The Philosophical Foundations of Human Rights

- Jerome Shestack
He is simply asking the question- Why human rights? Why should we accept or be bothered about human rights? The main contention within international human rights has always been that it has
emerged from the western philosophy and was result of the work of western scholars. But we need to remember that everything develops in context and existing setting. So, the authors look at the setting
and then attempt to justify the setting and this is what mainly happened in the west for human rights jurisprudence. So, Jerome says that we shouldn’t reject human rights altogether because it arose from
western philosophy but agrees that we should be open to alternate versions of the discourse on human rights. In conclusion, he argues that there is no monolithic idea of human rights.
Why do we need to talk about HRs?
For Jerome, the biggest issue with HRs is that not everybody talks about HRs in the same manner and not all accept HRs in the same manner. This is why he says we need to read about HRs so that
everyone at least agrees on the justification of HRs. Unlike domestic system, HRs talk to people from different countries, social and economic set ups. Therefore, there is a need to talk about HRs and
find justifications for the same so that the concepts become more acceptable across different cultures and regions. Hence, it becomes important to talk about the philosophical foundations for HRs and
look for justifications so that people have a common platform to talk and the norm arising from such justification will have far better chance of success amongst people coming from different
backgrounds.
What are HRs?
The first idea while defining human rights is to see how to define it- on an individual basis or group basis? That is, should this right be interpreted as something people as a group or as an individual are
entitled to in order to lead a decent life. Jerome defines HRs as rights which you are entitled to for being a human but what he categorically refuses is the conception that just because you have these
rights makes you human. Hence, for him the starting point is very individualistic as he puts HRs as rights which you have by virtue of being human.
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Next, we need to question the justification given for human rights. When we talk about law, we have a three-tier analysis which equally applies to human rights analysis-
i. What are the values on which the law is based?
ii. What are the justifications for these values?
iii. What are the reasons given for accepting these justifications?
So, Jerome raises two primary questions- i) why should we be bothered about human rights; and ii) what are the justifications for accepting human rights. For the first question, he responds that
importance is given to human rights due to the justifications given to them. Further, he moves to defining human rights and says that they refer to rights conferred on people just because they are human
beings. But some theorists like Rawls have argued that unless you are given such rights you cannot lead a dignified life and hence, your life will be incomplete without these rights. However, Jerome
Shestack doesn’t define these rights in this manner and rejects the argument that human rights are what makes someone a human. Instead, he defined people are individuals first and that such individuals
are entitled to certain inalienable rights which are termed as human rights. Next, he attempts to discuss the second question and delves into defining what these rights mean. He identified four types of
rights here: (i) right, privilege; claim and power.
Next, he attempts to identify the justifications given for the different rights claimed by people by virtue of being human beings.
Religion
His argument is based on three threads, firstly, that humans originate from a divine source or God as an “image of God”, secondly, this makes humans scared or divine as they are on the same plane as
the divinity; and third, this divinity instills value or worth in humans which entitles them to certain rights which are inalienable due to the moral authority of the Divine. Hence, religion becomes a
powerful idea as most agree on the existence of a supreme being who created humans and this ensures we as humans have certain values which others lack. So, the reason for believing in human rights is
because it originates from God and the nature of these rights is that it is universal in all human and cannot be taken away as it comes from your inherent divinity.
The most important proposition of this school of thought is that religion recognizes that each individual has an inherent “ worth” and this entitles them to certain “ inalienable rights” which are bestowed
due to their connection with divinity. The theory of religion is very widely accepted due to the universality of religion across the world and thus, this theory of rights is accepted by many people. Hence,
you need not convince people about the existence of a divine being and that they bestow rights on people. Here, the focus is not on what rights will flow from the inherent divinity and worth of humans
but only on the nature of rights which are considered universal and bestowed equally on all human beings.
