Rights and Cultural Traditions

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 for justice, 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 rationally valid."(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 underlying theory is not easy ­ that it "brings into play the whole system of moral and metaphysical (and anti-metaphysical) certainties to which each individual subscribes,"(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 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 at best 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 human rights ­ that they are ahistorical, 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 the Universal Declaration ­ a declaration for which 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 are or can be claimed by human beings, which are derived from the dignity and worth inherent in (or ascribed to) human persons, and which enable them to engage in activities essential to their growth and development. These rights are said to be universal and, generally, include rights to life, liberty, the security of the person, property, equal protection of the law, freedom of conscience and thought, free religious practice and expression, peaceful assembly and association, and to take part in government.

But others see human rights as fundamentally "equality rights" or rights of "non- discrimination." Here, proponents focus on the cultural and economic sphere ­ the rights of linguistic, racial, and visible minorities, of the poor and the marginalized, and of the disabled. They are particularly concerned with addressing "abuses," such as denying education or participation in culture, or economic development. Some advocates see these "abuses" to include"business practices that limit access to loans, mortgages, bank accounts, telephone services, and other services for people who are on welfare or are unemployed."(11)

This vagueness or ambiguity in the term "human rights" is reflected in the differences concerning the origin of rights. For some, rights are principles "discovered" in nature, which serve as a basis for individuals to challenge the arbitrary authority of the state. For others, however, rights have their home in political and legal instruments ­ such as charters, declarations, constitutions, international agreements, conventions, and protocols ­ which presuppose the existence and support of communities and states.

How can we account for these different understandings of the concept of rights? The history of the "discourse" of human rights is fairly well known. While the existence of "natural rights" is implied in works of antiquity, it is only in the Middle Ages that we begin to see an acknowledgment of rights as distinct from "the right."(12) For St. Thomas Aquinas, rights are a product of law.(13) What we call human rights is a product of a law immanent in nature ­ specifically, in the end or telos of the being concerned ­ which derives its force from its relation to a transcendent order, divine reason, or the eternal law. Rights are, then, subordinate to "law," and are ascribed so far as they are conducive to a being's end or telos.

It is not, however, until the seventeenth century (with Hugo Grotius [1583­1645] in De Jure Belli Ac Pacis [The Rights of War and Peace, 1625]) that the term "rights" is carefully unpacked. Grotius and others recognized that rights cannot be separated from the concrete, even if they are abstract and general. And it quickly became clear that a discourse of rights must take account of both the social environment and the characteristics of human beings. As the understanding of "nature" and "human nature" developed, so did the notion of "right."

"Nature" can be understood in different ways, and so "rights" came to be approached in correspondingly different ways as well. For many seventeenth- and eighteenth-century authors, "nature" was an order that was self-subsistent; its laws were necessary and had force intrinsically. Philosophers no longer had to refer to an underlying divine reason or eternal law. The natural law was "written in our hearts," and natural rights in their entirety were logically derived from it.

A second view ­ one that has had a strong influence in political thought in the Anglo-American world ­ is found in Hobbes and Locke and their successors. While there is a natural moral law, its status is unclear; the notions of a human telos and a common good recede from view. The fundamental natural law of self-preservation is soon understood as equivalent to an individual's right to life. "Natural rights," then, take on a role of their own. With the focus on individual rights, social life is no longer seen as fundamental, but as conventional ­ a means to the preservation of the lives of individuals. Political and legal authority is regarded as a product of contractual arrangements that people voluntarily engage in. Thus, natural rights are prior to the state and serve as limitations on the state.

On both of the above "modern" views, however, rights are "natural" to human beings and, thus, are absolute and inalienable. And once it was recognized that individuals may determine their own good for themselves, the purpose of rights was no longer just to enable them to pursue the good, but to prevent undue interference from others. Rights were "negative."

Through the late eighteenth and nineteenth centuries, rights play an increasingly important role in political, social, and philosophical thought. We see movements demanding freedom of conscience, religious toleration, the rights of women and of those without property, the elimination of slavery, and the extension of the franchise. At each step, the recognition of "new" rights was concomitant with changes in the understanding of nature and of the human person. The discourse of rights reflected our view of nature ­ of the world ­ as a whole.

