We live in a world increasingly dominated by struggles for human rights. In the past four months human rights activists have rocked the Arab world. People who have been long oppressed and excluded from civil rights have removed dictators in some nations and continue to fight for their rights in others.
In India, civil society is on fire struggling for the right to a corruption free state and for the protection of agricultural and tribal lands. President Obama places human rights at the centre of the relationship between the USA and China.
Rights and responsibilities of individuals, families, clans, tribes, communities and nations are part of all human cultures and societies from primeval times. Human communities ordered themselves with entitlements and responsibilities.
The contemporary development of human rights
The first global affirmation of human rights is the United Nations Declaration on Human Rights of 1948. It was put together by the secretariat of the UN in 1947 and a four-member team made up of Eleanor Roosevelt (USA), Professor Cassen (France), Chang Pang Chung (China) and Charles Malik (Lebanon) drafted the articles. Charles Malik drew strongly on his Christian tradition and the Bible.
However the document was seen as drawing from western cultural and philosophical traditions like the French Declaration of the Rights of Man and of the Citizen of 1789. This judgement led to increasing distance from these formulations in the Muslim and Chinese worlds.
The first generation of human rights of 1948 was mainly concerned with civil and political rights. In the 1960s the second generation of human rights focussed on economic, social and cultural rights. Two conventions were adopted in 1966, the International Convention of Civil and Political Rights and the International Convention on Economic, Social and Cultural Rights. In the 1980s collective or solidarity rights were added as the third generation of rights.
The list of rights became very long and included all living creatures. For example, article 24 of the UNDHR (United Nations Declaration on Human Rights) says that everyone has a right to a vacation with pay. Due to such an expansion and intrusion into cultures and nations, opposition to rights talk is widespread. It is the most contested part of our contemporary moral vocabulary and even in Europe where it was taken for granted for a long time, it is now being vigorously challenged.
In the non-western world, many who oppose rights language argue that it is based on western individualism that neglects and weakens our social relationships and our embeddings in communities. Many also call for reasonableness and do not reject rights outright.
Dr Joan O’Donovan identifies the main issue “ of rights as promoted in contemporary society is that subjective rights are understood to be original – inherent to (humans) as persons and not derived from divine or natural law.” (Quoted in Wolterstorff “Justice, Rights and Wrongs” p 31.
UNESCO sponsored many conferences on cultural and religious traditions in relation to Human Rights. A long list is provided in “Philosophical Foundations of Human Rights” (Paris, UNESCO, 1986). But the Meta narrative of universal human rights was not vigorously challenged or modified in these consultations. Countries were encouraged to affirm the declaration, ratify the conventions and also incorporate the provisions of the conventions into their national constitutions.
The Declaration (UNDHR) is a standard and not a legal agreement. USA has ratified it but not signed it.
Some nations have developed their own charters and action plans for human rights. In 2009, China announced a National Human Rights Action Plan (NHRAP). Some commentators see it as words, but not many deeds. In 2008 there was a Charter of Liu Xiabo, again on Human Rights.
Islamic countries adopted the ‘Cairo Declaration on Human Rights in Islam’ in 1990. It affirmed Islamic Sharia as the sole source from which an Islamic version of Human Rights should be developed. The key movers in this are Sudan, Iran and Saudi Arabia who critiqued the UN Declaration as a secular understanding of the Judaeo-Christian tradition.
There is the Edinburgh Declaration of the Scottish Human Rights Commission that focuses on the compliance of human rights law by national and international businesses. It was a joint statement with the International Co-ordinating Committee (ICC) of National Institutions for the Promotion and Protection of Human Rights. It was adopted in October 2010. The Pune Declaration on “Education for Human Rights in Asia and the Pacific” adopted in February 1999 in Pune , India is another statement. This stressed the role of the family in human rights education in Asia.
The Organisation of African Unity adopted the African Charter (Banjul) on Human and People’s Rights in June 1981. It came into force in 1986. In October 2002, the Africa Commission on Human and People’s Rights adopted a Declaration of Principles on Freedom of Expression in Africa, In November 2008, the Pan-African Human Rights Conference held in Accra, Ghana adopted the Accra Declaration on Human Rights in Africa that stressed the deterioration of human rights in Africa.
