Human Rights and Human Diversity: An Essay in the Philosophy of Human Rights PDF
Preview Human Rights and Human Diversity: An Essay in the Philosophy of Human Rights
HUMAN RIGHTS AND HUMAN DIVERSITY By the same author THE SOCIAL PHILOSOPHY OF ENGLISH IDEALISM FREEDOM AND RIGHTS THE RIGHT TO DISSENT: Issues in Political Philosophy HUMAN RIGHTS AND HUMAN DIVERSITY An Essay in the Philosophy of Human Rights A. J, M. Milne, Ph.D., B.Sc. (Econ.) Professor of Political Theory and Institutions University of Durham M MACMILLAN © A.J. M. Milne 1986 Softcover reprint of the hardcover 1st edition 1986 978-0-333-40618-2 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London WtP 9HE. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. First published 1986 by THE MACMILLAN PRESS LTD Houndmills, Basingstoke, Hampshire RG21 2XS and London Companies and representatives throughout the world ISBN 978-1-349-08430-2 ISBN 978-1-349-08428-9 (e Book) DOl 10.1007/978-1-349-08428-9 A catalogue record for this book is available from the British Library. Reprinted 1993 To my Anita in loving memory Contents Preface ix Introduction I O.I Objections to the idea of human rights I 0.2 Human rights as a minimum standard 5 PART I MORALITY I Rules, Principles and Conduct 13 1.1 Rules 13 1.2 Principles I8 1.3 Law and morality 25 2 Morality and Society 31 2.I What morality is 3I 2.2 The social basis of morality 34 2.3 On a community's interest and its moral implications 37 3 Moral Universality and Moral Diversity (i) 45 3.I Why moral diversity cannot be total 45 3.2 Analysis of 'justice' as 'fair treatment' 47 3.3 Exposition of the moral principles of community 53 3.4 Common morality and particular morality 57 4 Moral Diversity (ii}: Religion and Ideology 62 4.1 Religion 62 4.2 Ideology 70 5 Morality and the 'Categorical Imperative' 79 5.1 Exposition and criticism of the 'Categorical Imperative' 79 5.2 Kant's humanity principle as the basis for a universal minimum moral standard 82 viii Contents PART II RIGHTS 6 The Idea of Rights (i) 89 6.1 Analysis and exposition of the concept of a right 89 6.2 Hohfeld on the concept of a right 94 7 The Idea of Rights (ii): On the Sources and Significance of Social Rights 102 7.1 Positive law and morality as sources of rights 102 7.2 Custom as a source of rights 108 7.3 On the significance and limitations of rights 115 8 The Idea of Rights (iii): Human Rights 124 8.1 Exposition of human rights as universal minimum moral rights: first stage 124 8.2 Exposition of human rights as universal minimum moral rights: second stage 131 8.3 Implications and amplifications: first stage 139 8.4 Implications and amplifications: second stage 146 9 Human Rights and Politics 154 9.1 On the nature and significance of government 154 9.2 Political rights and human rights 158 9.3 Domestic politics and human rights 164 9.4 International relations and human rights 168 Notes 174 Index 180 Preface I first conceived the idea of this book in the autumn of 1978. I had been invited by Professor Frank Dowrick of the Law Department in the University of Durham to give a public lecture on the idea of 'human rights'. This was part of the series of lectures and seminars held in the university to commemorate the 30th anniversary of the United Nations Declaration of Human Rights. Although I had previously written about both rights in general, and human rights in particular, while working on my lecture I became dissatisfied with my earlier work. I should like to thank Professor Dowrick and all who contributed to the lectures and seminars, for the stimulus which they have given me. Over the next seven years I had the opportunity on a number of occasions to try out the arguments and ideas in this book in the form of seminar and conference papers and lectures. I should like in particular to acknowledge my intellectual debts to the following: the members of the Politics Department in the University of York, Professor David Evans and members of the Philosophy Department in the Queen's University, Belfast, Dr Moorhead Wright of the Department of International Politics, University College of Wales, Aberyst wyth, together with the members of the conference at Gregynog, Wales, in July 1984 which he organised, and Professor Neil MacCormick, together with the members of his Jurisprudence Conference at the University of Edinburgh. To all of these I owe much in the way of critical comment and suggestion. I should also like to thank my colleagues in the Politics Department here at Durham and also in the Philosophy Department, for comments and criticisms on some of the arguments in this book which I have presented to them. I am glad to have the opportunity to express my thanks for the practical help I have received in preparing the typescript for publication. I am especially indebted to Dr Wolfgang von Leyden, Mr Neville Rigby, Mr Kimmett Edgar and Mrs Susan Elkan for assisting me in preparing the final draft. I am greatly indebted to Mrs Hilda Winn, Mrs Dorothy Anson and Mrs Jean Richardson for producing the final typescript on the departmental word-processor - it was, in fact, the first book to be done on our new machine. I am especially grateful to Dr R. W. Dyson for correcting the proofs. Finally, I should like to mention my late wife, in whose memory this book is dedicated. She did not live to see its completion but I would like to record here my profound gratitude for her support, loyalty and help not only in writing this book but in all my work over the past 3 7 years. University of Durham A.J.M.M. Introduction 0.1 OBJECTIONS TO THE IDEA OF HUMAN RIGHTS 0.1.1 The idea of human rights is one of the most prominent in Western political rhetoric today. A regime which protects human rights is good. One which violates them, or, worse still, does not acknowledge them at all, is bad. There is a basis for the rhetoric. Talk of human rights can today be supported by such documents as the United Nations Universal Declaration of Human Rights of 1948 together with later covenants which supplement it, and by the European Convention on Human Rights of 1953. Earlier it was often supported by eighteenth-century documents, notably the Virginia Declaration of Rights of 1776, and the French Declaration of the Rights of Man, 1790. All these documents make use of the idea of human rights, but in none of them is it analysed and critically examined. This is not surprising, since their aims were practical and political, not academic and philosophical. Their authors assumed that the idea was straightforward. The problem was to give effect to it. But this assumption was mistaken. There are objections to the idea of human rights which I shall briefly indicate. They are not, however, insuperable. In this book I shall argue that there is a rationally defensible idea of human rights. It is at once less shaightforward and more modest than anything in the documents but not on that account without significance. Just what its significance is, however, is something else which I shall consider in this book, which is an essay in the philosophy of human rights. It is concerned with the answers to two related questions: 'What can be meant by human rights?' and 'How should we think of them?' 0.1.2 If the adjective 'human' is taken seriously, the idea of human rights must be the idea that there are certain rights which, whether or not they are recognised, belong to all human beings at all times and in all places. These are the rights which they have solely in virtue of being human, irrespective of nationality, religion, sex, social status, occupation, wealth, property, or any other differentiating ethnic, cultural or social characteristic. Article 2 of the UN Declaration appears to support this suggestion: Everyone is entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind such as race, colour, sex, I
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