The "new" discourse of rights did not go unopposed. As human beings came to be understood more and more in purely naturalistic terms, and as nature came to be seen as malleable or as something that has changed and continues to change, we encounter more and more challenges to rights. While acknowledging that natural rights were "sacred,"(14) Edmund Burke considered rights to be a "Metaphysical abstraction,"(15) and "rights talk" to be inflammatory rhetoric ­ one of the "pretexts" of the "troublous storms that toss / The private state, and render life unsweet."(16) Burke held that "pride, ambition, avarice, revenge, lust, sedition, hypocrisy, ungoverned zeal, and all the train of disorderly appetites" hid behind talk of rights,(17) and that this discourse was responsible for the "havoc" of the French Revolution.(18) Jeremy Bentham also considered "universal human rights" to be unnecessary, vague, anarchical, and dangerous.(19) Karl Marx had a more benign, but still critical, view. In his Critique of the Gotha Program (1875), he argued that human or "equal rights" were "ideas which in a certain period had some meaning but have now become obsolete verbal rubbish,"(20) and that the discourse of human rights simply served class interests. For all these reasons, and more, some critics wished to consign the language of "human rights" to the "museum of antiquities." And these objections have been extended in our own days in different ways by Margaret MacDonald, Raymond Aron, Richard Rorty, and Alasdair MacIntyre.(21)

Does this mean that the circumstances and grounds that led to the formulation of theories of rights ­ and rights themselves ­ are no longer relevant? Despite these challenges, the discourse of rights has not lost its power, and several philosophers have attempted to address the criticisms raised above.

Defences of natural human rights are found in authors as diverse as Mary Wollstonecraft, Immanuel Kant, Herbert Spencer, many of the leading figures of nineteenth- and twentieth-century American jurisprudence, H.L.A. Hart and, today, Alan Gewirth, John Finnis, Tibor Machan, Ronald Dworkin, and Robert Nozick. In general, their argument is that for personhood to be possible ­ or for "person" to be a moral term ­ rights are logically required.

Others responded to the late-eighteenth- and nineteenth-century challenges to rights by attempting to reformulate rights. Inspired by Rousseau and Hegel, and aspiring to unite rationalist and empiricist traditions, the idealist T.H. Green (1836 ­82) and his student Bernard Bosanquet (1848­1923)(22) argued for a "thick" notion of human nature and for the inseparability of individuals from their social context. Rights, then, are properties of individuals which reflect the functions or positions they have in communities. Rights are natural, but not inalienable or absolute.

More recently, we have "pragmatic" defences of the existence of universal human rights. Jack Donnelly, for example, points to the fact that human rights have "become a ... well established part of international relations."(23) He notes that the "ideal of equal and autonomous individuals pursuing ... their own conceptions of the good life, [has become] deeply embedded as a regulative political ideal in contemporary international society." Thus, almost everywhere we look we find "a basic moral commitment to the idea that all human beings, simply because they are human, have the equal and inalienable individual rights recognized in The Universal Declaration and Covenants."(24)

In these defences, rights are both values and indicators of value ­ they not only reflect moral principles, but constitute socially recognized, quasi-legal claims. And so, despite the changes in meaning and the present ambiguities in the term, the discourse of rights and theorizing about rights remain important. Demands for justice and equality continue to be made in terms of rights. This discourse has also come to have a place in many non-Western countries, and has shaped the ways in which these cultures understand themselves.

Human rights, then, exist as a practice at both the national and international levels. But for such a practice to continue and thrive requires, on the one hand, recognition and the possibility of enforcement and, on the other, as clear as possible an account of what rights are, what their moral weight is in relation to other values, and how they might be explained and defended. The task of philosophical theory is still far from complete.

3. Political and Legal Instruments

Having rights is of little consequence unless they are recognized as rights and unless some sanctions are in place. A discussion of rights is not complete, then, without some comments on the place of political and legal instruments related to human rights. But we have other reasons for looking at these political and legal instruments. Recognition in national and international law of human rights and of the "practice" of rights has obviously influenced people to use the discourse of rights. And some scholars would add that changes in circumstances and in how we speak about rights, particularly since 1948, have affected our theories of rights. Does seeing rights as a "practice" in national and international law affect how we think about and attempt to explain or justify them?

The concept of rights has long been recognized in law and constitutions. The American Declaration of Independence (1776) and its Bill of Rights (1791), the Polish Bill on Government (1791), and the French Declaration of the Rights of Man and the Citizen (1789) are early examples. The American and French documents in particular affirm both that the well-being of the people is a good and that the authority of the state is based on the will of the people. These explicit recognitions in law of a set of basic human rights and liberties, together with the recognition of the universal applicability of law, gave momentum to extending rights to all human beings.