Problem with interpretation of religion being the source of rights: The issue is that the interpretation of rights will depend on who is interpreting the religion. Further, the issue becomes bigger when there
are multiple religions with many different types of possible interpretations. For example, the question who can marry varies from religion to religion and it comes down to who is the interpreter in which
case. Further, Shestack in his article highlights that the other main limitation of religion as source of human rights is that it limits individual freedom. Further, the other issue arises how to identify which
rights will flow from the sacred being and Shestack also agrees that the theory of religion fails to discuss the issue of “immutability”. So, with religion, the issue of immutability goes unaddressed and in
the modern times the constant changes in society continue to challenge the basis of this theory.
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Natural rights theory
In the natural right theory, the humans are considered to be living in a ‘state of nature’ where there is no political authority controlling them and everyone living freely in a society where there exist
certain immutable rights. The most important pillar of this school is their notion of “rationality” and that everyone is a “moral person” . Here, the argument is that a moral person is endowed with
rationality and reason which allows them to conceptualize what is right or just. Hence, it is this rationality which empowers them to judge what is right or good and using this reason they will identify the
inherent immutable rights in society. Then anyone who fails to behave in a manner that will be considered just, they will be considered an irrational person. So, the two pillars of this theory are that there
are certain immutable rights of human in a state of nature and that all humans are rational beings in such a society who use their reason to identify the immutable rights.
Locke proposed the “social contract theory” where he says that humans in a state of nature which is chaotic and to ensure survival they enter into a social contract to establish a government to govern
them. For this, humans give up some of their rights while establishing the government to govern them but at the same time they don’t give up all of their rights and retain their natural rights of life,
liberty and property. But the question is then why can’t these three rights be given up while entering into a social contract? For a natural right theorist, there are certain rights that people cannot give up
no matter what type of social contract they enter into. In other words, there are certain set of rights which even no government or state can take away from human. This set of rights is then something that
even the government and state cannot interfere with and thus, they are immutable or inalienable in nature. So, the starting point of these rights is the human themselves which they carry as autonomous
rational humans and using their rationality they identify certain inherent immutable rights.
Limitations: The limitation here is similar to that the theory of religion that the basic inherent rights are identified on basis of what the interpreter thinks is important. For instance, Locke identified
‘property’ as a core right because of his personal conceptualization. Also, there are questions raised if there are any hierarchies between the identified rights of life, liberty and property then. So, the fact
that natural right theorists say that life and liberty are inherent right raises the question that will everyone’s rationality will allow them to identify these rights are the basic natural rights. Hence, Rawls
used the principle of natural position to argue that everyone is in the same position while conceptualizing his theory of rights and assumed that everyone would be in the same situation while identifying
their rights. So, natural right theorist provided a good starting point with the notion of ‘inherency’ but beyond that their theory suffers from problems of identification.
Positivism
Why did positivists give up Natural law thinkers idea of inherent right in their theory? Most thinkers agree that natural law is good as an idea but on application the problems arise due to vagueness and
uncertainty. Thus, positivists tried to cure this vagueness problem by rejecting the idea about a prior idea and rather relied on the idea that there was nothing beyond the legal system. That is, they argued
it was the legal system and not the social contract before the legal system which is of relevance and thus, what the state said was right and not right. So, they said the state came up due to the individuals
themselves and reflect the society and now it is what will govern the society. With this emerged the idea that what the State says ‘is’ and this clarified the blurred idea of “ought-is” which existed under
natural law school.
So, in this school, the concept of human rights is defined as ‘what the state says is human rights’ and the justification is that ‘the state said it, thus it’s right which everyone has to follow .’ But the
problem with this theory is that then the State has complete power to can say something is not a human right and can set the bar too low. For e.g., in Nazi Germany positive laws existed which violated
human rights and were immoral but people still followed them as they originated from the state. So, the State can say there will be no ‘human rights’ and even an international organization cannot come
and argue against this as it is always what the ‘state says is a right.’ So, by prioritizing clarity, this school has compromised the ability to identify human rights by granting this power completely to the
State as then the State can tomorrow reject the entire system of human rights. As a result, person looking at this theory from the individualist point will agree that this school completely rejects
individuals as the basic foundation of rights. Hence, under this theory, there is no question about immutability, inherency and morality of rights as it is what state grants and what the state can take away.
