Lecture on the Philosophical Foundations and Fundamental Questions of Human Rights

1. Lecture on the Philosophical Foundations and Fundamental Questions of Human Rights Master Theory and Practice of Human Rights 16.9.2014 Oslo C.Corradetti

2. Question • Why do we need a philosophy of human rights?

3. What are human rights? • States Constraints • Enabling conditions • Minimum Guarantees • ....

4. Where do human rights come from? • God • Natural Law theories • Experiences of Wrongs: threats from the modern state, experience of injustices (see Nickel, p.71) Question: can we agree on wrongs in the absence of an agreement on «the good and the right?»

5. Are Human Rights Descriptive or Normative? • Universal Declaration of Human Rights Art.1 «All human beings are born free and equal in dignity and rights» Is this a descriptive or a normative statement?

6. Are Human Rights Descriptive or Normative? The concept of Human Rights is problematic since there is no overall agreement on the criteria connected to valid uses of the term. Shouldwe just dismissthe term?

7. Are Human Rights Descriptive or Normative? ...Not necessarily since it can be distinguished: -an intenSional aspect: i.e. «human rights are rights that we have simply in virtue of being human» -an extenSional aspect: all the documents connected with human rights issues, i.e. French Declaration, UN Declaration etc.

8. Are Human Rights Descriptive or Normative? Nickel (2013) : «human rights are the rights of lawyers not of philosophers» (p.1) What does it mean and what justifies human rights laws ? Nickel «three levels of analysis» (p.3):

9. Are Human Rights Descriptive or Normative? 1 first level (normative): A philosophical account of human rights! Possible candidates: humanity, dignity, equality, liberty etc... 2 second level (normative and descriptive/intensional and extensional) norms following these basic accounts and showing to be «universal» 3 third level (descriptive) measures to defend universal norms

10. Foundations of Human Rights Two ways of interpreting the normativity of human rights: • Kantian-deontological human rights have a valueindependently from the promotion of its ends: i.e. making life good. No-trade-off with other goods in life!

11. Foundations of Human Rights 2) Consequentialist: i.e. Utilitarianism maximization of total happiness, ergo trade among different goods according to maximization of total happiness

12. Utilitarianism: Principleof (Total or Average) Happiness as Principleof Law (and Justice): Total Happiness/Utility: maximizationofthe total utility by addingindividualutilities Case 1 x2, y6,z4 = tot. 12 preferable to x4, y, 4, z3 = tot.11 AverageHappiness/Utility: maximizationofaverageutility x4,y4,z4 = tot. 12preferable to x10,y2, z1= tot.13

13. Foundations of Human Rights One property of Human Rights: Directionality! Teleology of rights: promotion of human rights admitting also balancing (not trade-off) for accomplishment of goods in life. Not to be confused with consequentialism or utilitarianism!

14. Foundations of Human Rights Confront the directionality of rights with Nickel’s discussion of human rights as goals (p.24) Rights cannot be reduced to goals («the mandatory character is missing»), but their potential conflict should be arranged in a teleological/goal oriented way

15. Are Human Rights Descriptive or Normative? Whichever approach is chosen...problems remain with the intensional «indeterminateness» of human rights Therefore One needs to articulate a philosophical argument to specify this indeterminateness and add a content.

16. Why a Philosophy of human rights? • Let’s see one example of an intensional articulation: Nickel’s pluralist thesis: the 4-claim framework • A secure claim to have a life • A secure claim to lead one’s life • A secure claim against severely cruel or degrading treatement • A secure claim against severely unfair treatement

17. Why a Philosophy of Human Rights? A secure claim to have life -negative duties not to harm, use violence etc. Generally as «freedom from violence» A secure claim to lead one’s life -protection of agency, freedom from slavery, servitude etc. A secure claim against cruel and degrading treatment - this is highly depeneding on the circumstances

18. Why a Philosophy of Human Rights? A secure claim against severely unfair treatement -i.e. Duty not to imprison innocents etc. ALL 4 protects the notion of Dignity! Un.Decl.«inherent dignity...»

19. Why a Philosophy of Human Rights • A second example: Griffin’s proposal Human Rights are universal simply because they are possessed by human agents in virtue of their normative agency, but this condition gets specified within a society.

