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Introduction: Theories of Rights and Political and Legal Instruments
- University of Ottawa Press
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Introduction William Sweet 1. Introduction In his famous lecture "The Rights of Man,"1 the French philosopher Jacques Maritain draws attention to a remarkable event which occurred shortly after the end of the Second World War. Despite the diversity of interests, histories, cultures, politics, and ideologies, nations from every part of the planet were able to agree on a list of universal human rights. And for the more than fifty years since, the United Nations Universal Declaration of Human Rights (UDHR) of 1948 and the rights it enumerates have played a central role in calls forjustice, equality, and the respect of human dignity throughout the world. The Universal Declaration explicitly identified well over two dozen "human rights." Aside from the principal rights to "life, liberty and security of person" (Article 3), freedom of conscience and thought and expression (Article 19), and freedom of peaceful assembly and association (Article 20), the "dignity and the free development of [human] personality" entailed cultural and economic rights: the right to participate freely in the cultural life of the community (Article 27); to social security (Article 22), including the right to work; and to just remuneration, including the right to equal pay for equal work (Article 23). Further, people had a "right to rest and leisure" (Article 24), a "right to a standard of living adequate for the health and well-being" (Article 25), and a right to education (Article 26). The range of rights enumerated in the UDHR was impressive. Maritain thought a complete account of human rights required a philosophical theory. He argued that while rational justifications were "powerless to create agreement among men," they nevertheless "are indispensable."2 Without a foundation, the list of rights would soon be "inflated,"3 and people would not be sure that what they assented to was "true and rationallyvalid."4 With the wrong foundation, rights would be "bankrupt"5 and the proper object of criticism and scepticism. Maritain admitted that the quest for an underlyingtheory is not easy that it "brings into play the whole system of moral and metaphysical (and antimetaphysical ) certainties to which each individualsubscribes,"6 and that even if we find the right foundation, knowledge of it may be "obscure" and "unsystematic."7 Still, he thought the "practical agreement" on the "practical truths"8 expressed in the UDHR was a great achievement, and he was confident that "a new age of THEORIES OF RIGHTS AND POLITICAL AND LEGAL INSTRUMENTS 2 William Sweet civilization" would "recognize and define the rights of the human being in his social, economic, and cultural functions."9 Yet in the years since the adoption of the UDHR, respect for the rights it proclaims has been atbest limited. Once-stable societies have collapsed into bloody civil war, totalitarian and single-party states abound, colonialism has often been replaced only by more subtle forms of imperialism, and the gap between the rich and poor has never been greater. Appeals to rights have often been ineffective. Some critics reject the rights listed in the UDHR altogether, and even defenders of human rights have had difficulty accepting several of the articles of the UDHR as stating genuine "rights." Nor have the old objections of Burke, Bentham, and Marx to universal humanrights- that they areahistorical, vague, imprecise, insensitive to cultural differences, metaphysically problematic, and serve to reinforce the status quo - lost their influence.10 Today we may ask whether the circumstances and grounds which led to the formulation of theories of rights, bills of rights, the UDHR, and other declarations are still relevant. What do we make of "human rights" more than half a century after theUniversal Declaration- a declaration forwhich many, like Maritain, had so much hope? How does the contemporary practice of rights fit with traditional theories of rights? What has been the effect of political and legal instruments such as the UDHR? What have events of the recent past shown us about these theories and declarations? It is to such questions that the essays in this volume seek to provide an answer. 2. Theories of Rights How does philosophical theory bear on the existence of rights and, specifically, on the rights enumerated in the UDHR? To answer this, we need to consider both the context in which the contemporary discussion of human rights has arisen, and why philosophical theories of rights have been challenged. A principal challenge to human rights is that the term "human rights" is vague and ambiguous. For some, the term refers to those freedoms or powers that...