But, in the international human rights regime, the problem comes up that positivism was developed for nation-state and promotes the concept of national sovereignty. It is based on the principle of
following the dictates of the State and if you bring in a supra national entity then the problem of enforcement and recognition will arise as all the powers of the national government or state will not be
conferred on them. Hence, the excessive focus of positivism on national sovereignty creates conflict with the international human rights regime. So, under positivism, human rights will be better enforced
in the domestic regime rather than the international regime.
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Marxism
The biggest difference between Marxism and the previous ideas is that in the former there is no notion individual being and the focus is on the social collective. Here, the focus is on the collective or
group and he is not concerned with the question about what inherent rights individuals will have . The only inherent attribute that Marxism will identify will be that of the collective and the ability of the
collective to work and to identify resources to meet collective’s ends. Hence, the relevance of an individual is practically nil and there is no question of individual’s autonomy or rationality. Other
theories always hold the autonomy of the individual as inherent.
● If the collective works, they work towards using resources to meet the ends, i.e. human needs. The ability of the collective is to transform the resources to meet the ends.
● There is no question of autonomy or rationality. There is no moral authority
● The nature of law and rights flows from the notion of power. The rights and law become transient. Marx sees natural law as a starting point. Everything is contingent on who has
the power, because they can deem all ideas in a way that benefits them.
● For Marx, until we reach the idea of a utopian society, the notion of rights is transient because rights take the shape of what the people with power want.
● The HR implication is that there is no inherency idea. This is very close to the positivist idea of the State deciding rights. Marx falls in a middle position that there is a decision-
maker who decides for others
● Even if we move to a classless society, the focus is still on the collective. In a classless society only can be collective exercise power or authority.
● Most thinkers find the idea of dissolution of an individual as problematic. Shestack also states this.
● When we do this, there is a problem in the definition of HR since the individual loses themselves in the collective.
● Shestack says that experience has shown that Marxist regimes do not abide with the international idea of HRs. HRs categorically do not get recognized in a Marxist state.
One of the ways of looking at this is –
 what rights are getting violated,
 how they are getting violated
 what recognition these rights have and what is their nature, and
 what is finally happening
There is a different approach by different organizations. Some say there is no recognition, other say there is recognition but this is truncated. Some say that even where rights are to be limitedly applied,
this does not happen. Some take a consequences approach, that if there is no right, it doesn’t matter what regime is involved. This approach is becoming increasingly popular and the focus has moved
from recognition. So, the question often is not on the source but the ultimate consequence. Because of this, it seems rich for Shestack to look at empirical evidence. Just because some Marxist regimes
have become authoritarianism doesn’t mean that democracies have not done so.
Marxist is based on the domestic and it is difficult to get international HRs implemented within the Marxist system. A debate has also emerged on derogation, from whether these rights can be derogated
from to saying that some norms are so fundamental that they cannot be derogated from, irrespective of the political regime. This has further led to the question of whether reservations count for HR
treaties.
For Marx, the nature of rights is ‘transient’ and thus, there will be no inherent rights for individual in such society. So, there will be a powerholder who will dictate the rights for those at the receiving end
until you reach the stage of a classless society. Until you reach a classless society, the rights will remain transient and once this stage is reach, the nature of rights will become collective based.
Further, the critics of Marx are mainly western thinkers who oppose communism and hence, they find this theory non-compatible with international human rights.
Sociological school
Under this school, the main proposition is that law should match the social fact and it diverges from previous theories as it rejects a prior rights or pre-existing assumptions about the needs and interests
of individuals. However, in this school, there is a certain level of autonomy available to individuals as they decide what interest or demand they need or want. So, the focus of this theory is that people’s
demands should be met and for this you recognize certain rights and see if they help in fulfilment of the demands and interests. However, there is no question of inherency here and all the State is
required to do is to look around in order to determine which human interests have to be fulfilled.
However, human wants are constantly changing and transient then how to develop a norm or have certainty. But, when you juxtapose these rights with other community rights such as collective interest
v/s security of individual and etc., then how do you prioritize the different rights. Hence, this school keeps moving to whatever rights are in demand the most and this results in an inconsistent theory.