There is a Kampala Declaration of August 2002 produced at the 4th Conference of African National Human Rights Institutions. It stressed conformity to the Paris Principles and the management of human rights conflicts.
The Abuja Declaration of April 2001 on HIV/AIDS, Tuberculosis etc has a strong human rights thrust.
There are several more that can be listed. It is obvious that reflecting on human rights in application to every area of personal and community life has been widespread in the past thirty years. It also highlights the need for the church to make its impact into the debates in a substantial way.
Human Rights: Approaches and Issues
Human Rights are widely understood to mean that all human beings have fundamental entitlements. These are either conferred by God, tradition, community or state or inherent to every person alive on earth due to their natural state as human beings: they are inherent natural rights.
Rights are also defined as “normative social relationships. A right is with regard to someone, toward the other, with regard to the other.” (Wolterstorff: Justice, Rights and Wrongs 2008 p. 2). Rights are boundary markers. My right cannot be at the cost of someone else’s. .
I intend to explore two issues with regard to human rights. One is about the nature of rights as inherent and subjective (rights that belong to persons as subjects) and rights as derived or conferred by either a right order that God institutes by revealing his will and purpose for humans or an order that communities construct themselves.
The second issue is: Are rights universal or culturally determined? Are rights a universal category and not an arbitrary social construction? Are rights based on universal human values? Do such values exist? If they do, can we identify them?
Inherent or Conferred?
For many rights activists the issue of whether rights are natural and inherent or conferred or constructed is not significant. The acknowledgement that all humans have rights is adequate for their advocacy and action.
From a Christian perspective, I believe this is a critical issue as it reflects a view of human personhood that is the basis for human rights. Nicholas Wolterstorff in his study of “Justice, Rights and Wrongs” argues that human rights are moral rights and notes that “there are two ways of accounting for/establishing moral rights. One grounds them in duties and the other in respect for persons/ the worth of humans as persons. He quotes Paul Ramsey, the ethicist: “If human rights are the rights of fellow humanity, ‘inalienably’ connected with the human nature in us and with our life with fellow man and with our duties to the other man, then rights must be whatever it is necessary for me to have in order to be with and for fellow man.” As humans we are created to live in covenant with other humans, rights are a basic condition of that life (p. 242, 244).
Several contemporary philosophers reject the idea of natural or inherent rights. Alasdair MacIntyre says: “ There will not be and cannot be natural rights possessed independently of institutional arrangements.” (Quoted in Wolterstorff Justice etc p 32).
H.L.A. Hart in his influential work “Are there any natural rights?” (1985) Sees natural rights as an invention of the European Enlightenment and mere social constructions.
Human Rights ideas are traced to John Locke, Hobbes, Rousseau, Kant and Hume not as natural rights but as an arbitrary social construction. This means that only societies that accept them can apply them.
The argument for rights appealed to human reason that was considered as universal. Another argument appealed to the idea of a person. Charles Taylor the philosopher writes: “ the notion of a person is defined by certain capabilities; a person is an agent who has a sense of self, of his/her own life, who can evaluate it and make choices. This is the basis of the respect we owe persons.” (C Taylor “Human agency and Language” Philosophical Papers CUP 1985 p 103.) Taylor identifies two views of persons. One sees a person as a subject, a being with consciousness; the other sees persons primarily as agents – who have purposes and goals that they seek to fulfil.
As entities with a sense of self and with agency of purpose persons have worth in themselves and so also rights due to that worth. Immanuel Kant’s view of persons focussed on agency and duty. Persons are ends for him and not means. He insisted on the dignity of the individual and only those things must be done that produce the best possible consequences for individuals (cf David Cummingley “Kantian Consequentialism” OUP 1196.) Kant rejected any moral principle that justified actions by appealing to consequences of actions. His influence on secular rights theories is still very significant.
According to Kant, the business of the state is to preserve and protect rights and freedom and not to facilitate the pursuit of the good life (Martha Nussbaum: “The Quality of Life” Clarendon, Oxford 1992, p 56). For Kant, the supreme right was the right to freedom that was necessary for the exercise of other rights. This right was not dependent on the consequences of its use. It could not be modified or restricted by consequences. So interfering with rights is interfering with freedom.
