Sunteți pe pagina 1din 6

INL 3011 European Court of Human Rights John-Claude Mizzi | 201889(M) | LL.B.

III Human Rights are those fundamental freedoms and entitlements that each person possesses by virtue of nothing more than a status as a human being. Hofmann and Rowe -Introduction Hoffmann and Rowe have said that Human Rights are those fundamental freedoms and entitlements that each person possesses by virtue of nothing more than a status as a human being. Griffin identically held that human rights are those rights that humans have simply in virtue of being human 1. However, one must ask two fundamental questions before propelling ahead What is a right? What is a human? Being among the vanguard of the human rights philosophers, like Hoffmann and Rowe, he has written many works on the queries just mentioned, but for the purposes of this essay I am only interested in discerning whether these two concepts have been successfully brought together in order to eventually confirm the validity of the statement in issue. Though I admit Hoffmann and Rowe to be both impeccable scholars on the subject my preferred backbone writing will be that of Griffin and John Gardner, the justification being mere familiarity. Three Propositions Three propositions are made by Gardner2 as regards Griffin s3 analysis of the concept of a human right. Firstly he annunciates that a human right is a right. Then he states that a human right is a right that humans have. Finally he heralds that a human right (if any exists) is a right that humans have simply in virtue of being human. Gardner concurs with most of what Griffin exclaims through his first two propositions, allowing for reasonable doubts to surface only when he comes to the third proposition. Regarding the first proposition one s ordinary response would be a nod of complete welcoming; but there are those who would try to case a dubious light on this submission. They will says that human rights are not rights because it is not the case that wherever there a breach of such a right the subject can obtain a remedy for the concerned violation. The proposition says that human rights are right, thereby creating the correlation between human rights and rights. A faithful understanding of the proposition would lead one to say that if one cannot obtain a remedy for a human rights violation, then one cannot rectify the harm brought about by the breach of a right. The persistent
The Presidential Address: Discrepancies between the best philosophical account of human rights and the international law of human rights by James Griffin, Proceedings of the Aristotelian Society, New Series, Vol. 101 (2001), pp. 1-28. 2 Simply in Virtue of Being Human : the Whos and Whys of Human Rights by John Gardner, Journal of Ethics & Social Philosophy, Vol. 2 NO. 2. 3 On Human Rights by James Griffin, Oxford University Press, 2008.
1

INL 3011 European Court of Human Rights John-Claude Mizzi | 201889(M) | LL.B. III objector would then exclaim But are they really rights? in which case the response would be that all this is irrelevant to the truth of the proposition, which merely says that human rights are rights, not that they are rights endowed with some extra property that might be obscurely designated by the word really .4 The second proposition which Griffin makes, that a human right is a right that humans have, is on equally solid ground as his first one. Not only does it have implications of its own, as shall be uncovered shortly, it also leaves the truth of the first proposition open. The second proposition adds onto the first two thoughts: There are human rights and humans have them and Such human rights as may exist are rights that humans have. The former transforms the second proposition into an existential claim, in the sense that the human rights argument is analogous to the unicorn argument. There is the understanding of what a unicorn conceptually implies, but each and every time its existence is questioned, the answer is always to the negative. Similarly, this former auxiliary claim of the second proposition may also fall victim to the conceptual-but-not-existent illustration. Griffin is certainly not making an existential claim in his second proposition. The latter supportive claim, that such human rights as may exist are rights that humans have lifts the fog of doubt accumulated through the former claim. Quite conceivably, it is possible that there are not human rights in the way that there are no unicorns, but this is irrelevant to the truth of the second proposition, and thus irrelevant to the truth which Griffin intends to communicate. Similar to the first proposition, the second one merely sets out the conceptual criterion, not asserting that there is a right in the world which meets the criteria which the proposition formulates. Be that as it may the criterion can be met by almost all rights, naturally barring those which belong to non-human animals and legal persons. One must also make reference, while on the topic, to those rights which are non-human ones but which can only be invoked by human agents, such as the rights over servitudes which humans have. This is precisely what Griffin avoids by adding his third touchstone, his third proposition, that a human right (if any exist) is a right that humans have simply in virtue of being human. After having built up an unflinching foundation I can move onto the primary concern of this essay, Hoffmann and Rowe s, and in fact Griffin s words simply in virtue of being human . It is due to this third criterion that a right over a servitude does not constitute a human right. A person does not have a right over a servitude simply in virtue of being human and it is certainly not granted to him simply in virtue of being a human; one need not have a right over a servitude to be a

Gardner, Loc.cit.