Further, there are a large number of rights demanded by society, mainly, there are many socio-economic rights due to which the State is unable to fulfill them all.
Utilitarianism
While sociological school saw what people want but the priority setting for these demands became a problem. But utilitarian resolved this issue by arguing that the rights guaranteeing maximum
happiness should be given priority. The entire Guantanamo bay idea was based on Utilitarianism as torture of a few would secure protection or security of a larger collective . Hence, many times
utilitarian arguments are raised when human rights or individual rights are invaded as that will secure happiness of maximum. This principle also comes up a lot in human right discourses, especially
when questions about violation of human rights come up in modern day State workings. Therefore, they also have a marked movement from natural rights theory as individual rights are allowed to be
overridden to secure interests of a larger collective. The notion of equality exists in utilitarianism but it is inconsequential without something else being attached to it. (didn’t understand the equality
argument).
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Modern theories of Human rights
The next set of ideas cannot be seen as standalone ideas and except the core rights theory, the rest of the theories are trying to outline a justification for a rights system. Hence, they are telling us that if
the legal system accepts rights then how they are going to justify them.
Core theory approach
Any legal or rights system should have an absolute foundation and cannot be contingent cannot be on what people say (this is seen to happen in the sociological school) as that will make norm formation
difficult. Therefore, this theory is called the ‘core’ rights theory as there is a categorical and not contingent foundation for this theory. Here, categorical refers to presence of absolute ideas which means
that there is no derogation at all and in case there is any derogation, then it is not based on the whims and fancies of people but on some strong basis. This idea of absoluteness is a system wide idea and
the entire system get based on this.
The Shestack looks at how we identify the categorical core ideas and this is the next question he is addressing. For this, he looks at three approaches –
1. Kant’s Compelling Ethics Approach
Kantian approach or modified natural approach- Here, the heart of the theory is that individual is an autonomous being and this autonomy brings in the idea that all individuals are equal being.
Accordingly, for any system to be a just system, it must recognize individual liberty and autonomy and these form the core rights in Kantian model. This is the core idea for him which cannot be changed
and the two rights of autonomy and freedom is taken as an a priori idea for him and necessary conditions for just society. But for Kant, all people are to be treated as an ‘end’ in itself and thus, the state
cannot infringe it under any condition. But this is in sharp contrast with utilitarianism which says you can override everything as for Kant no state can override liberty and autonomy. But limitation of
Kant’s theory is that it then becomes difficult to identify further ideas that flow from these two unchanging ideas of liberty and autonomy.
2. Natural Necessity Approach
Shestack says that for humanity a certain set of rights are constitute of ‘human’ and if these rights go missing then a person cannot be considered ‘human.’ Thus, the question here becomes what are the
core rights and the answer is that those rights which makes you human. This has some flexibility as the more society matures, you can go on adding new rights that are necessary to be a human. But the
issue with this theory then how do you identify these necessary rights and for this Shestack suggests that we should first start with some treaties and recognition of the rights say, by adoption of
international human rights. Once such rights have been accepted as necessary for being a ‘human’, then if a state deprives you of these rights or conditions for their exercise then such state is depriving
you of your ‘humanity’ and made them ‘sub-human.’ This is more than just saying your rights were violated and is the most attractive feature of this theory of rights.
3. Mix and match approach
You pick some rights and see what type of society emerges and you keep doing this till you find a society that is deemed desirable by all. Once you find the desirable society, you make those rights as
absolute then. But no standard of desirability is explained here and if it follows the utilitarian notion of desirability. So, he doesn’t explain the basis and operation of this theory in detail here.
From the human rights perspective, the Kantian idea of certain absolute, universal and inviolable rights which cannot be violated by the State under any condition offers the best foundation for the
international human rights regime. But under the natural necessary approach, there is an assumption that rational humans will identify certain core rights without which a person cannot be deemed as
‘human.’ But if such ideas are determined on utilitarian basis then it will create issues as we had seen in the Nazi Germany. Hence, clarity on the manner for recognizing the core or necessary human
rights is lacking in this approach. However, we see a mix of both these approaches in the present international human rights system as they identify certain core universal rights and their violation is
considered to make the individuals ‘sub-human.’