The history of Britain and its dominions, France, and the United States, in the nineteenth century reveals a gradual extension of a core set of rights. Yet only with the twentieth century did rights become generally understood to extend internationally. After the horrors of the First World War and subsequent political realignments, attempts were made to formulate declarations of international law and human rights, such as the Declaration of the International Rights of Man of 12 October 1929.(25) But not until the Second World War and the recognition of what had been perpetrated during that war, did the call go forth for the "recognition of the inherent dignity ... of all members of the human family" and for a declaration of human rights.

The key moment in the international political and legal recognition of human rights is the Universal Declaration of 1948. The rights it enumerates have been appealed to by almost every democratic movement since. These rights have been elaborated and developed in a number of covenants and protocols, such as the International Covenants on Economic, Social and Cultural Rights (1966) and on Civil and Political Rights (1966), and the Optional Protocol to the International Covenant on Civil and Political Rights (1966). As noted earlier, these rights include not only fundamental rights to life, liberty, and security of the person; to freedom of conscience; and to freedom of association. There were also cultural and economic rights, deemed necessary for the dignity and free development of one's personality.

The rights of the Universal Declaration and of its Covenants and Protocols are not just rights of the United Nations. They are (and have been) a model for a number of other international charters, such as the American Declaration of the Rights and Duties of Man (1948), the European Convention on Human Rights (1950), the European Social Charter (revised 1996), and the African Charter on Human and Peoples' Rights (1981). Through the latter half of the twentieth century, individual countries (such as Canada) followed suit and adopted charters or bills of rights, or gave explicit constitutional guarantees of certain basic rights. And in turn agencies and national and international judicial bodies have come to be involved in the implementation and enforcement of human rights. Human rights issues are sometimes treated by the International Court of Justice, the principal judicial organ of the United Nations (although the Court deals only with cases among states, and not between a state and individuals). Where we have regional charters or declarations of rights, legal institutions such as the Inter-American Court of Human Rights and the European Court of Human Rights have been established. It is fair to say that while there continue to be efforts at providing philosophical or theoretical justifications for human rights since the time of the UDHR, the defense of human rights has been made primarily by appeal to political and legal instruments, such as charters, constitutions, and international conventions and agreements, and, where possible, to those bodies concerned with the implementation of rights.

The concept of rights that appears in political and legal instruments has been influenced by earlier philosophical discussion of rights which has, in turn, been a product of how we understand nature and especially human nature. Have these political and legal instruments affected our understanding of rights or how we theorize rights?

In the first place, in the formulation of these charters and declarations, we note the increasing presence of "positive rights" and collective or "group" rights, so that "human rights" include language rights and the rights of minorities to act on principles inherent in, or designed to protect, their cultures. We see this also leading to the perception that people have a right to basic goods, and not just freedom from restriction in competing for them. We find a "thicker" notion of rights ­ as encompassing both what have traditionally been called negative, as well as positive, rights. These instruments have likely affected how people understand what their rights are.

Second, at the root of these instruments is an explicit recognition or statement of human dignity, as well as our social responsibilities and duties. As the Universal Declaration reminds us, "Everyone has duties to the community in which alone the free and full development of his personality is possible" (Article 29). Human beings are more than rational and self-interested maximizers of pleasure, but as fundamentally social beings capable of, and seeking, moral, intellectual, physical, and spiritual growth. If we look at how many people theorize rights, we find a "thicker" theory of human nature at work. The various political and legal instruments likely serve as reminders that rights must take account of the human person as a whole, and not just in his or her dimension of being a rational agent.

Third, we see not only that many national constitutions include an explicit acknowledgment of human rights, but that the introduction of notions of "rights" and "liberty," even in places where they are not native, has been successful. The Japanese constitution (3 November 1946), drafted in only five days by a "constitutional assembly" of 24 Westerners appointed by General Douglas MacArthur and headed by an American lawyer, Lt. Col. Charles Louis Kades, included a wide range of Western-style rights and liberties (see articles 11­39). This document was initially regarded as outrageous by then-Prime Minister Shigeru Yoshida.(26) Yet the concepts of liberty [ji-yu = to depend on oneself] and rights referred to in the document have since become an accepted part of Japanese self-understanding.