Kant ascribes to human beings fundamental capacities in humanity and personality apart from the physical body. Personality is the rational capacity to respect moral law. Humanity is the capacity to set goals through reason and not just by mere impulse. These capacities give humans worth and dignity,
Kant conceded that a state could be coercive in enforcing rights if that action is to protect and promote individual freedom. With him we see the start of ranking of rights.
The other view sees rights as conferred / endowed and operative. It rejects that rights are natural, that they exist independent of institutions and verification. They do not have ontological objectivity. Rights become operative in a received or contracted social order where they have legislatively legal sanction and legitimacy. The focus here is on persuasion and power. In the operation of such rights we find two approaches.
Those who reject the inherent rights view propose that rights are derived from a right order which society receives fro God or develops on its own to reflect something transcendent. It is asserted that an individual does not have rights because he is one. Any rights he has are part of the relationships within the structure of the community he belongs. Those rights cannot become his personal possessions and exist prior to his communal relationships.
There are two main approaches to understanding the place of human rights today.
One approach is interest based (Joseph Raz and James Griffin). It begins with the assumption that some liberties and moral goods are necessary for human beings to experience a minimum of well being. Human Rights are those moral goods and liberties.
The other approach is agency based. Amartya Sen and Martha Nussbaum understood human rights through their capability theory that sees people as agents with a capacity to act. They suggested that policies that promote individual freedom to act and opportunity to seek goods each person feels will achieve their goals, will promote human flourishing and wellbeing. Human agency is integrally connected to social engagement. By agency is meant the following” features (both conditions and capabilities) that allow and facilitate human action”. Certain goods are necessary for human action. Scholars like Nussbaum draw up lists of such goods and Michael Boylan lists them in a hierarchical order. Food, shelter and water are the most basic and these are seen as essential right entitlements that must shape public policy and shape allocation of public funds.
Universal Character of Human Rights
The other issue that I will describe is the nature of human rights as universal. Should NATO or the UN intervene in Libya, Bahrain and Syria on the basis of a judgement that applies the UN Declaration of Human Rights and its universal understanding to their particular context? China would assert that NATO couldn’t apply its categories as universal to judge these countries. If each culture follows its own conventions, even if they have been followed over several generations and have given a measure of security and enabled a reasonable quality of life, should we not recognise its particularity even if it makes human rights culturally relative?
The need to affirm the universal character of human rights has led mainly western rights promotion organisations to work on demonstrating their universality.
Approaches to establishing universality focus on universal values and universal moral reasoning.
Values are generally described as those which a) function as standards, b) serve the interest of a community (social entity) c) moderate action and d) are acquired through community and individual experience. Universal values are those that have equivalence across cultures and also have identifiable structures of relations between different values.
J Schwartz lists the following as universal values after extensive research in 56 countries: power, achievement, hedonism (pleasure) stimulation (excitement), self-direction (independent thought and action), universalism (appreciation for others), benevolence (care for others), tradition (respect/commitment), conformity (restraint) and security.
Other scholars who have researched cross-culturally also have developed their own lists of what they find are common values across cultures.
Another approach to legitimising universality is to stress the ontological objectivity of rights. By ontology we mean what exists and in what mode. Abstract entities like love, freedom etc also exist like material entities of trees and rocks but in a different mode. So it is asserted that rights exist as abstract entities, independent of their function.
The Christian appeal to universality is founded in the doctrines of God and creation. A human made in God’s image affirms universal capabilities, agency and worth.
Application Of Human Rights
We move to a consideration of the application and use of human rights in some selected areas. We began with the area of development and social action where rights usage has a significant place.
The Human and Community Development Context
In the development context – which focuses on poverty reduction – rights based approaches began to dominate since 2000 A.D. The Human Development Report 2000: Human Rights and Human Developments of the United Nations Development Programme (UNDP) shaped this development by giving priority to a rights based approach over against the needs based approaches of the previous two decades.