Rights based on Justice approach
Rawl’s theory came up as a criticism of the utilitarianism theory and his theory focuses on first, ‘what justice is required to achieve’ and second, ‘what are the nature of these rights.’ For Rawls, every
individual has certain basic crucial rights and he introduces the notion of inviolability at the start as he says these rights cannot be taken away but on utilitarian grounds or on basis of majority decision
that increases welfare. So, he moves slightly away from core rights theory as he agrees there are certain core rights but says that they can be violated on utilitarian terms but only under certain limited
terms and conditions.
Then, he proceeds to identification of these rights and then proceeds to discuss the outcome of this process. This is different from other theories which assume certain core rights as Rawls is more
focused on the process of identification of these rights. For this, he prescribes the two methods of ‘original position’ and ‘veil of ignorance.’ Here, Rawls says people are in a state of nature in the original
position where they don’t know where they will end up in the society due to veil of ignorance and these individuals being rational beings will select those rights which will secure their self-interest no
matter the final outcome or their final position in society after the veil of ignorance is removed. So, here Rawls is talking about distribution of primary goods and the idea is self-interested people in
original position behind the veil of ignorance will rationally choose to distribute primary goods in a fair and just manner . Consequently, an outcome of such process would not only be fair but acceptable
to everyone as it secures maximum self-interest. The distribution of primary human goods like liberty, income, resources etc., is equally distributed resulting in an egalitarian manner. This is a very
powerful idea for human rights analysis as this results in a fair system as the distribution of rights and obligations on the states will not be burdensome and will be acceptable by all. So, the result of such
society would be that people in original position will aspire for a society where no one is kept in a position of disadvantage and for this, they will draw a mid-line whereby even if anyone fails on either
side of the line the distribution of advantages and benefits is as fair as possible.
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Criticism of the Article
Shestack article’s analysis is very thin as he is only assessing the different theories of human rights and their main arguments. However, he is not providing a critical analysis for the human rights regime
and if the justification given for human rights is valid or not. Thus, his article is more like a summary of main theories of human rights.
Rawl’s theory (Continued)
His opening line is that when you are asking if justice is done then the main idea is justice requires achievement of human rights. So, the next question is how to identify these rights and in response of
this, he gives us the two tools of “liberties and equalities.” Liberty could be understood as the ability to do something and that since everyone should have this ability, there will be equality. All the
authors till now have proposed systemic ideas as they are trying to identify a system of rights and for this they are constantly asking the question- what is the extend of this right?
In the Indian Constitution, the right to equality under Article 14 is without any restrictions but the other rights such as Article 16 or 29 are different manifestation of this inviolable right to equality. But,
these manifestations of equality have been subject to reasonable restrictions while the original idea of equality is not.
But Rawls has identified the rights and his focus is on implementation of these identified rights. For this, he first proposes the concept of ‘basic liberties’ and here he is using the term ‘liberty’ not in
singular but plural. So, he says everyone must have the most extensive set of liberties and this should be compatible with everyone’s liberties . For Rawls, these basic liberties are essentially those which
ensure “moral power” of people and this moral power is what confers rationality on all people to devise, conceptualize and implement an idea of good and be able to socially corporate in a fair
framework. So, for Rawls basic liberties are those which strengthen the moral power and endow rationality on people and this gives people an inherent sense of justice due to which you can be held
responsible for your actions. So, this rationality allows you to follow and do good and failure to do so will lead to you being called out to answer for their morally wrong actions. When an individual
loses their moral capacity then the question becomes if they should be called out and this is seen in case of criminal matters. This allows us to balance between liberty and equality.
