Today, through the United Nations and its half century of enactments, an impressive body of human rights doctrine is embodied in international law. This is in sharp contrast to the situation fifty years ago when there was no body of international human rights law.
Having come this far legally, why then should one still be concerned with the philosophic foundations of such international human rights law? To philosophize, Plato taught, is to come to know oneself. Others say that the special function of philosophy is to deepen our understanding of truth. Still others see the philosopher as a judge, assessing the varieties of human experience and pronouncing on the claim to knowledge. 1 Yet, still more reasons exist for exploring the philosophic underpinnings of human rights law.
First, one’s own attitudes toward the subject of international human rights law are likely to remain obscure unless one understands the philosophies that shape them. 2 Piaget’s statement that “morality is the logic of action” contains a striking insight. [End Page 201]
Second, if one understands the law addressed, one is more amenable to the authority of the international law of human rights. That trait is particularly valuable for an arena that still lacks formal enforcement mechanisms. Stated another way, one furthers fidelity to human rights law by understanding the moral justifications that underlie that law.
Third, understanding the philosophic foundations of the law helps one devise a translation formula that will permit men and women to speak to each other across the gulfs of creed and dogma, a necessary exercise for universal recognition of international law principles.
What then is the segment of philosophy examined when delving into human rights? The answer is that human rights are a set of moral principles and their justification lies in the province of moral philosophy. This article explores that field. 3
This article will first address the historical sources of human rights justifications, next survey key modern human rights theories, and then analyze some of the current conflicts in human rights theory. At best, it can only touch on the teachings in a field that is complex, vast, and too often obscure. 4
II. The Nature of Human Rights
One of the initial questions in any philosophic inquiry is what is meant by human rights. The question is not trivial. Human beings, as Sartre said, are “stalkers of meaning.” Meaning tells one “why.” Particularly in the international sphere, where diverse cultures are involved, where positivist underpinnings are shaky, and where implementation mechanisms are fragile, definition can be crucial. Indeed, some philosophic schools assert that the entire task of philosophy centers on meaning. How one understands the meaning of human rights will influence one’s judgment on such issues as which rights are regarded as universal, which should be given priority, which can be overruled by other interests, which call for international [End Page 202] pressures, which can demand programs for implementation, and for which one will fight.
What is meant by human rights? To speak of human rights requires a conception of what rights one possesses by virtue of being human. That does not mean human rights in the self-evident sense that those who have them are human, but rather, the rights that human beings have simply because they are human beings and independent of their varying social circumstances and degrees of merit.
Some scholars identify human rights as those that are “important,” “moral,” and “universal.” It is comforting to adorn human rights with those characteristics; but, such attributes themselves contain ambiguities. For example, when one says a right is “important” enough to be a human right, one may be speaking of one or more of the following qualities: (1) intrinsic value; (2) instrumental value; (3) value to a scheme of rights; (4) importance in not being outweighed by other considerations; or (5) importance as structural support for the system of the good life. “Universal” and “moral” are perhaps even more complicated words. What makes certain rights universal, moral, and important, and who decides? 5
Intuitive moral philosophers claim that definitions of human rights are futile because they involve moral judgments that must be self-evident...