Reason, Social Theory, and Human Experience in Human Rights: A Foundation in Reality
Few topics of debate in the field of Human Rights evoke such a controversy as does the Foundation of Human Rights. How do we determine what should be a “Right”? Is there a foundation, something natural or supernatural that exists outside of us that endows us with inalienable rights? Some would argue that God and Religion—or more broadly speaking “Theology”—endows us with our rights; some scholars argue that the foundations for Human Rights can be found by combining Reason, Social Contract Theory and human experience. But, the necessity for having a foundation is to give Human Rights a mandate in the eyes of a skeptic. So, While the Foundational basis of Human Rights remains a contentious issue, it is sufficient to base them in Reason, Social Contract Theory, and Human Experience.
Towards a Natural Foundation for Human Rights
Our capability and capacity for reason is a powerful tool that distinctively sets us apart from other creatures, and in turn has the power to ground our decision making. The German enlightenment philosopher, Immanuel Kant, in search of the “right” reasoned out the three instantiations of his Categorical Imperative:
Act only on that maxim whereby thou canst at the same time will that is should become a universal law. … So act as to treat humanity, whether in thine own person or in that of any other, in eery case as an end withal, never as a means only. … Act according to a maxim which can at the same time make itself a universal law.”
This summation of what is “right” is intended to find a universal moral that does not require a God; ultimately, what Kant discovered, a philosophy also known as deontology, is a system that seeks to develop universal rules for our ethical decision making. For Kant, and for the concept of Human Rights, the most important notion is the second instantiation of the Categorical Imperative: “So act as to treat humanity, whether in thine own person or in that of any other, in eery case as an end withal, never as a means only.” This instantiation, one could argue is one of the foundations of Human Rights as we know it today. A summary of this Instantiation produces two concepts:
That we should not use people as a means to an end.
That we should treat others with the same dignity and respect that we, ourselves, would like to be treated.
These two concepts are critical to thinking about how we form Human Rights. There are many places within the Universal Declaration of Human rights wherein we can see the effects of both of these concepts, from the scattering of the word “Dignity” throughout it to instances like Article 4 which states, “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms” or controversial Article 5 that states, “No one shall be subjected to torture or to cruel, inhumane, or degrading treatment or punishment.” These are prime examples of the Categorical Imperative influencing the ethics of Human Rights. That said, like many aspects of Human Rights from its foundations to the regime itself, “Dignity” and Kantian Deontology is also questioned as to whether or not it is a foundation of Human Rights or that it is even necessary to Human Rights. Jeremy Waldron in his essay “Is Dignity the Foundation of Human Rights?” contends, “Some rights may be based directly on liberty or autonomy—without regard to the place those ideas have, in turn, in the analysis of dignity. Some might be based on equality and social justice. Some might be even based indirectly on utility.” He is not wrong. These other factors are crucial to the foundation of Human Rights. Just like Dignity isn’t the only foundation of Human Rights, neither is Reason. Social Contract Theory and Human Experience is also important to building the foundation of Human Rights.
Enlightenment philosophers such as Hobbes, Locke, and Rousseau were interested in many complex concepts, but one that has since been a powerful force in shaping modern political philosophy and our notions on ethics and human rights is Social Contract Theory. According to the Internet Encyclopedia of Philosophy a summation of the theory would be that, “Social contract theory is the view that persons' moral and/or political obligations are dependent upon a contract or agreement among them to form the society in which they live.” Social Contract theory plays an important role in Human Rights as it helps dictate relations within a community, particularly between the people and the state.
Thomas Hobbes, although his theory does not represent well our modern notion of Human Rights, is still important as a figure that delineated a separation of Theology and state absolute Monarchal rule and citizen autonomy. Before him, it was commonplace that the State—in this case the Monarch—was given its sovereignty of rule via God over all people in the kingdom; Hobbes, on the other hand, made the case that it is not God, but man that gives the state its power. This is critical to Human Rights as it advocated the concept that Humans are sovereign beings thus stripping the state of its supposed absolute God-given power. Hobbes, however isn’t the only philosopher working to develop a concept of what democracy and liberal values could and should look like.