Yet critics in both the developed and the developing world take these instruments to be hopelessly naive or to have a hidden agenda. Some critics maintain that the economic and social rights of the UDHR and subsequent documents have led to an inflation of rights ­ there are alleged rights against not only racism and sexism but "lookism" and "classism"; there are appeals to "rights" not only to basic education, but to specialized training. The responsibilities of the recipients are rarely, if ever, referred to. Such an approach, critics continue, confuses basic human rights with human goods ­ that rights such as life, liberty, and association are on quite a different level than goods like "rights" to leisure, and that attempts to secure the latter are not only unrealistic (given the material resources available), but can only interfere with the former. Thus, the list of rights provided in the UDHR, and the apparent shift to an emphasis on economic and social rights, has not contributed to a better understanding of human rights or to promoting and protecting these rights.

Other critics argue that human rights instruments are ineffective and have failed to make any substantial contribution to the welfare or dignity of human beings. Human rights are only intermittently and arbitrarily enforced, and to depend on appeals to such rights for justice is at best naive. Thus, even though international bodies recognize rights, they are often unwilling or unable to enforce them. Nations such as the former Soviet Union, China, and North Korea were signatories to the UDHR and yet consistently ignored these rights ­ and there were little or no sanctions that any international body employed to try to change this. Moreover, the invasions of Tibet, Hungary, and Czechoslovakia, and the civil wars in Rwanda, Yugoslavia, and East Timor, are all examples which show human rights are either ineffective or non existent. Finally, different nations interpret freedom of speech in different ways. In some, it is virtually absolute, in others it is subject to "democratic limits," and in yet others it is entirely subject to the whim of the state. Many have come to be disillusioned with the whole discourse of human rights.

Some non-Western countries are particularly critical of the legal instruments of human rights, which they see as revealing human rights for what they "really are" ­ tools of foreign ideology and political and economic domination. In the Bangkok Declaration (March­April 1993) of ministers and representatives of Asian states preparing for the 1993 United Nations World Conference on Human Rights in Vienna, and in the series of white papers on human rights published by the Chinese State Council (in 1991 and 1995), Asian and developing nations argued that the discourse of human rights was often used as a tool of foreign policy and oppression by larger powers; that these rights cannot be applied without taking into account the distinctiveness of the cultures in which they are to play a role; that many of these abstract rights impede more fundamental concerns (for example, providing a minimum standard of health care, housing, and food, providing a basis for development, and so on); that the responsibilities of the recipients are rarely, if ever, referred to; and that many of these rights are, at the present time, luxuries rather than essential to social progress and well-being.

It is in such a charged political and legal environment that the contemporary discussion of human rights takes place. What does this experience tell us about the importance of human rights? Have political and legal instruments, like the UDHR, helped us to understand what is at stake and what might be gained in employing a discourse of rights? Are there universal human rights, and is there a place for political and legal instruments, like those of the Universal Declaration? What does the history of the past fifty years show us? And what role does philosophical theory have in the discussion of these rights?

4. Perspectives on Rights

The essays in this volume aim at addressing the preceding questions ­ outlining different ways of approaching what is involved in a discourse of natural or universal human rights, the advantages and disadvantages of such a discourse (in light of both world events and challenges to rights theories), the relation of this discourse to the legal and political documents that have been formulated to protect human rights and ensure a respect for persons, and the effects of this discourse and these documents in the contemporary world.

In the first five essays, the authors deal with how we have been led to our contemporary conceptions of rights. They review some of the theories and historical contexts on which the understanding of rights as "human rights" is founded, reexamine classical arguments concerning rights, and explore some of the ways in which we might make sense of the concept of human rights. In the second part, papers focus on the central and seminal place of the UDHR in the history of human rights, on the rights articulated in the UDHR, and on ways in which the UDHR has been applied in both national law and international affairs. In the final five papers, the authors discuss several challenges in applying and theorizing human rights in the years since the UDHR. Some bring classical arguments to bear on the contemporary context, some review the adequacy of current analyses of rights, and some discuss limits on the appeal to both the practice and theories of rights.

In Part 1, "Theories of Rights," the central question is whether we can give an argument for human rights or, at least, for those most basic human rights that we call "natural rights." Certainly many arguments have been advanced. Some have been rooted in "the natural law," some in "reason," some in nature as such, some in a social contact, and some in "human nature." The character of these arguments has often been strongly foundationalist ­ that is, rights are in some way directly deduced from natural law, or nature, or reason. But whether there can be so strong a foundation has been a matter of much debate.

