Human Rights and Political Thought Luis Pavón y Guillermo Leal

Lectures Week 1 (Presentation; a Brief Introduction to the History of Human Rights Theory and Practice)

David Miller’s ‘’perineal questions’’ (interconnected)

a) Big questions of Political thought

- What’s the nature and purpose of political communities? Why do we need it to live in political community?

- What’s the role of political authority within political communities?

- Which is the best kind of government, that is, the best way of arranging political institutions, rules and practices towards their
proper end?

- Under which conditions can we say that a given form is just and legitimate?

b) Big questions of Human Rights Theory

- Which are the limits of political authority, and to what extent are we obliged to the law?

+ Who is a holder of rights? + What rights do we hold? + How strong rights are? Are they absolute?

- How do we interpret legal statements that recognize human rights (fundamental rights)?

c) Underlying Anthropological, Epistemic and Moral questions

- What is the nature of man? Is man essentially different from other living creatures?

- Is a man especially worth among all the creatures in the world?

- In what kind of communities do we live and why do we live in them at all?

- Can we objectively- rationally distinguish between right and wrong?

- Are there inherently wrong actions? Or does the end always justify the means?

- What is the origin of moral rules?

4 mainstream political-legal traditions: Positivism, Natural Law Tradition, Liberal, Marxist-critical

Mainstream of Moral, Epistemic and Anthropological Traditions:

- Utilitarianism (Hume): establishes the end justify the means.

- Deontological tautonymy (Kant): establishes the means justify the ends.

- Deontological + Virtue’s ethics (NLT, Germain Grisez): the means must permit the individuals further self-realization for
themselves and others.

Some core concepts of Political Thought:

- Nature of political communities

- Purpose of authority, as ‘’coordination of the shared activity of a community towards its own common good‘’

- Political authority, as a special kind of authority that wields the use of public force

- Government as the set of practices, rules and institutions through which political authority is exercised

- Government of the day, as the concrete people and/or corps that wield political authority in a given moment and over a given
community.

- State, set of institutions through which political authority is organized

- Modern State, ‘’A special kind of state that emerged around the XII century in Europe, and that holds the monopoly of a
political authority within the limits of a given territory’’ – Max Webber.

- Sovereignty; supreme and ultimate political power held by the modern state within a confined territory

- Positive law, the set of rules created by the political institution that, according to the rules and practices of a given state endow
political authority.
Natural Law Tradition (NTL):

Liberal Tradition:

Marxist/Critical tradition:

Foundation of Marxiol canon:

- 1920-30`s = Charles Beard + Vernon Parrington, ‘’Progressive Historiography’’

- 1970 = ‘’Critical Legal Studies’’ by Morton Horwitz in ‘’The Transformation of American Law’’ (1977)

- 1980`s onwards = Present Critical Legal Studies by Robert Unger in ‘’Critical Legal Studies Movement’’ (1983)

Landmarks in the history of human rights formalization (birth of modern constitutionalism):

> 1688, English Revolution  1689 English Bill of Rights

> 1776, American Revolution 1791 American Bill of Rights

> 1789, French Revolution  1789 French declaration of the Rights of Man and of Citizen

1939-1945 (WWII) + 1948 Universal declaration of Human Rights = Birth of international Human Rights law

‘’Political Philosophy’’ (PP) by David Miller (Chapter 1-2)

Chapter 1: Why we need PP?

- PP can be defined as investigation into nature, because and effect of good/bad governance (impacts in citizens and is present in
political life)

- Government is the head of all state figures (police, judge, ministers…)

- Fail of Marxism is to apply in underdeveloped states  democracy + liberalism through free market would arrive the ‘’end of
history’’ with states with similar form government.

- Political thought can be put in place according to socio-political shift that may fuse society and their political thought

- Political philosophers depend on questions of governance.