John Locke’s Social Contract Theory, on the other hand, is much similar to our modern notions of Human Rights particularly in the United States. In fact, Locke’s writings, particularly his Two Treaties on Government, were so influential on our modern concept of Human Rights and particularly where government are concerned, that they are written into the very framework of the United States. Locke in his Two Treaties on Government writes:
Man being born, has been proved, with a title to perfect and uncontrolled enjoyment of all the rights and privileges of the law of nature equally with any other man or number of men in the world, has by nature a power not only to preserve his property—that is, his life, liberty, and estate—against the injuries and attempts of other men, but to judge of and punish the breaches of law in others as he is persuaded the offense deserves even with death itself in crimes where the heinousness of the fact in his opinion requires it.
This piece is important because he, not only coins the inalienability of our rights as being vested in us because of our birth, but also establishes certain very basic Human Rights. Where Kant establishes the right to not being treated as an ends, Locke establishes, as inalienable, the right to Life, Liberty and Property. The framers proceeded to write a mildly changed variant to this concept in the United States Declaration of Independence, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Hobbes and Locke were two powerful contributors to the development of social contract theory.
It is through the combination of these influential philosophers that we begin to pave the way for thinking about our rights. But, theory and reason alone do not shape our conception of what should or should not be a right. Theses theories, although incredibly important, would be flaccid without drawing from Human Experience.
Like our ability to Reason, the things in which we experience day to day powerfully shape our psyche, and these perceptions thus affect our actions which in turn we pass from ourselves to our offspring. We can theorize and hypothesize day and night what we think should or shouldn’t be a right, but it is not until we experience the lack or deprivation of something that we begin to recognize its importance. This notion is particularly emphasized when we see another not being deprived of it.
For instance, the United States is one of the few countries in the world (the only first world country) to not have Universal Healthcare also known as Single Payer Healthcare or Socialized Healthcare. This entitlement, has become a major polarizing political contention between the Political Right and the Left. In fact, according to Pew research 60% of Americans believe that it is the governments responsibility to ensure that all Americans have health coverage. That said, 58% of Americans want to see Federally-funded healthcare. The human experience that likely dictates this sentiment in Americans is likely two-fold: 1.) The fact that as The Atlantic puts it, “The U.S. stands almost entirely alone among developed nations that lack universal health care.” 2.) The fact that in 2013, according to CNBC, “Bankruptcies resulting from unpaid medical bills will affect nearly 2 million people this year—making health care the No. 1 cause of such filings.” Ironically for America, Healthcare as a right is listed in the UDHR; unfortunately for Americans that particular document was not ratified by the US. Hopefully in time that will change.
The American people, via experience, are recognizing Healthcare as a Right this is something that may have not came into existence without the necessary human experiences that shape the psyche into recognizing its status. But, healthcare isn’t alone in the rights recognized through experience: Group rights, Water rights, Women’s rights, Queer and Trans rights, and a slew of other rights have developed out of the Human Experience as well though it should also be noted that some of these rights have yet to be made official within the Human Rights regime.
Critics of a Natural Foundation: Theology
Despite the sufficient evidence to suggest that Human Rights can and should be based in reality and that which is natural via Reason, Social Contract Theory, and Human Experience, there are still those bent on connecting human rights to the supernatural. This arguments can, at first glance seem compelling, but falls apart under further scrutiny.
A common misconception that one cannot be moral without theology, this has been thoroughly debunked, however it is still a point of contention regarding Human Rights. Some people believe that Human Rights would not have a sturdy moral foundation without Theology. These people believe that it is necessary to ground ones ethics and the ethics of a community in something that is beyond us, something supernatural. The problem with this contention is while theology has provided for plenty of good in the world its manifestation as religion has also caused remarkable harm.
Max Stackhouse in his essay “Human Rights and Public Theology: The Basic Validation of Human Rights” argues that, “[C]ertain theological principles are indispensable to the sustaining idea of human rights.” He asserts this because he believes that, “If human rights are the product of scribbles and spohist only…they will not long endure … [as] sentiments will change … [T]he erosion of the gains for human rights could easily occur…if the idea of human rights is based on nothing more than the changing course of human experience and discourse about it.” But this position assumes that:
Human Rights isn’t based off of a universal “right” such as Kant’s Categorical Imperative, and
That everyone recognizes and accepts Theology or some higher power as being that which is the foundation of Human Right.