20. Why a Philosophy of Human Rights Human rights as protections of our personhood-normative agency: «To be an agent..one must (first) choose one’s own path through life…‘autonomy’. And(second)...one must have at leastthe minimum provisionofresources and capabilities (‘minimum provision’)»…so (third) others must also not forcibly stop one from pursuingwhatone sees as a worthwhilelife (callthis ‘liberty’)»

21. Why a Philosophy of Human Rights First Step of Griffin’s Proposal: Persohood as a ground for Human Rights Argument: • First Step: personhoodasautonomy «Kant thought that one would be autonomous only if one’s actions came from a purely rational, intentional centre..the noumenal self…But rationality requires thought; thought…requires language; and language is a cultural artefact etc.»

22. Why a Philosophy of Human Rights • Second Step: personhoodas non-abstractautonomy «Ouraim must be the more modestone of understanding ….the autonomyof Homo sapiens. So by the word ‘human’ in the phrase ‘’human rights’ weshouldmean, roughly, a functioning human agent. And human rightscannottherefore be entirelyahistorical»(p.35)

23. Why a Philosophy of Human Rights • Problem: violationofHume’s is-oughtlaw (Hume, A Treatiseof Human Nature, book III, part I sec.I, 1739): Descriptive statements «x is y» areinherently different from normative/prescriptive statements «x ought to be y (act, behave etc.)»

24. Why a Philosophy of Human Rights No identification of moral properties with natural properties. i.e. from thefactthat it rains it does not followthat it ought to rain! Or in the case of human rights: given a certain description of human beings you cannot derive certain human rights!

25. Why a Philosophy of Human Rights Griffin’sstrategy: the solution is to advance a non-naturalistic (not based on natural sciences) notion of «human nature, agents» ! «I single outfunctioning human agents via notionssuch as theirautonomy and liberty…theyareexpeciallyimportantintereststhatrightscan be derived from them…»(p.35)

26. Why a Philosophy of Human Rights • Therefore: «So my notionsof ‘human nature’ and ‘human agent’ arealreadywellwithinthe normative circle, and there is noobviousfallacy in derivingrights from notions as evaluativelyrich as theyare» (p.35)

27. Why a Philosophy of Human Rights i.e. If I say «I’m in pain» I make both a descriptive and an evaluative statement The universalityof human rights (and theirderivation from thisstartingpoint) is saved!

28. Agency in J.Griffin On Human Rights, OUP 2008 • The Three Components of Normative Agency/Personhood Autonomy Liberty Welfare

29. Agency in J.Griffin On Human Rights, OUP 2008 Autonomy: is concept involved in forming the conception of a worthwhile life. It refers to theindependenceofthesubject for moral reasoning. It must not be confusedwithliberty!

30. Agency in J.Griffin On Human Rights, OUP 2008 Liberty: it guaranteesthepursuitof a worthylife not itsrealization! It is constructedontwoconditions: positive duties («duty to do something») and negative duties («duty to refrain from doingsomething») It is defined by Griffin in Kantian terms: my liberty must be compatiblewithequallibertyof all. Suggestion! Read I.Berlin «TwoConceptsof Liberty» available online at: http://www.wiso.uni-hamburg.de/fileadmin/wiso_vwl/johannes/Ankuendigungen/Berlin_twoconceptsofliberty.pdf

31. Agency in J.Griffin On Human Rights, OUP 2008 Welfare:thereseem to be a strict co-dependencebetweenlibertyrights and welfarerights (indivisibility), but Griffin saysthatthis is tooweak! One should not defendonlyan empiricalnecessitybutalso a logicalnecessity! Normative agencyrequiresthefulfilmentofbasic material conditions.

32. The Problem of Rights Two types of conflicts: 1)conflicts between human rights 2)conflictsbetween a human right and welfare (i.e.redistributionofgoodsinfringing my liberty) How to solvethem?

33. The Problem of Rights For Griffin these solutions require trade-offs ! Therefore in Griffin’s theory human rights are not absolute. Teleological approachweightingrights in viewofthepromotionofthenotionofpersonhood (3 components) – evaluationof loss/gain in personhood (major/minorlibertiesaffectingdifferentlythenotionofpersonhood)

34. The Problem of Rights • Whose Rights? Who is NOT included in the category of normative agents as defined by Griffin through «personhood/agency»? «Human infants are not normative agents. Neitherare human foetuses, nor theseverelymentallyhandiccapped, nor sufferers from advanced dementia»p.83 Ergo: for Griffin theydon’t have human rights…! Let’s explain (next time).