Another document that strongly influenced development thinking, strategy and action is the paper by the Department for International Development (DFID.UK) “Realizing Human Rights for poor people” (2000). This provided a framework for the application of Human Rights in addressing poverty. It promoted three principles: participation, inclusion and fulfilling obligation. Later these were expanded in the “Draft Guidelines: A Human Rights approach to Poverty Reduction Strategies (Office of the High Commissioner for Human Rights (2002).
The use of human rights in the context of human development extended the scope of human rights from the legal and political spheres to economic and social / cultural. The breadth of rights stretched from basic livelihood security to the right to appear in public without being shamed (OHCHR 2002 pp 42-43).
Those who followed rights based approaches in the area of human development did not bother whether rights were externally inferred, even divinely endowed, socially constructed or inherent to human persons. They accepted them as a universal given drawing their authority from internationally endorsed and accepted agreements and covenants like the Universal Declaration of Human Rights (UN 1948), The International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966) all from the United Nations.
The focus for development activists has been on a) the poor who enjoy and express few of these rights and b) institutions and power that have the responsibility and obligation to uphold, implement and enforce these rights.
In the past twenty years, a number of other ideas and concepts have entered into the human development arena. From the seventies to the mid-nineties, needs based approaches dominated. Ideas such as participation were expressed in participatory rural analysis (PRA), Participatory Learning and Action (PLA), Participatory Poverty Assessments (PPA) and Participatory Rights Assessments and Methodologies (PRAMs). Community Development works in the 1970s in Africa was influenced by the ideas of participation drawing from the work of Paulo Friere (1970) and development thinking in Latin America. The participatory stream strengthened in the 1980s and was in full flow in the 1990s. It grew rapidly in East Africa and India. Research and publications emerged from there. In 2001 the participatory approach was criticised in a new work: Participation: The New Tyranny? (Cooke and Kothari). It was criticised as more marketing than method, a perennial problem in development work.
The Millennium Development Goals (MDGs) became central for development thinking since 2000. Every document now has to refer to it and add Rights Based Approaches (RBAs) for good measure.
The Rights based approach now includes participation and focuses on citizenship, accountability, capability, and civil and political rights – all under the umbrella of democratic political activism. It also takes into account the issues of power and relationships. Another idea that came into prominence in the past
twenty years is Social Capital, It is described as a portmanteau to include relationships of trust among community members, networks, social cohesion, solidarity etc.
Robert Chambers asserts that it was “vigorously adopted, researched and spread in and by the World Bank where it could be seen as the missing link in development.” (Ideas of Development p 200).
The Rights approach in development recognised that rights are very important for those populations of people who enjoy them least: the poor. The upholding of rights is recognised as primarily the obligation of the state. In many developing countries the state and its institutions are weak in upholding the rights of the poor. The police and even justice systems are compromised and are not able vigorously to protect the civil and political rights of the poor and minorities. As to social and economic rights, states of developing societies do not have the resources to meet their obligations. They spend significant energy negotiating with developed societies for aid and trade and with Trans National Business Corporations for investment and job creation.
The African Charter on Human and Peoples’ Rights (OAU 1981) stresses the importance of family, community and cultural traditions. In Article 29 it assents “to preserve the harmonious development of the family; to respect parents at all times, to maintain them in case of need” and to preserve and and strengthen positive African cultural values in his relations with other members of society.” These focuses on the rights of the family continue to influence development thinking and policy in Africa.
The African contribution to the family of international rights declarations is a focus on the family and respect for parents and traditions.
In the development context. There is increasing stress on balancing rights with duties or obligations. The big gap between the acceptance of rights by signing up to international conventions and their implementation leads to a stronger focus to implement them.
It is clear that while the state is obligated and has the primary duty to implement, there are other powerful actors in developing societies. The elites who hold economic and political power, trans-national corporations that have enormous economic clout, and ruling political entities.
It is clear that greater attention should be given to obligation fulfilling strategies in developing societies and that rights advocacy must go hand in call with calls to fulfil obligations,
It is also necessary to list the obligations of developed societies to developing ones and to the obligations of the developing society itself.
