The philosophy of human rights attempts to examine the underlying basis of the concept of human rights and critically looks at its content and justification. Several theoretical approaches have been advanced to explain how and why the concept of human rights developed.
One of the oldest Western philosophies on human rights is that they are a product of a natural law, stemming from different philosophical or religious grounds. Other theories hold that human rights codify moral behavior which is a human social product developed by a process of biological and social evolution (associated with Hume). Human rights are also described as a sociological pattern of rule setting (as in the sociological theory of law and the work of Weber). These approaches include the notion that individuals in a society accept rules from legitimate authority in exchange for security and economic advantage (as in Rawls) – a social contract. Contemporary discussions on human rights are largely shaped by two dominant theories: the interest theory and the will theory. The interest theory holds that the primary function of human rights is to protect and promote fundamental human interests, whereas the will theory bases the justification of human rights on the uniquely human capacity for autonomy and freedom.
Natural rights
Natural law theories base human rights on a "natural" moral, religious or even biological order that is independent of transitory human laws or traditions.
Socrates and his philosophic heirs, Plato and Aristotle, posited the existence of natural justice or natural right (δίκαιον φυσικόν dikaion physikon; Latin ius naturale). Of these, Aristotle is often said to be the father of natural law,Shellens (1959) although evidence for this is due largely to the interpretations of his work by Thomas Aquinas.Jaffa (1979)
The development of this tradition of natural justice into one of natural law is usually attributed to the Stoics.Sills (1968, 1972) Natural Law
Some of the early Church Fathers sought to incorporate the until then pagan concept of natural law into Christianity. Natural law theories have featured greatly in the philosophies of Thomas Aquinas, Francisco Suárez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, and John Locke.
One of the most important "Natural Human Right" is right to life. Ancient Indian texts suggest that Lord Mahavira, the founder of Jain Sect, was also the founder of this Right To Life. His teachings & principles focused on the doctrine or philosophy, " Live & Let Live" . This philosophy is based on the principle of non-vigilance.
In the 16th century, asked by the Spanish monarchs to investigate the legitimacy of claims to land dominion by the indios of Latin America, Francisco de Vitoria expounded a theory of natural rights, especially in his famous Relectio de Indis.
In the 17th century Thomas Hobbes founded a contractualist theory of legal positivism beginning from the principle that man in the state of nature, which is to say without a "commonwealth" (a state) is in a state of constant war one with the other and thus in fear of his life and possessions (there being no property nor right without a sovereign to define it). Hobbes asserted natural law as how a rational human, seeking to survive and prosper, would act; the first principle of natural law being to seek peace, in which is self-preservation. Natural law (which Hobbes accepted was a misnomer, there being no law without a commonwealth) was discovered by considering humankind's natural interests, whereas previous philosophers had said that natural rights were discovered by considering the natural law. In Hobbes' opinion, the only way natural law could prevail was for human beings to agree to create a commonwealth by submitting to the command of a sovereign, whether an individual or an assembly of individuals. In this lay the foundations of the theory of a social contract between the governed and the governor.
Hugo Grotius based his philosophy of international law on natural law. He wrote that "even the will of an omnipotent being cannot change or abrogate" natural law, which "would maintain its objective validity even if we should assume the impossible, that there is no God or that he does not care for human affairs." (De iure belli ac pacis, Prolegomeni XI). This is the famous argument etiamsi daremus (non esse Deum), that made natural law no longer dependent on theology.
John Locke incorporated natural law into many of his theories and philosophy, especially in Two Treatises of Government. Locke turned Hobbes' prescription around, saying that if the ruler went against natural law and failed to protect "life, liberty, and property," people could justifiably overthrow the existing state and create a new one.
The Belgian philosopher of law Frank Van Dun is one among those who are elaborating a secular conception of natural law in the liberal tradition. There are also emerging and secular forms of natural law theory that define human rights as derivative of the notion of universal human dignity.Kohen (2007)
"Dignity" is a key term for the discussion of human rights. The Universal Declaration of Human Rights does not justify its claims on any philosophical basis, but rather it simply appeals to human dignity.
Karl Rahner discusses human dignity as it relates to freedom. Specifically, his ideas of freedom relate to human rights as an appeal to the freedom to communicate with the divine. As embodied individuals who can have this freedom and dignity threatened by external forces, the protection of this dignity takes on an appeal to protect human rights.