Equality has two ideas- formal and substantive equality- in formal equality the analysis focuses on difference of treatment between people whereas in substantive if such differential treatment has
negative effects. Everyone may have basic liberties or opportunities but they may or may not be in a position to contextualize and use them due to a number of factors. Therefore, he introduces the
Difference principle which ensures that everyone is in a position to exercise their basic liberties by redistributing the liberties in the most egalitarian manner. This would entail granting people some basic
rights which can be identified as human rights, next you need to ensure that the underlying principle of moral power is ensured and this is ensured by balancing different liberties and equalities and
finally, some tinkering or redistribution has to be done to ensure people enjoy maximum liberties . When it comes to the exercise of redistribution, the responsibility then falls on the State and they will
engage in limitation of liberties and need to adhere to some justifications or principles.
Rights based on Dignity
Dignity is often seen as a super value and as a fountain for all other values. The major proposition here is that you start with dignity as the super value and all other values will flow from there. But this
might sound good in theory but not be fulfilled in real life. The answer is that the guiding principle should be that ‘dignity’ should be the core guiding principle and that dignity is not negotiable. But the
fundamental problem with this theory is that what is then understood by the term ‘dignity’ and that what is so inherent about this right that it needs to be protected over and above every other right.
In NALSA Case, dignity became the fundamental basis for the court’s decision and the interesting point is that the court went back to ‘dignity’ even though the Constitution itself doesn’t even mention
the word. In effect, the constitutional bench of the SC treated dignity as a super value here and treated it as the supreme power from which all other values flow. But Shestack is question the source of
‘dignity’ and why have we considered this as a super value. His argument then becomes that we have taken such concepts as granted and not questioned them and this is dangerous because if you make
dignity the touchstone of all rights without questioning its basis then it will lead to a situation where what gets defined as dignity will become the touchstone regardless of its real moral or immorality for
society.
The idea of dignity is most prominent is Kant’s theory of ‘self-worth’ of individuals.
But the problem with Rawl’s theory is that while the idea of Original position is that you can’t create it in real life.
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Dworking’s theory
Dworking tries to work to find a way to resolve the equality-liberty conflict as identified by Rawl’s and pushes it further by contextualizing Rawl’s framework in a political framework. For this,
Dworking starts with certain core ideas and assumptions and first discusses the idea of political morality, a feature most prominent in participatory democracies. But, a participatory democracy doesn’t
necessarily imply that all citizens will be equally participating as in the ancient societies only titled male landowners could vote and women and slave were excluded. So, Dworking begins his theory is
the basic assumption that “everyone can count for one, nobody for more” and this in fact, lays the starting point for utilitarianism.
But if you try to establish a rights system in a Utilitarian system then a situation will arise when there will be someone’s liberty which will be voted against always. So, if you allow equality to run freely
in such a system then people will be comfortable with having rights for themselves but not for others. Under the Utilitarian school, such a position would be justified on the grounds that regardless of the
inequality this promotes benefit of maximum people and thus, would be justified. Rawl’s solved this issue by arguing that so long as this remains an individual determination, this strengthens your moral
power then and it will be alright. But in participatory democracies, this isn’t possible as here identification of liberties is not happening by individuals in an original position but by the State or
Government.
So, Dworking takes a different approach and says that you need to identify particular liberties that will be voted against in the Utilitarian system then you need to protect special protection and
firewalling of these ideas. So, if you leave liberties to the democratic processes then protection of all liberties will become difficult. Then, you need not ask an inherency or divinity question to resolve
this issue but rather you need to identify them as likely to be violated and specifically firewall these liberties. In this manner, Dworking provides a similar and workable idea for liberties in comparison
with Rawls.
The problem arising under this model is that there is a marked difference between what is read in theory and happens on the ground level. The main issue is that “people don’t obey.”
Rights based on Reaction to injustice
As per this school of thought, the focus should be on providing a response to injustices but the problem of this school is that no response can be provided unless you identify what justice is in the first
place.
Theory based on Cultural Relativism
A new idea emerged amongst the Western Scholars where they became aware that it had become their burden to identify a system of rights and liberties. They realized that this was happening because
the Non-western (“Asian”) scholars were skeptical about ideas of liberty and equality as they were more concerned about ensuring conformity in their societies. Then the question arise that is it proper to
say that only Western societies have respect for individual rights and liberties?
Human Rights and Asian Values
By Amartya Sen
Western scholars had the idea of how these discussions are fundamental/integral part of the system.