INL 3011 European Court of Human Rights John-Claude Mizzi | 201889(M) | LL.B. III human being and conversely being human is neither necessary nor sufficient to have a right over a servitude. A consideration to be made on this matter is the issue of torture5, which poses a problem to the aforementioned issue of humanity as sufficient and necessary cause for a right to be a human right. The right to not be tortured is not a right which only human being have the quality of humanity is not necessary, though sufficient to be protected from torturous treatment. This is a clear sign of vagueness in Griffin s work, and this is probably a good idea as an analysis of a concept should be geared at illuminating, rather than suppressing, its various indeterminacies at the margin.6 Simply in Virtue of being Human Conditions and Reasons7

In his evaluation of Griffin s simply in virtue of being human , Gardner found that it can be dissected into a further two sub-propositions. The first is that a human right (if any exists) is a right that a right-holder has on condition that the right-holder is a human; the second is that a human right (if any exists) is a right that a right-holder has for the reason that the right-holder is human. Gardner s propositions are intentionally (and symmetrically) vague . While in the former

proposition a right is a human right if all humans possess it, in the latter he is illustrating that a right is a human right if there is justification for its existence. Ergo, while in the former the human species as a whole is considered, in the case of the latter it is only the individual justification which matters. Now, there is great temptation to collapse Gardner s two propositions onto each other. This provocation derives itself from the extensive examination of what Gardner refers to as plain moral rights . These are those rights which have not yet been institutionalized. A plain moral right s validity is derived from why it is justified in belonging to a human. And of course one may deduce that if it is warranted to one human, then, under Gardner s former proposition, all humans are entitled to that same plain moral right. But does the condition entail the reason? At times, particularly in foetusrelated debates, there would be agreement on whether that subject has a plain moral right, but there is disagreement concerning its existential justification. It is clear that Gardner s dissection of Griffin s proposition is justified in full. Further support of this is H.L.A. Hart s content independent considerations8, which refer to those stipulations which do not
5 6

Gardner, Loc.cit. Simply in Virtue of Being Human : the Whos and Whys of Human Rights by John Gardner, Journal of Ethics & Social Philosophy, Vol. 2 NO. 2. ~ Although Griffin does not seem to agree: First Steps in an Account of Human Rights by James Griffin, European Journal of Philosophy 9 (2001), 306 at 306-7. 7 Gardner, Loc.cit. 8 Legal and Moral Obligation by H.L.A. Hart, in A.I. Melden (ed.), Essays in Moral Philosophy (Seattle 1958), 82 at 102; Legal Rights by J. Raz, Oxford Journal of Legal Studies 4 (1984), 1 at 6ff.

INL 3011 European Court of Human Rights John-Claude Mizzi | 201889(M) | LL.B. III allow for the condition to be transparently seen in the reason, and which do not allow the reason to be seen in the condition. In the case of institutionalized rights, where the rights come in various shapes and sizes, so to speak, one cannot say that Gardner s former proposition entails his latter this because the

institutionalized rights do not usually need justification because of the fact that they have already been posited and the raison d tre is not really required in the same intensity as it is required for plain moral rights. Content independent considerations do most of the work in the consideration of whether a right is truly a human right, in that it justifies the claim. But one cannot go about assuming that the condition justifies the reason for the existence and applicability of the right, or that it in fact either one is one and the same as the other and in the other. Universality and Human Rights Griffin says that the fact of being human is a ground for having human rights. He attests that a ground is a condition that is also a reason, and a ground is a condition because it is a reason. Hence Griffin thinks that one s humanity is a condition for one s having a human right because it is a reason for one s having that right. In reading this it can be clearly observed that Gardner s two propositions on Griffin s third are being combined and being made co-dependent, though Gardner pragmatically and theoretically separates reason and condition. Griffin goes further in saying that one s humanity cannot be a condition for human rights unless it is the reason for one s having it in the first place. Its force as a condition may only be derived from its force as a reason. It is within this context that the Universality of human rights should be understood. However, absolute universality of human rights is short -lived with Griffin when he makes note of practicalities , which serve both to limit universality as well as extend the rights scope. Practical variations to their rationales allow human rights to vary in the scope of their protection over time and place, and hence inevitably from one human being to another9. Griffin realises the extreme importance of content independent rights through his notion of practicalities, but he nails his colours to the mast of subjective justification, Gardner s Universality out- Universality In
10

(UoUi), concept. The existence of content independent justifications licences

Anthropology and Human Rights by Ellen Messer, Annual Review of Anthropology, Vol. 22 (1993), pp. 221-

249.
10

Gardner, Loc.Cit.