The term "human rights" has replaced the term "natural rights" in popularity, because the rights are less and less frequently seen as requiring natural law for their existence. For some, the debate on human rights remains thus a debate around the correct interpretation of natural law, and human rights themselves a positive, but reductionist, expression thereof.Jakob Cornides, Natural and Un-Natural Law , New York, C-Fam (2010)
Social contract The English philosopher Thomas Hobbes suggested the existence of a hypothetical social contract where a group of free individuals agree for the sake of preservation to form institutions to govern them. They give up their natural complete liberty in exchange for protection from the Sovereign. This led to John Locke's theory that a failure of the government to secure rights is a failure which justifies the removal of the government, and was mirrored in later postulation by Jean-Jacques Rousseau in his "Du Contrat Social" (The Social Contract).
International equity expert Paul Finn has echoed this view:
The relationship between government and the governed in countries which follow the English law tradition is a fiduciary one. In equity law, a politician's fiduciary obligations are not only the duties of good faith and loyalty, but also include duties of skill and competence in managing a country and its people. Originating from within the Courts of Equity, the fiduciary concept exists to prevent those holding positions of power from abusing their authority. The fiduciary relationship between government and the governed arises from the governments ability to control people with the exercise of its power. In effect, if a government has the power to abolish any rights, it is equally burdened with the fiduciary duty to protect such an interest because it would benefit from the exercise of its own discretion to extinguish rights which it alone had the power to dispose of.Salevao (2005) p.76
Reciprocity The Golden Rule, or the ethic of reciprocity states that one must do unto others as one would be treated themselves; the principle being that reciprocal recognition and respect of rights ensures that one's own rights will be protected. This principle can be found in all the world's major religions in only slightly differing forms, and was enshrined in the "Declaration Toward a Global Ethic" by the Parliament of the World's Religions in 1993.
Soviet concept of human rights
Soviet concept of human rights was different from conceptions prevalent in the West. According to Western legal theory, "it is the individual who is the beneficiary of human rights which are to be asserted against the government", whereas Soviet law declared that state is the source of human rights.Lambelet, Doriane. "The Contradiction Between Soviet and American Human Rights Doctrine: Reconciliation Through Perestroika and Pragmatism." 7 Boston University International Law Journal. 1989. p. 61-62. Therefore, Soviet legal system regarded law as an arm of politics and courts as agencies of the government. Extensive extra-judiciary powers were given to the Soviet secret police agencies. The regime abolished Western rule of law, civil liberties, protection of law and guarantees of property.Richard Pipes (2001) Communism Weidenfeld & Nicolson. Richard Pipes (1994) Russia Under the Bolshevik Regime. Vintage. ., pages 401–403. According to Vladimir Lenin, the purpose of socialist courts was "not to eliminate terror ... but to substantiate it and legitimize in principle".
Crime was determined not as the infraction of law, but as any action which could threaten the Soviet state and society. For example, a desire to make a profit could be interpreted as a counter-revolutionary activity punishable by death. The liquidation and deportation of millions peasants in 1928–31 was carried out within the terms of Soviet Civil Code.Richard Pipes Russia Under the Bolshevik Regime, Vintage books, Random House Inc., New York, 1995, , pages 402–403 Some Soviet legal scholars even asserted that "criminal repression" may be applied in the absence of guilt.". Martin Latsis, chief of the Ukrainian Cheka explained: "Do not look in the file of incriminating evidence to see whether or not the accused rose up against the Soviets with arms or words. Ask him instead to which class he belongs, what is his background, his education, his profession. These are the questions that will determine the fate of the accused. That is the meaning and essence of the Red Terror."Yevgenia Albats and Catherine A. Fitzpatrick. The State Within a State: The KGB and Its Hold on Russia – Past, Present, and Future, 1994. .
The purpose of public trials was "not to demonstrate the existence or absence of a crime – that was predetermined by the appropriate party authorities – but to provide yet another forum for political agitation and propaganda for the instruction of the citizenry (see Moscow Trials for example). Defense lawyers, who had to be party members, were required to take their client's guilt for granted..."
Other theories of human rights The philosopher John Finnis argues that human rights are justifiable on the grounds of their instrumental value in creating the necessary conditions for human well-being.Finnis (1980) Interest theories highlight the duty to respect the rights of other individuals on grounds of self-interest:
The biological theory considers the comparative reproductive advantage of human social behavior based on empathy and altruism in the context of natural selection.Arnhart (1998)Clayton, Schloss (2004)Paul, Miller, Paul (2001): Arnhart, Larry. Thomistic Natural Law as Darwinian Natural Right p.1
Human security is an emerging school of thought which challenges the traditional, state-based conception of security and argues that a people-focused approach to security is more appropriate in the modern interdependent world and would be more effective in advancing the security of individuals and societies across the globe.
Ipso facto legal rights theory