The first white man’s burden was civilizing people from where imperial ideas flowed. The rights system became the second white man’s burden as it required them to ensure that this system was spread
everywhere. This was especially important for them because they saw non-western cultures as not having individual liberties and freedom as they are more concerned with conformity within their
civilization.
Second, he says that it is a problem to see Asia as a homogenous unit as there is immense diversity amongst countries here. So, from their heterogeneity certain differences would arise and then the
question for you would be if such heterogeneity results in different idea of liberties and equality.
Is it correct that Asian countries don’t have individual rights?
Sen argues that Asian nations have some focus on order and conformity, it does not necessarily mean absence of individual rights and liberties and that it is an unnecessary presumption. There is a
tendency of painting the situation in an “either-or” situation. Identity is not a monolith and neither is society and it has strands of all. It is a problem to see Asia as a homogenous unity as there is a high
level of heterogeneity and diversity. From heterogeneity arises certain differences and these differences create values. The only reason western scholars are concerned with this is because it is a part of
their culture since ages and they have a sense of condescension towards the Eastern nations. He blames Western nations of having done worse and the sense of liberty is not new and that even western
nations have only strands of liberties in their countries.
While looking at equality and liberty- he says you can either look at whether it exists compositely or in bits and pieces. He looks at freedom of religion and argues that if it is a formulation of liberty then
it exists everywhere and thus, it’s not a Western idea. He argues how the formulations and understandings of the value can be different but it does not mean that the values don’t exist there. And, that
implementation of these values can differ and because of this, there is no sense of universalism when it comes to HRs since it should be left to the society to decide which formulation it wants to adhere
to. This is exactly what is argued when it comes to the argument of cultural relativism versus universalism by Jerome Shestack.
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Sen’s problem came up with the Western scholars arguing that people in East Asia don’t have basic rights and liberties of ‘liberty’ and ‘autonomy’ that their people in the West enjoy. The Western
scholars argued that these values have existed for so long that they have become entrenched in their system and have gained authority such that what new values they are deriving now draws legitimacy
from them (legitimacy). Sen notes that using this argument the Western scholars claim that only they and not others can argue for primacy of such rights which have existed in their system. Also, they
argue that since they are the only ones who can claim legitimacy for such rights, they are then the only one who can talk about these rights and are the sole authority on interpretation of these two rights
(sole authority). The third argument of Western scholars relates to their interpretation of the rights being the only correct and legitimate formulation of such rights (eminent formulation).
Sen highlights these three claims of the Western scholars with regard to their interpretation of rights being superior than that of the Asian scholars. This pattern of claim is similar to that we see with
regard to rights of children vis-à-vis their parents/guardians. The parents/guardians claim a preeminent right over their children and may even claim a right to strike their children to discipline them. Sen
has a problem similar to this with regard to Western scholars claiming their rights being preeminent not only in their own country but also in that of other nations.
The problem then arising in ancient society is that what they claim is right or wrong essentially becomes what they think is right and this simply results in imposition of colonialism. Sen remarks that it’s
not that the Western countries haven’t violated individual rights themselves but have instead heavily violated them by colonializing other countries. Such Western scholars have reconciled this aberration
of violation of rights as being an exception and not being the general situation of violation of rights. That is, the Western scholars are essentially saying they are imposing benevolent ideas through
colonialism.
Sen says then asks if there is another way of looking at this where you can at least investigate if there is a modicum of basic rights in Eastern societies. He says the issue is mainly with regard to seeing
the starting point of rights and brings in the discussion of comprehensive v/s component view, each of which would result in different set of rights. His argument is that comprehensive view would in fact
result in no uniform set of rights as it is a myth in itself. So, he suggests that we should look using the component view whereby you talk about one abstract right and break it down into its different
aspect. Take for instance, the right of privacy, and this right has held different meaning before and after independence. But, we cannot say that we never had privacy in our country before independence
and we cannot completely reject it saying there was no form of privacy at all. Hence, just because the formulation varied with different societies or time frames, it cannot be claimed that the right didn’t
exist at all.
