Human rights are moral claims, and not legal rights. Legal rights exist within legal codes and enjoy recognition and protection of the law. It cannot be said to exist prior to its passing into law. The limits of its validity are set by the jurisdiction of the body passing that law.
Moral rights claim to exist prior to and independent of legal rights. Their existence and validity is dependent upon the actions of jurists and legislators. A belief prevails that human rights may or may not have received legal recognition, still stands valid and morally compelling. They are ‘fundamental’ to man. Man cannot live without having them.
They are fundamental to his existence, survival and progress. Human rights are meant to apply to all human beings everywhere. It does not matter whether they have received legal recognition by all countries. They are valid as fundamental rights.
The universality of human rights as moral rights lends greater moral force to human rights. Still human rights should be identified with moral rights. They should be thought both as moral rights and legal rights. The legitimacy of human rights is tied to their status as moral rights. However, the practical efficacy of human rights is largely dependent upon their developing into legal rights.
Most of the rights in UDHR expressed as ‘liberty’ rights are in fact ‘claims’ rights. Claims rights owe duty to help the holder of this right to perform his duty. A claims right is a right one holds against another person or persons who owe a corresponding duty to the right holder. Claims rights one holds to some specific good or service, which some one other has a duty to provide. Negative claim rights are rights one holds against others’ interfering in or trespassing upon one’s life or property in some way.
Liberty right is a right to do as one pleases. With it one is not under an obligation, grounded in others’ claim rights, to refrain from so acting. Liberty rights provide for the capacity to be free, without actually providing the specific means by which one may pursue the objects of one’s will. They consist of those actions one is not prohibited from performing. In contrast to claim rights, liberty rights are primarily negative in character.
There are different categories of substantive rights: rights to life; rights to freedom; rights to political participation; rights to the protection of rule of law; and, rights to fundamental social, economic, and cultural goods. Some rights depend more on the existence of various claims rights. It requires the positive provision of the objects of such rights. Often people consider these rights having equal importance. But all rights are not equally important. Therefore, conflict between rights can and does occur. Developing countries have severely limited financial and material resources.
They are incapable of providing resources for realising all of the human rights for all of their citizens. Some rights are more absolute and fundamental. Therefore, a morally correct action for a government is to prioritise these rights. It requires the existence of some more ultimate criteria against which one can ‘measure’ the relative importance of separate human rights. It is also important to know who and how one would do this?
Human rights are to be possessed equally by everyone. Everyone has a duty to protect and promote the rights of everyone else. The onus for securing human rights typically falls upon national governments and international and intergovernmental bodies. Moral burden for securing human rights falls disproportionately upon institutions as some are best placed and most able to effectively perform this task.
Non-governmental organisations and some private citizens also have an important role to play to protect human rights. National governments are held responsible for the adequate provision of their own citizens’ human rights. They have to ensure that all individuals have the opportunity of leading a minimally good life. The goal of human rights is to secure ‘minimal levels of decent and respectful treatment’. However, this goal cannot be limited by national boundaries.
The more affluent and powerful nation-states have to provide sufficient assistance to the countries currently incapable of adequately ensuring the protection of their own citizens’ basic human rights. Even the briefest survey of the extent of human suffering and deprivation in many parts of the world today demonstrates how the world is far away from realising even this ‘fairly minimal standard of living’.
The goal of the creation of opportunities for all individuals to lead a ‘minimally good life’ should not be equated to creating a ‘morally perfect society’. Even the aspirations of leading a minimally good life is far from being realised in the world. The actual aspirations of human rights are quite modest. But the force of human rights is intended to be near absolute. Even all the opportunities to lead a minimally good life cannot be realised. However, considerations of human rights’ claims must take priority over other considerations.
Human rights require validity, i.e., justification. Mere factual existence or their recognition is not enough. They have to be proved on the basis of ‘oughtness’ or norms. This is usually done on the basis of (a) interests theory, and, (b) will theory. Interest theory argues that the principal function of human rights is to protect and promote certain essential human interests. It is necessary to identify the social and biological prerequisites for human beings to lead a minimally good life. John Finnis argues that human rights are justifiable on the grounds of their instrumental value for securing the necessary conditions of human well-being.
He identified seven fundamental interests: life and its capacity for development; the acquisition of knowledge as an end itself; play, as the capacity for recreation; aesthetic expression; sociability and friendship; practical reasonableness, the capacity for intelligent and reasonable thought processes; and religion, or the capacity for spiritual experience. These are essential prerequisites for human well-being, which serve to justify our claims to the corresponding rights.
The interests-based approach provides a justification for respecting, and even positively acting to promote the interests of others. James Nickel argues that each individual, due to his prudential reason, owes a basic and general duty to respect the rights of every other individual. The basis for this duty is not mere benevolence or altruism, but individual self-interest. This necessitates the establishment of a co-operative system. But the fundamental aim of this co-operative system is not to promote the common good, but the protection and promotion of individuals’ self-interest.
This theory appeals to human commonality, to those attributes we all share. It also resolves some of the potential disputes, which can arise over the need to prioritise some human rights over others. But the theory banks upon some account of common human nature. Appeals to human nature have proven to be highly controversial.
They resist achieving the degree of consensus needed for establishing legitimacy of any moral doctrine. Indian economic philosopher, Amartya Sen has argued that determining the minimal conditions for a decent life are socially and culturally relative. It cannot justify the claims of universal human rights. Interests cannot be pre-determinants of human moral ends like freedom and love.
The will theory proposes to establish validity of human rights often upon a single attribute: the capacity for freedom. H.L.A. Hart writes that all rights are reducible to a single, fundamental right: ‘equal right of all men to be free’. But Henry Shue argues that many of these rights imply more than mere individual liberty. He grounds rights upon liberty, security and subsistence. Alan Gewirth finds rights in ‘capacity for rationally purposive agency’. Rights are necessary means for rationally purposive action. Every human action is done for some reason.
There exists an absolute right to life possessed separately and equally by all of us. The right to life is absolute and cannot be overridden under any circumstances. Will theorists further attempt to establish the validity of human rights upon the ideal of personal autonomy.
Rights are a manifestation of the exercise of personal autonomy. However, this theory neglects marginal cases of human beings that are temporarily or permanently incapable of acting in a rationally autonomous fashion. It also excludes human beings that act out of sympathy, and have a general emotional concern for others. However, each theory suffers from certain limitations. It yields conclusions that limit or undermine the full force of human rights. Therefore, plurality of theories or approaches is the only way out.
John Rawls writes that only an international order, no nation by itself can realise human rights. Human rights in but one land are a contradiction. Jurgen Habermas argues that human rights are not accepted because of good consequences such as knowledge of the Absolute. They are accepted as presuppositions of inquiry for the sake of inquiry.