Response to The Notion of “Rights”: Origins and Relations to Duties

Group 8: AT, AW, Yongho Kim
Response to The Notion of “Rights”: Origins and Relations to Duties. Monday, September 22nd.

Chapter 5 provides a close-up of the notion of rights and their historical evolution. The notion of rights emerged as a refining of the concept of ‘natural law’ coined in the 17th and 18th centuries by the Enlightment philosophers (Locke, Montesquieu, Voltaire and Rousseau). In an era of Revolution (England’s Revolution, French Revolution and the Independence of the US) and exaltation of humanity, the natural rights were seen in absolutist terms as ‘inalienable’ ‘unalterable and eternal’ as self-evident truths that required recognition. That view was strongly criticized in the 19th and early 20th centuries, when scholars viewed the natural rights as an “unreal and metaphysical phenomena.” (Steiner, 326) The idea of human rights fully emerged after the fall of Nazi Germany. Do we see a pattern in the historical evolution of the notion of rights? What would that pattern indicate for the future?

Three contemporary comments on the human rights follow this brief overview.

1. David Sidorsky emphasizes the two main functions of the human rights: universality (1) based solely (2) on the virtue of being human. He distinguishes that unlike the natural rights, human rights function more on an international arena and points toward six elements that mark the ideological continuum between natural rights and human rights. He makes the comment that exercising the human rights was by protecting the individual sphere from coercive actions rather than fostering the future means for protecting the individual sphere. Are HR more preventive in nature than natural rights?

2. Kamenka distinguishes the rights from different types of claims. He describes rights as claims that have achieved endorsement by “widespread sentiment or an international order’ (Steiner, 329) The key words in his argument are importance, urgency, universality, endorsement, conflict. The conflict seems to arise from the lack of authoritative voices, but rights are to transcend any authority. What is the supreme authority? Do we need one? Are we trying to create one?

3. Kennedy brings the Spotlight on the US. He describes the rights as universal and factoid ‘mediators’ (330) between value judgments and factual judgments. His piece puts the relationship between rules and rights into perspective. Chicken or egg? – Rights or rules? Can they coexist? Can they exist independently? Is the US a ‘rights country’? Do rights turn into rules when legally adopted? Should we tend towards an incorporation of the rights into the legislature? What about duties?

The next section analyzed the common charges towards human rights. The first charge addressed the rigidity of rights, their absolutist character. Many people think that the complex issues of our day should not be solved by the simple formulas inherent in many rights, but by what should be a longer and more detailed political discussion. The next charge concerned the indeterminacy of rights. Due to the vague nature of rights, they are often just the beginning of discussions and need to be specified in order to have any solid meaning. Rights are also criticized for being too individualistic and for dismissing important moral and social dimensions of many current issues. Because of the abstractness found in many rights, people think they have been used to protect prior practices from change, in a very anti-democratic manner. The last charge focused on the lack of responsibility individuals have when they depend too heavily on rights, which stops them from doing what is right and from doing things for themselves.

Stemming from the six different groups of charges against rights, two issues in particular emerged as especially interesting and controversial. All individuals have the ‘right to free speech,’ but what should be done when men and women use this right in controversial ways and create violent pornography, hate speech and advertisements for cigarettes (338)? Since everyone has the right to free speech are these kind of actions acceptable? Or because this right is so general and vaguely worded, can it even be applied to these cases until it is specified? Or should it not be specified?

The abstractness and open-endedness of many rights give them a wide range of meanings. Concepts about one’s rights begin to mean different things to different people and take on inconsistent meanings. For example, the right to privacy grants all individuals the right to be left undisturbed by the government with regards to certain personal issues. Many people consider then that women have the right to choice about abortion and reproduction issues. Since what you do during pregnancy is a personal affair between you and your doctor, not a political issue, should it not then be classified under your right to privacy? What do you think about what George Bush and many congress people are doing today in relation to the issue? Do you think the anti-choice legislation that is being passed is going against a woman’s right to privacy? The government approves stepping in and meddling with a woman’s private decision to choice, so why do they not step in more actively and intervene or punish individuals when a woman is being assaulted by domestic violence? Why should the government be able to intervene on certain issues and not others? And who decides which issues are the government’s business? Or because of the right to privacy, should they stay out of all personal matters completely?

Often the East and the West are stereotypically polarized in the argument that the former is intuitionistic and family-centered, while the latter is rational and law-centered. A reading of two “eastern” frameworks –Jewish and Gikuyu- and a comparison between the ICCPR and the African Charter, throws more details into the issue. Cover explains that the term “mitzvoth” or obligation, which dominates the Jewish legal language, is a main force that held the Jewish community through centuries of hardship (343). He goes on to argue that an ideology of rights, such as that represented by the US (and European) tradition, counters the state from accruing and abusing power, while an ideology of obligations or mitzvoth counters the external forces that endanger the unity of the Jewish community. Is Cover correct in his identifying the western rights discourse, or is he merely forcing an opposite to the Jewish system?

Another duty-centered society is the Kenyan Gikuyu society. Kenyatta describes the strong social ties binding individuals in many activities – a restriction touching on authoritarianism – and defends the tradition because it keeps social mechanisms critical for its survival. Not everybody likes a narrowly tied-down system, and dissenters find an alternative in the European individualism. Kenyans are said to cry out: “the white man had spoiled and disgraced our country”. Do you think this feeling belongs to an outdated generation who only looks to settle old traditions? How does this relate back to the CEDAW; for instance, if the circumcision of women in the muslim tradition (as practiced in Somalia) were a part of the Kenyan tradition, how would popular rhetoric justify such practice? Reading Kenyatta, it seems as though “western” values were diametric to those among the Gikuyu. But, is family really not a focal point in US societies? For instance, what is the Financial Aid Office implying when it states that family should be the main resource in affording college tuition? Why is Thanksgiving a national holiday? Where does a major portion of college social interaction occur, in institutionalized settings, such as “dorm lounge”, “interest club” or “Friday party”, or in isolated one-to-one encounters?

The African Charter on Human Rights and People’s Rights raises controversy. Freedom of association and immigration are granted with reservations when pertaining to national security (Art. 11 and 12); Art. 29 (2-5) specifies individual duties that remind of the National-Sozialistisch party when pertaining to “national solidarity” or “subversive or terrorist activities” (23.a,b). Liberation from direct colonial rule and postcolonial economic exploitation, “resorting to any means” is also emphasized. (20.2,3, 21.5). Finally, it promotes family relations such as the rearing and education of children, and the protection for the elderly and sustaining of parents (18.4, 29.1). Do you think that all three of these forms of particularities that stand out in the African Charter could be lumped together as the single category of “culture”? How do some of these duties infringe the UDHR? Makau argues that these unexpected rights correspond to pre-colonial times. (358) While he concedes that much has changed in Africa after colonial rule, he highlights the values set forth by the Charter as “ideals in pre-colonial African philosophy”. Makau acknowledges that the Charter may be abused by political elites, but at the same time argues that such a generous Charter also opens doors for grass-roots democracy and fraternal governance, “as in the days of the old where chiefs were held accountable” (360). Steiner is particularly critical of Makau’s viewpoint, framing his own questions as “Does his argument persuade you?” or “Is his view helpful?” instead of “Do you agree?”. Can the fact that Steiner is a Harvard law professor in the United States be an influence in his position towards Makau? What other variables should be taken into account when contextualizing the African Charter, for example, that pre-colonial societies bore no written law, or that European rulers further fostered inter-tribal animosity to facilitate colonial domination?