Discussion

1. Where Do Human Rights Come From
2. Religion
3. Natural Law
4. Natural Rights
5. Legal Positivism
6. Marxism/Socialism
7. Controversy
8. References

The controversy over the source(s) of human rights

Which of these theories, if any, underlie the rights articulated in the Universal Declaration of Human Rights

As already noted, the language of the first recital bears not only a striking resemblance to the French Declaration, which "recognizes and proclaims…[the] natural, inalienable, and sacred rights of man," but also to several key Enlightenment Bills of Rights. Professor Imre Szabo claims that "the starting point of human rights in the modern sense of the term is to be found both in the "Declaration of the Rights of Man and of the Citizen," voted during the French Revolution, and in the social conditions underlying it." The political scientist Johannes Morsink argues that the philosophy of the Universal Declaration of Human Rights was linked to the French Declaration of 1789, but that 18th century deism has been replaced by 20th century secular humanism (Morsink, 475).

Avoidance of High-level theory

The Universal Declaration is perhaps best regarded as an authoritative interpretation of the term “fundamental human rights” referred to in the Preamble and Articles 1, 55, and 56 of the UN Charter. However, like the Charter, the Declaration does not invoke any single philosophical basis or theory of human rights. As suggested by Henkin "[w]e are not told what theory justifies "human dignity" as the source of rights, or how human dignity is defined or its needs determined or how preserving human rights will promote peace in the world" (Henkin, Age of Rights, 282). Henkin explains the apparent void of an agreed human rights theory in the Declaration by the fact that

"international human rights are not the work of philosophers, but of politicians and citizens, and philosophers have only begun to try build conceptual justifications for them. The international expressions of rights themselves claim no philosophical foundation, nor do they reflect any clear philosophical assumptions; they articulate no particular moral principles or any single, comprehensive theory of the relation of the individual to society. That there are "fundamental human rights" was a declared article of faith, "reaffirmed' by "the peoples of the United Nations" in the United Nations Charter. The Universal Declaration of Human Rights, striving for a pronouncement that would appeal to diverse political systems governing diverse peoples, built on that faith and shunned philosophical exploration."³

A theory based on human dignity

Although the drafters may have avoided the philosophical difficulties inherent in formulating an agreed human rights theory for the Declaration, many scholars claim that the document does indeed provide an ideological basis of human rights – the idea of human rights as rooted in and justified by the principle of “human dignity” (as suggested in the Preamble’s opening words).

The concept of human dignity as a source of rights long pre-dates the drafting of the Universal Declaration. The Enlightenment philosopher Immanuel Kant believed rights to be an inherent part of human dignity. In his Foundations of the Metaphysics of Morals, he endorsed the idea that one should "treat humanity, whether in your own person or in that of another, always as an end and never as a means only." Since human dignity of an individual is dependent on the morality of others, Kant urged humans to "always judge their actions by such maxims as they themselves could will to serve universal laws."

Countless modern thinkers have maintained this idea, and defended it in different ways. In general, this idea of the dignity of the individual has the logical status of a moral (or religious) axiom which is basic, ultimate and overriding, offering a general justifying principle in moral argument (Lukes, The Dignity of Man, 50-1).

In this sense then, the idea and ideology of human rights reflects a contemporary political morality, a conception of the purposes of government, political principles governing the relation of the individual to political authority and beneath them moral principles governing relations between human beings (Human Rights, 276). To have a right is to have a claim against someone whose recognition as valid is called for by some set of governing rules or moral principles. To have a claim in turn, is to have a case meriting consideration, that is, to have reasons or grounds that put one in a position to engage in performative and propositional claiming. The activity of claiming, finally as much as any other thing, makes for self-respect and respect for others, and gives a sense to the notion of personal dignity (Feinberg, The Nature of Value and Rights, 185).

References for this section

For more on the sources of human rights, see Jerome Shestack, “The Jurisprudence of Human Rights” in Human Rights in International Law, Chapter 3. (Theodor Meron., ed.); Paul Gordon Lauren, The Evolution of Human Rights: Vision Seen.

Famous documents outlining the theory of natural rights are John Locke, Second Treatise of Government (1690) and Immanuel Kant, Foundations of the Metaphysics of Morals.

For more on legal positivism and Bentham see Waldron, Jeremy, Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man.

For more on a modern conception of human rights see Jack Donnelly, Universal Human Rights in Theory and Practice (1989).

Endnotes

3. Henkin, Age of Rights, 6.