addressed to his government. International agencies, and the governments of countries other than one's own, are secondary or "backup" addressees. International human rights organizations provide encouragement, assistance, and sometimes criticism to states in order to assist them in fulfilling their duties. The duties associated with human rights typically require actions involving respect, protection, facilitation, and provision. Finally, rights are usually mandatory in the sense
of imposing duties on their addressees, but they sometimes do little more than declare high-priority goals and assign responsibility for their progressive realization. For example, the International Covenant on Economic, Social, and Cultural Rights, which covers rights to basic human needs such as food, clothing, housing, and education, commits its signatories to "take steps...to the maximum of...available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant…." It is possible to argue, of course, that goal-like rights are not real rights, but it may be better to recognize that they compromise a weaker or looser notion of a right.
Having set out a general idea of human rights with eight elements, it is useful to consider three other candidates which I think should be rejected. The first is the claim that all human rights are negative rights, in the sense that they only require governments to refrain from doing things. On this view, human rights never require governments to take positive steps such as protecting and providing. This claim is not compatible with the attractive view that one of the main jobs of governments is to protect people's rights by creating a system of criminal law and of legal property rights. The European Convention on Human Rights incorporates this view when it says that "Everyone's right to life shall be protected by law" (Article 2.1). And the UN Torture Convention (United Nations 1984) imposes the requirement that "Each State Party shall ensure that all acts of torture are offences under its criminal law" (Article 4.1).
A second claim to be rejected is that human rights are inalienable. Inalienability does not
mean that rights are absolute or can never be overridden by other considerations. To say that a right is inalienable means that its holder cannot lose it temporarily or permanently by bad conduct or by voluntarily giving it up. I doubt that all human rights are inalienable in this sense. If we believe in imprisonment for legal crimes, then people's rights to freedom of movement can be forfeited temporarily or permanently by just convictions of serious crimes. And the right to
freedom of movement can be voluntarily alienated by a person who makes a lifelong commitment to live in a monastery. Human rights are not inalienable but they are hard to lose.
Third, I think we should reject John Rawls' proposal in The Law of Peoples that by definition
human rights define where legitimate toleration of other countries ends. Rawls says that human
rights "specify limits to a regime's internal autonomy" and that "their fulfillment is sufficient to exclude justified and forceful intervention by other peoples, for example, by diplomatic and economic sanctions, or in grave cases by military force".
It is a grave oversimplification to suggest that there is a line defined by human rights where national sovereignty ends. There is no need to deny that human rights are helpful in identifying the limits of justifiable toleration, but there are several reasons to doubt that they simply define that boundary. First, the "fulfillment" of human rights is a very vague idea. No country fully satisfies human rights; all countries have significant human rights problems. Some countries have large human rights problems, and many have massive problems ("gross violations of human rights"). Beyond this, the responsibility of the current government of a country for these problems also varies. The main responsibility may belong to the previous government and the current government may be taking reasonable steps to move towards greater compliance.
Further, defining human rights as norms that set the bounds of toleration requires restricting human rights to only a few fundamental rights. Rawls suggests the following list: "the right to life (to the means of subsistence and security); to liberty (to freedom from slavery, serfdom, and forced occupation, and to a sufficient measure of liberty of conscience to ensure freedom of religion and thought); to property (personal property); and to formal equality as pressed by the rules of natural justice (that is, that similar cases be treated similarly)". As Rawls recognizes this list leaves out most freedoms, rights of political participation, equality rights, and welfare rights. Leaving out any protection for equality and democracy is a high price to pay for assigning human rights the role of setting the bounds of tolerance, and we can accommodate Rawls' underlying idea without paying it. The underlying idea is that countries with massive violations of the most important human rights are not to be tolerated -- particularly when the notion of toleration implies, as Rawls thinks it does, full and equal membership in good standing in the community of nations. But to use this idea we do not need to follow Rawls in equating human rights with some radically stripped down list of human rights. Instead we can develop a doctrine -- which is needed for other purposes anyway -- of which human rights are the most important. Massive violations of the most fundamental rights can then be used as grounds for non-tolerance.
