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HUMAN RIGHTS – THE EMPEROR’S CLOTHES

Updated: Aug 9, 2021

The jurisprudence behind human rights law is based on the assertion that being human creates an inherent dignity.[1] ‘Dignity’ means being worthy of respect and proponents of human rights laws would say that every human being is worthy of respect by virtue of being human.


On the face of it, this is a mere tautology that fails to tell us where human dignity comes from. Is it a fact or a right?[2] Does it derive from human nature or from reason?[3] The argument that human beings have equal dignity based on their human nature is problematic, as humans are plainly not equal in their attributes; some such as those with severe brain damage, would have less intelligence and ability to moralise than the great apes.

Rather than having equal dignity, as stated in the Universal Declaration on Human Rights, it could be argued that human beings simply have a minimum level of dignity by virtue of being human.

However, in this ARTICLE Professor Robin Fox demonstrates the absurdity of basing rights, such as those enshrined in the Universal Declaration of Rights, on human nature. Essentially nature is manifestly not egalitarian and of the human qualities that have a basis in human biology, most seem incompatible with human rights as they are commonly understood. Human rights as we understand them are a social construct stemming from the enlightenment; it is only once a mammal becomes conscious of its condition, that it can began to ask questions about rights and make assertions about the same.


Rather than looking for any empirical justification in human nature, a more effective foundation could probably be found with a priori reasoning via the philosophy of Immanuel Kant. Kant’s categorical imperative states:


“I ought never to act except in such a way that I could also will that my maxim should become a universal law”[4].


The categorical imperative involves treating oneself and all others:

never as merely means but always at the same time as ends in themselves”.[5]


Whilst Kantian philosophy could be used to justify modern human rights laws, these are far from an inevitable application of it. For instance, it is not clear whether according to Kant human dignity is conditional upon adhering to a moral code; whereas modern human rights advocates, would argue that human dignity which gives rise to human rights, is inalienable.[6]



This is a short article for such a complex subject. Nonetheless, considerable efforts have been made to find a firm philosophical grounding for human rights laws, to no avail.


Prior to the enactment of the Universal Declaration on Human Rights adopted by the United Nations, UNESCO commissioned an inquiry involving circa 150 academics to establish the philosophical foundations of human rights. The inquiry ended in failure and its findings were not published.[7]


If one were to argue that human rights laws lack a true philosophical foundation, an effective response for human rights advocates would be state that this criticism is a straw man. They could argue that human rights are exigent aspirations, based on a pragmatic attempt to improve the human condition. They could argue that the creation and preservation of human rights are inherently legitimate aims, that do not require any additional proof.


Furthermore, it would be rhetorically effective for them to list each of the Human Rights listed in the aforesaid declaration or the European Convention on Human Rights and ask detractors, which of those rights they were opposed to.


This would be a fair response, if proponents of human rights laws displayed candor and humility in accepting the lack of an objective foundation for such laws and the difficulty in deciding between competing rights and interests.


Instead, human rights are often proclaimed with fanaticism; (as they are no longer linked with any religion, they are usually proclaimed without any possibility of a compromise in temporal matters, due to the absence of any belief in the afterlife) those who believe they are on the side of human rights do not view their enemies has having legitimate but competing interests, but as enemies of humanity:


As Carl Schmitt observed:

The adversary is thus no longer called an enemy but a disturber of peace and is thereby designated to be an outlaw of humanity. A war waged to protect or expand economic power must, with the aid of propaganda, turn into a crusade and into the last war of humanity”. [8]


This passage seems prescient as the West seems to be escalating a dangerous conflict with China and Russia, proclaiming itself to be morally superior to those states due to its respect for human rights.[9]


Acknowledging the tenuous foundations of human rights jurisprudence might be a small step in de-escalating this conflict. This is a step that should be taken in any event, in the interests of intellectual honesty.

Notes

[1] See the preamble and article 1 of the UN, Universal Declaration of Human Rights [2] A De Benoist ‘Beyond Human Rights’ 2011, p188 [3] Ibid [4]I Kant ‘Groundwork to the Metaphysics of Morals’ (1785), trans M Gregor CUP 1997 at 4.403 [5] Ibid 4.434 [6] See ibid 4.436 ‘Autonomy is therefore the ground of the dignity of human nature’. What is meant by ‘autonomy’ in this context? See Dignity, Honour, and Human Rights: Kant's Perspective Rachel Bayefsky at p821 in particular. – 4.434 ‘Now morality is the condition under which alone a rational being can be an end in itself, since only through this is it possible to be a lawgiving member of the Kingdom of ends’, strongly suggests that morality is pre-condition for dignity. [7] De Benoist – supra p40 [8] C Schmitt ‘The Concept of the Political’ 1932 ‘Chicago University Press’ 2007 ed p79 [9] This is a sanctimonious comparison, given the absence of true free speech in the West, the current lockdowns allegedly imposed due to Covid 19 and the treatment of political dissidents.

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