(1) Introduction and the Human Rights Idea

Louis Henkin, The Age of Rights (1990)

[p 42, Henkin]
Contemporary human rights not grounded in natural law declared as a matter of
positive law; further justification is rhetorical and not philosophical
But what does the pattern of declared human rights amount to?
Positive and negative rights of individuals in society
Universal
Rights in the strong sense {see Dworkin in Taking Rights Seriously}
They imply the obligation of society to satisfy the claims
Claims upon society
e.g. Right not to be killed by wolves is not a right against wolves
But contra Henkin I would argue that the right not to be killed by neighbours is a claim both upon the
society and upon the neighbour (but a slightly different claim in each instance).

Not against society rights are meant to be aligned with the long-term
good of the society, even if not for the government of the day
They generally trump the public good
Limitations on rights are strictly limited
In sum, the idea that the individual counts (and see above on claims upon
society)
Rights are essentially individual, not those of groups
Other kinds of rights: domestic rights; other generations of rights
[p 99, Henkin]
Rights less universal across time than rhetoric suggests religion particularly
problematic
Religions tend to address rights only as a beneficiary of the right to religious
freedom
Religions generally generate responsibilities and duties, not rights
Similarly, communitarianism
Today religions tend to embrace rights but continue to reject human rights as
a total ideology the idea of rights as a floor
True socialism is actually ideologically compatible with rights
The idea of development has a difficult relationship with human rights many
argue that the public good of economic development can justify compromising
human rights
But development is unlike an emergency it is a long-term, pervasive,
comprehensive program in which individual rights have to be integrated, not
one that can be used as basis for disregarding them
The common assumption that one must choose between societal development
and individual rights (of any kind or degree) has not been proven
The idea of rights is not a complete, all-embracing ideology it is not in fact in
competition with other ideologies
Textbook:
Conflicts between religion and human rights are particularly salient when
religious law receives official sanction from the state
Religious objections to the whole modern system of international cooperation
have become a source of violent conflict:

In one of his post-9/11 videos, Osama bin Laden argued that international
human rights, the UN and other secular laws were all diametrically opposed
to religion

Louis Henkin, The Rights of Man Today (1978/1988)

Human rights a product of modern history
e.g. Bible stressed duties (of which people may be the beneficiaries), not
rights
Can be regarded as synthesis of 18th-c thesis and 19th-c antithesis
American, French revolutions took natural rights and made them secular, rational,
universal, individual, democratic
They added/substituted a social contract basis for divine rights
Did revolutionaries have the right to bind future generations? American
founding fathers were not philosophers not really concerned with this kind of
question
Rights can be traced back to Locke and then Magna Carta; American conception
added separation of powers
US Constitution intended as blueprint for government, not charter of rights Bill
of Rights only added later
Original US Constitution did not include true equality between people
But happily also included no provision for suspension of government or
emergency decrees
French Revolution probably more influential than US Constitution in spreading
rights ideas around the world; also more enlightened for the time (e.g. explicit
presumption of innocence; harm principle; offices open to talents; economic and
social rights)

The internationalisation of human rights

Until after WWII, human rights was a domestic constitutional idea recognised in very
few countries
But the traditional attitude that how a nation treats its own inhabitants is its own
affair dies hard
Louis Henkin, The Age of Rights (1990)
Before modern times, concern for individual welfare could not spill over state
borders except in ways and by means consistent with the assumptions of that
system:
When a state identified with inhabitants of other states on recognised
grounds, and that identification threatened international order
Interventions due to pressure from domestic constituency with special
affinity for interests of victims in the other country and then treaties
imposed on minor powers by major powers for fear that such interventions
would occur otherwise
When the condition of individuals inside a country impinged on the economic
interests of other countries
International prohibition of slavery because of competitive advantage
produced by slavery
The post-WWII international human rights movement has two forms:
National/universalisation human rights appearing in every national
constitution
Transnational/internationalisation human rights appearing in treaties and on
the agendas of international organisations human rights becoming of
2

international concern and a proper subject for diplomacy, international

institutions and international law
An important change took place during this process what began as Western
rights rooted in autonomy, freedom and limitations on government grew with
socialist and other ideas to include a broader view of the obligations of society
and government such as welfare (see e.g. FDRs Four Freedoms speech)

Class
Defining human rights:
Human
Inherent and universal?
How about e.g. the rights of indigenous groups? The rights of women,
children, or refugees?
Recognised/granted by treaties?
Rights
Entitlements? Reflects corresponding obligations?
Rights are a relationship (see Hohfeld)
Do they have to be enforceable/adjudicatory in nature?
*NB Worth reading the translation of the French Declaration pp 7273
What are the benefits of human rights as a universal understanding?
Human rights allow individuals to challenge majority/state authority individually
Human rights create a sense of justice within society that can contribute to just
outcomes
Human rights can create a sense of solidarity or cohesiveness in society
What are the costs of human rights?
Human rights as compromising democratic principles
Human rights mechanisms being prone to error
Human rights systems can be used by parties to confer undeserved legitimacy on
certain positions or policies otherwise subject to moral/political objections
Human rights based on legal entitlement could displace other values such as
charity or mercy
Development? (see Henkin)
One human rights claim often impinges on a contrary human rights claim how
to strike a balance?
Costs of international human rights
Existing international institutions have defects which could make their
involvement counter-productive
[But is it worse that we have fallible international institutions adjudicating
rights than having fallible national institutions doing so?]
Also, international institutions may be more impartial when it comes to
adjudicating domestic conflicts ideas of conscious and unconscious bias
International institutions dont have staying power they can only look into the
crisis of the day
Sovereignty? (Is this a positive value?)