To explain how we have been (he thinks, rightly) led to a discourse of human rights, Howard Kainz ("Natural Law and Natural Rights") begins with several terminological clarifications ­ distinguishing natural law, natural rights, and "human rights," as well as arguing that we should be able to give a foundation for believing that natural rights exist. For such a foundation, Kainz turns to one of the earliest arguments we have for natural rights ­ taken from the thirteenth-century texts of St. Thomas Aquinas. Kainz argues, however, against recent (non-Thomistic) natural rights theorists such as John Finnis, who attempt to replace natural law with a theory of "basic goods."

Another argument for natural rights based on natural law is found in the work of philosophers of the seventeenth and eighteenth centuries ­ for example, John Locke. For Locke, natural law entailed natural rights to life, liberty, and the pursuit of property. Locke's understanding of natural law, however, is quite different from that current in the thirteenth century. Not only was natural law understood simply as "the law of reason," but what people believed about human nature had also changed. Some hold that Locke's approach to natural law is the source of later arguments extending "natural rights" to women. Sarah Hutton disputes this. Hutton (in "The Ethical Background of the Rights of Women") agrees that we see in late-seventeenth- and eighteenth-century authors, such as Damaris Cudworth (Lady Masham), Catherine Macaulay, and (most famously) Mary Wollstonecraft, a gradual shift towards using the language of rights. Masham and others argue that women should have greater opportunities because they, like men, are moral and rational beings and require the means to develop this character. But Hutton argues that Masham, Macaulay, and Wollstonecraft, unlike Locke and Hume, are moral realists (believing in an eternal and immutable moral law, founded in the goodness of God) and anti-voluntarists (where what is good is defined by what is rational). The basis for their arguments for the rights of women is found in the Platonist tradition of Ralph Cudworth (Masham's father), Richard Price, and Samuel Clarke, rather than in Locke. Rights are not facts or precepts, as in Locke, but desiderata.

Understanding human nature ­ or, at least, what it is to be human ­ is commonly at the root of claims to rights, and of accounts of what rights are fundamental. But in the seventeenth century, we find several distinctive views of human beings, and corresponding views of rights. As Leslie Armour ("Economic Rights and Philosophical Anthropology") points out, we have a dualist view, commonly associated with Descartes, where minds are radically distinct from bodies, and where freedom of conscience and of thought could exist without any corresponding liberty of the body to act. We also have a Hobbesian mechanistic view of human beings as "meat in motion" ­ though here, the moral character of liberty disappears. Armour identifies a third view, found in philosophers associated with the French Protestant community of Saumur. The Saumur philosophers recognized the importance of religious tolerance and, given their views on salvation, were obliged to try to provide an appropriate corresponding account of the human person. They argued that human beings are creatures of infinite possibilities, but that ­ in a way reminiscent of Wollstonecraft ­ this potential cannot be expressed unless people have positive control over their lives. People must share responsibilities and resources, but they also have basic rights. We can construct an argument for human rights here, although it is not clear that these rights are "natural," or that the argument is a foundationalist one.

Eighteenth-century authors, such as T.H. Green, also held that natural rights in the Lockean sense cannot serve as the basis for civil rights. If the rights possessed by individuals are truly natural, they cannot be subject to restriction. Nevertheless, Green argued that we can still defend human (or, what he called "universal" or "general") rights. In "T.H. Green on Rights and the Common Good," Rex Martin argues that Green provides an argument for rights ­ one that is, moreover, suited to contemporary democratic society. For Green, there are basic rights, but they are subject to social recognition and based on a common good. Individual rights exist, but they also depend on the community or what Green calls "the state." Since there is no undue emphasis on rights, this account addresses contemporary communitarian concerns about an implicit atomic individualism of rights.

In "A Postsecular Exchange: Jacques Maritain, John Dewey, and Karl Marx," Thomas Jeannot suggests the recognition of the person as a social being, of how individual human identity is built on life in community, and of the priority of the common good in social life, is necessary to construct an adequate account of rights. Though their views are distinct in many ways, Maritain, Dewey, and Marx share a basic humanism and agree that we must go beyond classical secular liberalism (and its correlative model of negative rights). By starting with a personalism and a doctrine of the common good, we have a ground for genuinely human rights.

In Part 2, on the Universal Declaration and its place in the practice of human rights, Mostafa Faghfoury ("Human Rights: Fifty Years Later") begins with a broad picture of the circumstances that gave rise to the UDHR in 1948. Faghfoury says we generally find in thinkers one of two ways of viewing humanity ­ inclusively, where all of humanity is one, and exclusively, where people distinguish between "themselves" and "others" ­ with "themselves" usually understood as somehow superior. Both approaches have had their articulate defenders. But the latter approach, Faghfoury notes, has consistently led to war. The UDHR attempts to promote the former model and, despite the resistance to it in the decades since the Declaration, Faghfoury believes that the moral appeal of the UDHR has the best prospect of succeeding.