Stackhouse’s assertion suffers from the same problems that he charges philosophically based Human Rights. Someone, or somebodies, intent on violating Human Rights aren’t going to not violate my rights because I argue that my rights are endowed by my creator, such and assertion is ridiculous. In fact it is much more plausible that if I use logos and pathos to engage with the potential violator on the grounds of arguing that we are the same, and that it is a universally important to treat each other with the same dignity that we wish to be treated that my rights are less likely to be violated. That said in either case the chances are slim, a Human Rights violator will be a Human Rights violator whether we make the appeal or not, but I digress. This isn’t the only problem Stackhouse’s essay suffers from. He, like many others who advocate for a theology based Human Rights foundation, conveniently ignores the massive violations of Human Rights done in the name of religion.
Now, Stackhouse argues that while religion has committed all sorts of tragedy and Human Rights Violations, one should not conflate it with Theology which has not, but this is a problematic position as Louis Henkin argues in his response, “Human Rights: Religious or Enlightened,” to Stackhouse: “[W]ould all religions, and all who represent them today, embrace [the full panoply of human rights, the human rights movement and all persons of good will]?” Essentially, Henkin is challenging Stackhouse’s pragmatic take on the reality of what is religion today. Religions today do not recognize each other as the “right” authority regarding theology. Christians believe that non-christians even Catholics and Jews will go to hell if they don’t convert. Thus challenging the morality and the “right-ness” of the other religions. The same can be said about nearly every other religion out in existence today. Stackhouse’s premise that they will somehow work together and respect each other is as one might call “pie-in-the-sky”—as it is highly unlikely that they would do so. Likewise, all we have to do is observe the American Republican parties stance on Planned Parenthood and Abortion Rights and the religious arguments made by Republican Politicians to see how Christians feel about the Rights of women. Or, we could look to the Middle East, particularly Saudi Arabia which is majority Sunni Muslim and see their stances on the Rights of women. In both of these cases we can see religion—the byproduct of theology—in staunch violation of Human Rights. Henkin also challenges what he calls “the heart of Professor Stackhouse’s essay” which is that without theology human rights are alienable. This, he argues is the, “old controversy between deists and a-deists: Can there be morality outside of religion?” This can be dismissed because there are moral individuals in and out of religion as well as immoral individuals in and out of religion. Ultimately, as Henkin puts it, “For our time, one can—one has to—justify human rights by some contemporary universal version of natural law, whether religious or secular, by appeal to a common moral intuition of human dignity. If that is not good enough, it will have to do. May it last! If it does not last, all will be to do again, in another century, another age.”
The foundations of Human Rights will continue to be a contentious topic. It would take a miracle—for lack of a better word—for this to change. There will always be individuals on both sides of the aisles asserting a supernatural or a natural foundation for Human Rights. And, while in scholarship the debate will continue, we can be thankful that there is a support for the Human Rights regime on both sides of the aisle. How we get to Human Rights might be different, but the fact that we are getting to Human Rights is what is crucial. It is my belief that it is more realistic, and useful, to place human rights within Humans themselves, therefore we shall not need to refer to 2000 year old documents for support. But, if both I—with my foundation in Reason, Social Contract theory, and Human Experience—come to the same conclusion as does the Person with their foundation in Theology that Queer Trans Persons of Colors shall be just as protected as Heterosexual Cisgendered White Males, then it does not matter where our foundations come from. We both came to the same conclusion that a certain group minority should be protected. That is ultimately what is important about Human Rights. That said, I have my doubts that an individual coming from a foundation of Theology will come to the same conclusion as I, but I am willing to be convinced. This is what is ultimately important regarding Human Rights and its foundations.
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This essay was written for Columbia Universities "Introduction to Human Rights" course summer 2017, under the direction of Dr. Joseph Chuman.