Relativism
So, for Sen, it is a fallacy to argue that there could be only one or preeminent set of rights and content of such rights and argues that there is a need and necessity of looking around such rights or else you
will fall into the same trap of ‘blinders’ as the Western scholars. So, he brings in the concept of ‘ relativism’ for which he says you can see practices, norms and values without their social context as it
this social context which feeds them with meaning and context. Hence, you cannot see such norms and values outside their context and if you do so, you will end up being an outsider who doesn’t live or
relate to the views and practice of that particular society. But, only the insiders can be said to have a legitimate view on their values and practices and not an outsider, this is the crux of the insider-
outsider view. Hence, Sen says the ingredients or contents of a right should come from an insider and this is referred to as the “ radical relativism.”
Universalism
The suggestion here is that human rights have certain ‘universalism’ and ‘commonness.’ Here, the question of considering the particular ‘social context’ doesn’t arise as the assumption is that the rights
have developed in a similar manner and thus, there cannot be an exception to such rights. This places radical relativism at the extreme end and radical universalism at the other end of the rights theory.
Then the argument then becomes that you should start from weak universalism but then you should allow lived experiences of society to permeate interpretation of rights and let shades of weak
relativism into the picture. Hence, you should allow tinkering of rights by looking at the particular social context and lived experiences of particular societies. Sen says moving towards universalism is
not the problem but it becomes an issue when people start claiming such rights as the only prominent rights. So, he says it is okay to argue for dignity and autonomy but it’s wrong to claim their
formulation of such rights is the only legitimate formulation which should be followed by everyone. Hence, he criticizes aspects of strong universalism here.
Heterogeneity
The question raised by Sen is- Is the presence of heterogeneity adequate proof that rights are adequately protected in a society? Also, does heterogeneity automatically imply respect for rights? Sen says
that heterogeneity is neither indicative of absence or presence of rights and it cannot be taken as an overriding proof for recognition and respect for rights. Hence, heterogeneity in itself is inadequate and
there is a need for a further sense of enquiry.
Universalistic idea of HRs-
1. HRs are intrinsic and emerge from humanity and don’t require any other justification
2. Since it is inherent, it is results in universalism
3. Since it emerges from human nature, it is inalienable
4. It is independent
While drafting the UN Convention, UDHR and other charters- this idea got repeated. The aggressors of the past now became the benevolent defender of the present.
One of the earliest critiques of this was Hannah Arendt, who identified as a German Jew and somebody who saw how all the rights worked out in reality. She argued while defining the idea of rights of
individuals that individual rights can be protected when such person lives in a polity. Hence, she said that you need to be part of a state or polity in order to enjoy rights and the people who are stateless
will be without the rights. Hence, the existence of democratic system or polity was the essential requirement of her theory of rights but this concept can be very contradictory as well.
During and after the war, there were huge number of stateless people for whom none of these rights materialized. This happened because people divorced the notion of rights from the community. For
her, before talking about human rights you have to talk about “right to have rights.’ The right to be part of a political setup or organized polity or else there is no one to protect your rights. In practice, for
one to have rights there is a preeminent right to be part of a political setup. Example, CAA. Stripped of citizenship, as mere human, they have no rights whatsoever. Hence, your rights arise from being
part of a polity and not by virtue of the fact that you are a ‘human.’ Simply, talking about rights otherwise rights will have no consequence.
The contradiction here arises from the fact that to have a right you need to be part of a polity but to make this claim itself you will have to be part of a polity and if you are not part of it, then how can you
raise such claim. For her, there is no point in talking about rights till you are not in an organized political setup as otherwise you are just nobody.
Shayla Ben Habib argues how Hannah is right about what she is talking in 1951 as back then sovereignty was at its extreme as they were not ready to give the idea of rights to a supranational entity. But
now you see a marked divergence since today you see a lot of supranational organizations that are above nations and there is a sense of sovereignty. Now people without any political set up have a forum
to claim their rights. How has sovereignty issue been resolved? How do you understand an individual having rights? Do you see rights as a property or as something else? Is the idea of State in this
dominant?