How, concretely, has the UDHR been helpful? In "The Universal Declaration of Human Rights, Maritain, and the Universality of Human Rights," Bradley Munro examines the views of one of the principal architects of the UDHR, Jacques Maritain, and argues that Maritain's theoretical justification for human rights is of little help in determining what people and countries should do to defend and protect human rights. Nevertheless, Munro allows that Maritain's arguments ­ and more broadly, the UN ­ succeed at a practical level. Maritain's recognition of the fundamental features of human life and his emphasis on dialogue as a means of achieving peaceful resolution of conflicts provide a practical foundation for, and enable appeals to be made to, the rights articulated in the UDHR and subsequent covenants and protocols. The UDHR has been of practical moral help.

How far has the UDHR made a practical contribution to the defence of human rights at the national and international levels? While the UDHR has contributed to education about human rights, disagreement exists whether it has had a concrete effect on the respect of rights. Jack Iwanicki ("The Universal Declaration of Human Rights in the Supreme Court of Canada") asks whether it has promoted the recognition and respect of human rights within national law. Certainly the UDHR has influenced the text of constitutions and bills of rights ­ Canada is a specific example of this. But after examining a number of cases argued before the Supreme Court of Canada, Iwanicki suggests that the Court often does not give much weight to international materials. He concludes that if the UDHR is to have an influence, it will have to be through legislators, not the courts.

In "Human Rights and the Survival Imperative: Rwanda's Troubled Legacy," Philip Lancaster argues that the UDHR has been of little or no help in settling the most egregious cases of violations of human rights, such as the genocidal massacre of Tutsis by Hutus in Rwanda, or in dealing with the fallout after the events. Lancaster claims that the UDHR fails to compel allegiance ­ that it lacks the compulsion of law, is based on a poorly formed (what he calls "Kantian") normative foundation, and does not take sufficient account of differences in power and the existence of radical evil. Lancaster doubts that the notion of universal human rights can have any concrete effect, given what we know of human persons.

In Part 3, the authors raise the question of how philosophers have theorized and applied rights in the years since the UDHR. One of the criticisms raised against the existence of social, economic, and "collective" rights ­ particularly those found the UDHR ­ is that this has led to an inflation in rights. This has been a key issue in the contemporary exchange between liberals and communitarians. Liberals allegedly not only defend an account of individual rights but, its critics claim, elevate the interests of the atomic individual over the collective good. Communitarians not only emphasize community and the common good over individual rights, but its critics charge, leave insufficient room for individual autonomy and the pursuit of happiness. Is there a way of resolving the tension between "individual" rights and collective goods?

One response to this is discussed by Paul Groarke and Jason West ("Reconciling Individual Rights and the Common Good: Aquinas and Contemporary Canadian Law"). Given the classical principle lex iniusta non est lex ­ that an unjust law is not a law ­ Groarke and West follow Aquinas's natural law theory in arguing that authorities can place burdens on individuals only to the extent that they are proportionate to the good to be achieved through them. Individual rights exist because they reflect natural features of the human person, but they are dependent on the social context in which they are held. This Thomistic view, they claim, avoids the Scylla and Charbides of liberalism and communitarianism. Groarke and West also argue that Thomism can provide a constitutional theory to guide interpretation of political and legal instruments, such as the Canadian Charter of Rights and Freedoms.

In "Moderating the Philosophy of Rights," Ralph Nelson agrees that respect for persons requires a discourse of human rights, but it should be "moderated" in a way consistent with a common good. One solution, proposed by Jacques Maritain, is to "graft" natural rights onto a more fundamental natural law. Thus, we need accounts both of the common good (which grounds rights in duties) and of the process of how to ascribe rights to individuals. Understanding the common good "distributively" and "instrumentally" (as in most liberal thinkers), rather than collectively (as in St. Thomas), leads to an inflation of rights. Nelson argues specifically that the attempts of John Finnis and Alan Gewirth fail in finding a place for both the collective and distributive senses of the common good. For a more complete account of the common good that avoids an inflation of rights, Nelson recommends the writings of Maritain's student and friend, Yves Simon.