It is in the area of strengthening obligation that the church can play a key role. Obligation education and development begins with children and is rooted in the individual’s character. It is also embedded in communities as part of social capital of the networks. The church is critical to the development of such moral character that takes responsibilities and obligations seriously.
Human Rights and cultures
We will now examine briefly the area of human rights and cultures – particularly non-western cultures.
The key issue here is cultural legitimacy of the universal declarations and formulations. By cultural legitimacy we mean the quality or the state of being in conformity with principles and standards accepted in local cultures.
Cultures have developed their own ways of establishing norms of personal and social behaviour. They also have mechanisms of dealing with cultural non-conformity by members of their communities.
No culture is closed and unchanging. It has its own ways of legitimizing change in standards and procedures in the culture. The challenge to a culture is to be so in control that it critically examines any outside knowledge and influence. The challenge to those who promote rights as universal is to facilitate the development of local / national cultural legitimacy for universal rights.
As local/national cultures attempt to develop their version of rights, we see some significant challenges. Take the case of China. It shapes rights from its traditional Confucian point of view. It stresses that the essential human unit is the community, not the individual. Key values in the community are Ren – the virtue of care, and Li – a virtue of balance – seen in the motif of Yin and Yang. Both values are relational. Community is given; it is not open to debate. The individual decides how to fit in to that community in a caring and balanced way. Community values rather than individual values are central.
This view inevitably recasts the way rights are understood, conferred and practiced. Ideas like freedom of expression and freedom of conscience cannot be absolute individual values but must be restricted by the welfare/stability of the community.
In the context of Islamic cultures, Sharia as the revealed law of God for human society has normative authority. A sharia compliant list of human rights is very different from the UNDHR, particularly in the way it can be implemented.
In Islamic cultures minorities have limited rights. Some groups have no rights. Generally Islamic culture has at best negotiated rights and no natural or inherent rights.
The strong resistance of China and Islam to the understanding of human rights as promoted by UN agencies can lead to moral relativism and strengthen cultural anthropologies of human personhood. In such a situation oppressive practices with regard to powerless and vulnerable groups can be justified as culturally appropriate and legitimate. Cultures have a sense of a higher moral order that is above their culture. Here we musty identify the difference between universals and absolutes. Absolutes are fixed in a culture. Universals have common ground across cultures. Rights must not be projected as absolute but universal which are at the heart of a universally recognisable moral order.
It is also true that some cultures and societies resist human rights as appearing to attack national sovereignty and self-determination. It is seen as an unwarranted accountability to an external entity. This results in a huge gap between the profession and practice of human rights and continues to be a challenge in many non-western societies.
In the west, the high profile image of human rights is in the area of sexual ethics and gender. This requires a major paper on its own. The basic issue here is about identity and rights. Is gender identity fixed, recognised by a community or discovered and affirmed by the individual? What rights does an individual who defines his/her own identity have?
Another urgent issue in Europe is the rights to religious freedom of expression and practice. If a regime of rights adopted by a state is incompatible with the teaching of religion, can the religious practitioner opt out of implementing that right or is she coerced to do so and punished if she does not?
The right of minorities, religious and ethnic, is another area where rights activism is intense.
Challenge to Churches
Owing to limitation of space we will identify the challenge to churches but not examine them.
- The development of a carefully thought out theological framework for human rights. There are different types of rights. There are positive rights or benefit rights. This is a right to be treated in a particular way. There are negative or freedom rights. This is about being free from being treated wrongly or oppressed. There are socially conferred rights, inherent natural rights and divinely endowed rights. A theological framework is needed to analyse, understand and rank these rights,
The language of entitlement dominates the world of rights. Christian stress on grace, on faith, not works of merit is uncomfortable with entitlement language. We need to develop deeper theological understanding to apply to the world of rights.
- A biblical anthropology that lays out the biblical teaching on persons and communities is needed to address the received cultural views of persons and society that dominate our cultural practices and shape our public policy.
- A recovery of the significance of a doctrine of creation. We need to recover and develop a much deeper understanding of creation from a Christian perspective.
- The place of human rights in relation to the Kingdom of God and the mission of the church need to be explored in depth.
This paper attempted to survey the field and identify the key issues. Other papers will focus on particular areas in depth.