INL 3011 European Court of Human Rights John-Claude Mizzi | 201889(M) | LL.B. III him to abandon the UoUi justifications, to adhere to Gardner s first justification, while doing away with his second. It allows him to exclaim that human right do in fact have universal application, but not because they have universal justification. Rather, this claim would be justified by mentioning that there are various convergent morally acceptable justifications, varying from human being to human being, and all the different justifications of which may be marshalled in support of the same right, thereby acquiring the universal justification for the right. Humanity by itself lacks the force to justify a human right because in effect it cannot justify anything. A biological characteristic can never contain, singly, the support for the universality of rights claim. It follows then, that there must necessarily be included some moral argument in defence of human rights. Until this moral argument is unmasked the apparently similar relationship between Gardner s first and second claims are mere illusion. There is arguably much more to understanding humanity than a study of human biology. Human beings are rational animals, and being rational makes them accountable to reasons. Griffin Appreciates this, and in fact uses Personhood to designate out humanity, in order to exclude the wooden view of the human s biological classification without the built-in moral significance. Griffin s Personhood
11

imposes an obvious constraint on the content of such rights. Rights are

human rights not because they accomplish human flourishing, but because they are indispensible to the status of humans. There is a gap between treating one as a human being ought to be treated, and making sure that his life as a human being goes well. Thus, personhood imposes both a minimum , so to speak, for rights as well as it is the justification for their existence. The Dignity of the Human On many occasions people have held that there is a particular connection between respecting human rights and respecting human dignity. This is, however, a mistake. To respect human dignity is simply to treat a person as a human being, to treat them in a way consonant with their humanity. Human rights violations are always an attack on human dignity. From this some draw the conclusion that human rights must be justified in terms of human dignity, that the constituents of human dignity must first be independently specified in order to determine what qualifies as a human right. While I acknowledge that there are some independent constituents of human dignity one s dignity as a human being is also constituted by one s possession of human rights. The list of human rights must first be drawn up in order to get a complete picture of what qualifies as an assault on human dignity.
11

Griffin, Loc. Cit.

INL 3011 European Court of Human Rights John-Claude Mizzi | 201889(M) | LL.B. III Conclusion Simply in Virtue of being human gives the prima facie impression of clarity but as was shown above there is more to it than meets the eye. The statement is completely true, in that no shadow of a doubt can be rightfully poured onto it, but this does not mean that definiteness in the statement is apparent. Human biological characteristics alone are not sufficient to justify the existence of a right being a human right, and universality is not dependant solely on the biological characteristic there is a deeper moral raison d'tre in operation. Finally, human dignity is not the source of the right, but it is the effect of the cause which is the human right, though it is very often mistaken. -Bibliography 1. 2. 3. The Concept of Rights On Human Rights George W. Rainbolt

James Griffin

Simply in Virtue of Being Human : the Whos and Whys of Human Rights by John Gardner, Journal of Ethics & Social Philosophy, Vol. 2 NO. 2.

4.

First Steps in an Account of Human Rights by James Griffin, European Journal of Philosophy 9 (2001), 306 at 306-7.

5.

The Presidential Address: Discrepancies between the best philosophical account of human rights and the international law of human rights by James Griffin, Proceedings of the Aristotelian Society, New Series, Vol. 101 (2001), pp. 1-28.

6. 7.

Human Rights without Foundations by Joseph Raz Anthropology and Human Rights by Ellen Messer, Annual Review of Anthropology, Vol. 22 (1993), pp. 221-249.

8.

Personhood and Rights by Daniel N. Hoffmann, Palgrave Macmillan Journals, Polity, Vol. 19, No. 1 (Autumn, 1986), pp.74-96.

9.

Legal and Moral Obligation by H.L.A. Hart, in A.I. Melden (ed.), Essays in Moral Philosophy (Seattle 1958), 82 at 102.

10. Legal Rights by J. Raz, Oxford Journal of Legal Studies 4 (1984), 1 at 6ff.

S-ar putea să vă placă și