Another response to the tension between individual rights and collective goods is offered by Alan Gewirth, who holds that he can provide a deductive argument for individual and collective rights ­ and use these rights as a basis for a moral theory. Gewirth's defence has been challenged by "communitarians," such as Alasdair MacIntyre, for being just another example of an antiquated foundationalist approach that is unproved and unprovable. But in "MacIntyre or Gewirth? Virtue, Rights, and the Problem of Moral Indeterminacy," Gregory Walters maintains that MacIntyre's arguments fail, and that Gewirth's arguments can avoid the communitarian critique. Walters adds that MacIntyre's own virtue ethics does not provide a determinate concept of what goods people ought to pursue. Theoretical foundations for human rights ­ and for liberalism in a broad sense ­ are possible after all.

Are collective rights natural rights? How far do collective rights ­ specifically, the rights of communities, such as linguistic, cultural, and aboriginal rights ­ extend? David Lea ("Universal Human Rights, Concepts of Ownership, and Aboriginal Land Claims") considers what is involved in talking about natural rights, and whether we can extend the notion of "natural rights" to apply to aboriginal rights to land. Lea reminds us of the origins of the concept of property, arguing that in early Christian thought and also in Locke, property rights are not "full blown" but usufructuary. The former justifies "control ownership," the latter simply rights to the benefits of property ­ that is, "income ownership." Thus, while aboriginal property rights may be natural, it is still an open question what specific entitlements follow from them.

In light of the different approaches to human rights since the UDHR, some have challenged whether "rights talk" is necessary or useful. Richard Rorty, for example, has argued that there is no need for an appeal to rights or human nature to justify a call to be in solidarity with others, and that theories of human rights are unnecessary. But William Sweet replies, in "Solidarity and Human Rights," that a discourse of human rights is not only defensible, but provides a useful means of justifying and promoting the moral call to solidarity. Rights talk and rights theories remain valuable.

The papers in this volume, then, focus on our understanding of human rights and particularly with the contribution of the UDHR and its successor political and legal documents. What drives many of the authors is the question whether the concept and the discourse of human rights have been successful, or whether they are outdated. The papers are largely optimistic. Most, if not all, hold out hope for a discourse of rights, although they recognize several important questions raised by those who challenge it. This is as it should be. If a discourse of human rights is to be viable, it must respond to those who claim that not only the theories but the political and legal instruments of human rights have failed.

5. Assessment

Over fifty years after the UDHR, the discourse of human rights still has moral force; it continues to play an important role in declaring the "inherent dignity ... of all members of the human family" and in showing humanity's recognition of this value. So while rights talk, declarations, and legal and political instruments have been criticized, we should first determine what is meant or presupposed by these criticisms. We should ask: "What is the function of a discourse ­ and of declarations ­ of human rights?," "What should we reasonably expect of such a discourse and such instruments?," and "What would suffice to show that this discourse or these instruments have been successful?" But this is only a first step. In the past fifty years, what we have learned (or, better, what we have been reminded of) is that we must be attentive to the nature of the human person ­ both to its dignity and to its social responsibilities and duties. A discourse of rights is a useful way of recognizing certain values, such as the dignity and duties of individuals. Thus, the papers that follow are also called on to discuss what is necessary for rights and defences of them to be coherent and effective.

For a discourse of rights to be and remain viable, it has to have a clear conception of the human person ­ of its nature, of its dignity and autonomy, and of its moral and social responsibilities. This could be a "foundation" for human rights and for the project that underlies the various legal and political instruments. We may not need to employ a classical foundationalist approach, where rights are derived from an axiom or a set of axioms (such as a human telos), even though such an approach may be more successful than has sometimes been suggested.

More importantly, for such a discourse to be and remain viable, we must have a "thick" theory of human rights. A "thick" theory can provide a middle road between libertarianism and statism. Against statism, it recognizes individual dignity, autonomy, and the value of self-realization, without making individual wishes and wants absolute. Against libertarianism it recognizes the importance of our relations to others as part of our individuality and, therefore, the necessity of social responsibilities and duties. If individual human beings have basic rights, they also have basic duties, and these rights cannot be separated from a good that is common to all humanity. These features were recognized from the very beginning, when rights were tied to natural or divine law. The recognition of the importance of duties and of a common good make the corresponding human rights no less rights and no less individual. And this may remind us that a recognition that human rights are not the "property" of just one liberal tradition.