2. The Existence of Human Rights
The most obvious way in which human rights exist is as norms of national and international law created by enactment and judicial decisions. At the international level, human rights norms exist because of treaties that have turned them into international law. For example, the human right not to be held in slavery or servitude in Article 4 of ECHR and in Article 8 of ICCPR exists because these treaties enact it at the international level. At the national level, human rights norms exist because they have through enactment, judicial decision, or custom become part of a country's law. For example, the right against slavery exists in the United States because the Thirteenth Amendment to the US Constitution prohibits slavery and servitude. When rights are embedded in international law we speak of them as human rights; but when they are enacted in national law we
more frequently describe them as civil or constitutional rights. As this illustrates, it is possible for a right to exist within more than one normative system at the same time. The human rights movement aspires to see its international norms enacted in the constitutions and laws of countries around the world.
Enactment in national and international law is one of the ways in which human rights exist. But many have suggested that this is not the only way. If human rights exist only because of enactment, their availability is contingent on domestic and international political developments. Many people have sought to find a way to support the idea that human rights have roots that are deeper and less subject to human decisions than legal enactment. One version of this idea is that people are born with rights, that human rights are somehow innate or inherent in human beings. One way that a normative status could be inherent in humans is by being God-given. The US Declaration of Independence (1776) claims that people are "endowed by their Creator" with
natural rights to "life, liberty, and the pursuit of happiness." On this view, God is the supreme lawmaker and enacted some basic human rights.
Rights plausibly attributed to divine decree must be very general and abstract (life, liberty, etc.) so that they can apply to thousands of years of human history, not just to recent centuries. But contemporary human rights are more numerous and specific (the right to a fair trial, the right to freedom of religion, the right to equality before the law, etc.) Even if people are born with God-given natural rights, we need to explain how we get from those general and abstract rights to the specific rights found in contemporary declarations and treaties. Attributing human rights to God's commands may give them a secure status at the metaphysical level, but in a very diverse world it does not in fact make them practically secure. Billions of people do not believe in the God found in Christianity, Islam, and Judaism. If people do not believe in God, or in the sort of god that prescribes rights, then if you want to base human rights on theological beliefs you must persuade these people of a rights-supporting theological view, which is likely to be even harder than persuading them of human rights. Legal enactment at the national and international levels provides a far more secure status for practical purposes.
Human rights might also exist independently of legal enactment by being part of actual human moralities. It appears that all human groups have moralities, that is, imperative norms of behavior backed by reasons and values. These moralities contain specific norms (e.g., a prohibition of the intentional murder of an innocent person) and specific values (e.g., valuing human life.) One way in which human rights could exist apart from divine or human enactment is as norms accepted in all or almost all actual human moralities. If almost all human groups have moralities containing norms prohibiting murder, these norms could constitute the human right to life. Human rights can be seen as basic moral norms shared by all or almost all accepted human moralities.
This view is attractive but filled with difficulties. First, it seems unlikely that the moralities of almost all human groups agree in condemning, say, torture, unfair criminal trials, undemocratic institutions, and discrimination on the basis of race or sex. There is a lot of disagreement among countries and cultures about these matters. Human rights declarations and treaties are intended to change existing norms, not just describe the existing moral consensus. Second, it is far from clear that the shared norms that do exist support rights held by individuals. A group may think that torture is generally a bad thing without holding that all individuals have a high-priority right against being tortured. Third, human rights are mainly about the obligations of governments.
Ordinary interpersonal moralities often have little to say about what governments should and should not do. This is a matter of political morality, and depends not just on moral principles but also on views of the dangers and capacities of the contemporary state.
Yet another way of explaining the existence of human rights is to say that they exist in true or justified moralities. On this account, to says that there is a human right against torture is just to say that there are strong reasons for believing that it is almost always wrong to engage in torture. This approach would view the UDHR as attempting to formulate a justified political morality. It was not merely trying to identify a preexisting moral consensus; it was also trying to create a consensus on how governments should behave that was supported by the most plausible moral and practical reasons. This approach requires commitment to the objectivity of moral and practical reasons. It holds that just as there are reliable ways of finding out how the physical world works, or what makes buildings sturdy and durable, there are ways of finding out what individuals may justifiably demand of governments. Even if there is little present agreement on political morality, rational agreement is available to humans if they will commit themselves to open-minded and serious moral and political inquiry. If moral reasons exist independently of human construction, they can when combined with premises about current institutions, problems, and resources generate moral norms different from those currently accepted or enacted. The UDHR seems to proceed on exactly this assumption. One problem with this view is that existence as good reasons seems a rather thin form of existence for human rights. But perhaps we can view this thinness as a practical rather than a theoretical problem, as something to be remedied by the formulation and enactment of legal norms. After all, the best form of existence for human rights would combine robust legal existence with the sort of moral existence that comes from being supported by strong moral and practical reasons.
3. Which Rights are Human Rights?