Chapter 2: Political authority

- We’re creatures of the state, but authority only works when the majority legitimates it (nor dictatorial nor voluntary)

- Trust is fundamental pivot for society

- Anarchist ‘’authority’’ formed through communities or market

- Communities: penalties are exclusion based on content of community, achieved through individual’s motivation to be accepted

- Market anarchists/libertarians: pay on services the state currently provides, firms end up as top of society by the power to follow
or abstain from acting, medically, educational…

- In such system, a primary market would exist and a second that would follow as arbitration to disputes

- With the existence of consent dispute protocol would avoid escalation and physical violence.

- Another problem is ‘’public goods’’ in liberationism

- The question resumes to what kind of political authority we want?

- ‘’Political obligations’’ created by social agreements, following them we act for our collective benefit, better than anarchy
(Hobbes)

- Benefits and its distribution are an essential conflict ‘’substances fairness’’, give reasonable distribution among citizens that
comply, but is more ‘’compliance’’ rewarded?

- In pure democracy, free speech and protesting rights are acceptable, but not civil disobedience.

‘’Antigone’’ by Sophocles

Context: Civil war in Greece (Thebes) between Eteocles and Polyneices. Eteocles wins but they both die, so Creon takes the king’s
place and states a law: ‘’…death by stoning to anyone who breaks that law… let no one honor him (Polyneices) with burial or
mourning.’’ But Antigone decides consciously to disobey the law and buries him anyways, being punished to death.

Dilemma: The existence of certain inherent human rights, common to all human beings and superior to any man-made laws, is
acknowledged.

> Why do we need to live in political communities and why do we need any political authority at all?

Creon’s anthropological and moral conceptions, based on individualism, highlights that state’s purpose is security.

> What are the limits of political authority?

No limits = tyranny, therefore could be formal limits as Rule of Law (as Ismene justifies and critiques Antigone actions), but it opens
a new question: who created the law? When? Through which process?

Ismene displays legal positivism through such role of law, however, also through liberal-democratic ideals of legality as ‘’the citizens
will.’’

On the other hand, Antigone demonstrates formal and substantial limits to the law, in this case based on the NL of Greek tradition,
moral conscience and that is over Ismene’s substantive limit based on the citizens will.

> The origins of the limits of Political Authority?

NLT: objective, intelligible, universal values, and rules

Liberalism: social moral consensus and majoritarianism

Positivism: Rule of Law, valid if it’s formed in the valid process

> What moves us to the obey the law?

Law as mere force  can only move appealing to self-interest, giving ‘’motives for actions.’’

Law as a special kind of moral reason for actions

> Do we have a moral right and/or a moral obligation to disobey deeply unjust laws?

Law as mere force, there aren’t rights against the law.

The same reasons law gives us to act are the grounds also to the right to disobey.

> The four consecutive debates

* Security-safety vs Social nature friendship * Formal limits vs substantial limits

* Laws as mere force vs laws as ‘’moral’’ reason for action * Liberalism vs NLT vs Positivism

Sophocles and Human Rights:

- Main difference between Creon and Antigone to sustain their position is the concept of Polyneices as a criminal or not.

- Moreover, in Antique Greece, the king was believed to be chosen by the gods. Therefore, his law is their law.  human law =
divine law?

- Antigone’s main conflict lies in the distinction between law and justice. Human Law does not always guarantee justice, whereas
Divine Law does.

- For Antigone, humans are imperfect  laws made by humans are imperfect  Laws of the gods are perfect (Concept explained by
Thomas Aquinas)

- Creon lays his argument in his political power, and Antigone lays hers in a moral and ethical power. Although at first it seems that
the political power (Human Law) is the strongest, since Antigone dies, then Creon realizes that Antigone was right. She proves that
moral and ethical powers, based on Divine Law, prevail over Human Law.

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Human Laws (democracy):

Principle of legality (no one can be convicted of a crime without a previously published legal text which clearly describes the crime)

Principle of majority (more than half of the voters involved, and rule by such a majority is thought to be to the benefit of more than rule by less than
half)

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