Finally, if political and legal instruments like the UDHR are to be viable, we have to be clear on what its function is, and on what we can reasonably expect it to achieve. Its importance need not be that it is administratively effective; the United Nations does not have ­ and never had ­ the power to guarantee its respect. Still, the UDHR can be important pedagogically, practically, and politically. It can be important pedagogically, so far as it serves as a moral indication of what we have learned about humanity ­ of the recognized value of human dignity ­ and also as an indication of where those nations who are signatories to it profess to stand. It can be important practically, because these rights provide an indication of how, concretely, individuals can be just, moral, and show solidarity, but also how, concretely, these nations are called to be just in their dealings both with their own citizens and with the citizens of other countries. Finally, the UDHR can be important politically, because it provides an indication of the moral limits on what states and nations can do, without requiring that there be any prior theoretical agreement.

The essays in this volume attest that a discourse of rights and the corresponding legal and political instruments have a place in contemporary social and political philosophy. The UDHR and its protocols and conventions enumerate a lengthy list of rights and values that many take to be central to ensuring human dignity. Philosophical theory may help to provide a basic or a conceptual framework for these rights. It may also serve by raising the question whether, for a notion of human rights to be effective, we must distinguish the notion of human rights from some dominant traditions of liberalism. And it may remind us of certain "metaphysical facts" ­ for example, that human beings are social beings ­ or suggest different ways we can argue for human rights, such as appeals to history, to consensus, or even to natural law or characteristics of the individual person as a being with a telos.

The history of the more than fifty years since the UDHR has not been pretty, but we may still be in the process of determining how we can live up to the ideals on which theories, declarations, and charters of rights are founded.





4. Ibid., p. 77.

5. Ibid., p. 84.

6. Ibid., p. 79.

7. See Natural Law: Reflections on Theory and Practice by Jacques Maritain, ed. William Sweet (South Bend, IN: St. Augustine's Press, 2001), p. 34.

8. Man and the State, p. 76.

9. Ibid., p. 104.


11. Report of the Panel to Review the Canadian Human Rights Act, June 2000; reported in The National Post (22 June 2000).

12. See Arthur P. Monahan, From Personal Duties Towards Personal Rights: Late Medieval and Early Modern Political Thought (Montreal: McGill-Queen's University Press, 1994).

13. ­

14. " ' "

15. Reflections on the Revolution in France, in The Writings and Speeches of Edmund Burke, 12 vols. (Boston: Little Brown and Co., 1901), Vol. III, pp. 240­1.


17. Ibid.

18. Burke, "An Appeal from the New to the Old Whigs," Writings and Speeches of Edmund Burke, Vol. IV, pp. 151­185; p. 188.

19. Jeremy Bentham, Anarchical Fallacies, in his Works, ed. J. Bowring, (London, 1838­43), Vol. II, pp. 489­534.

20. Karl Marx, "Critique of the Gotha Program (1875)," in Selected Writings, ed. David McLellan (Oxford: Oxford University Press, 1977), pp. 564­570; see Karl Marx and Friedrich Engels, Marx/Engels Selected Works in One Volume (London: Lawrence and Wishart, 1973), pp. 320­321.

21. See Margaret MacDonald, "Natural Rights," Proceedings of the Aristotelian Society, XLVII (1946­47), pp. 225­250; Richard Rorty, "Human Rights, Rationality, and Sentimentality," in On Human Rights, The Oxford Amnesty Lectures, eds. Stephen Shute and Susan Hurley (New York: Basic Books, 1993), pp.111­134; Alasdair MacIntyre, After Virtue (Notre Dame, IN: University of Notre Dame Press, 1981), pp. 66­71; Raymond Aron, Essai sur les libertés (Paris: Calmann-Levy, 1965) and "Is Multinational Citizenship Possible?," Social Research, XLI (1974), pp. 638­656.

22. '

23. See Donnelly, "The Social Construction of International Human Rights," in Human Rights in Global Politics, ed. Tim Dunne and Nicholas J. Wheeler (Cambridge: Cambridge University Press, 1999), pp. 71­102, pp. 77­78.

24. Ibid., pp. 99­100.

25. Published by the International Law Institute in its plenary session in New York in 1929. See A.N. Mandelstam, "'La déclaration des droits internationaux de l'homme adoptée par l'Institut de Droit international," Revue de Droit International, No. 1 (1930); Les droits internationaux de l'homme, ed. Paul Gramain (Paris: Editions internationales, 1933).

26. Tadashi Aruga, "The Declaration of Independence in Japan: Translation and Transplantation, 1854­1997," Journal of American History, 85 (1999), pp. 1413­14.