1 The question about what are Human Rights
Why do we ask ourselves what human rights are? The international legal recognition of individual but universally valid entitlements or claims, beyond any limits imposed by the nation state, is now the basic paradigm of contemporary international law. At the same time, we know from a study of history that the idea of the autonomous individual possessing rights and duties in tension with an outside power, such as a polity, is not new at all. What was new at the time of the origin of the United Nations system was not the existence of human rights, as such, but rather that for the first time these human rights were recognized as international positive rights. Indeed, many scholars argue that the history of human rights begins earlier, even, than with the constitutional developments in France and America during the Enlightenment, and their subsequent institutionalization at the international level in the United Nations legal system. It is a question of history and of philosophy.
Why are human rights necessary? What distinguishes human rights law after the reorganization of international society post-World War II is precisely the new emphasis on individual entitlements as positive cross-border rights, the recognition of the universality of human rights as international positive rights. Today, the legal protection of the individual has become the main focus of attention among social scientists and politicians. Therefore, human rights, understood as a positive legal expression of human entitlement, are a source of intense debate and disagreement. What to many is a self-evident truth or a universally valid moral principle, is sometimes for others just the opposite. Setting aside such theoretical debate, history also suggests that, in practical terms, there exists a need to protect the individual across boundaries—that is, universally—and to do so with legal guarantees that protect the individual from external abuse.
Reflection upon the moral world of the individual requires that account also be taken of the moral implications of the economy. Today, the process of economic globalization accentuates the need to protect the individual against the sometimes negative consequences of such economic development. As many national states might do, new actors in the international economy, notably the purely profit-driven multinational and transnational businesses that operate on the international market in search of economic profit generally do not care so very much about human realization and human flourishing, at least not in a "humanist" sense. Such an economic model, seen from a
humanist or human rights perspective, calls for an analysis of the moral values underpinning its economic theory. To give concrete form to guarantees of individual rights we need again to ask a fundamental question, a philosophical question: to what is, or to what should be, a human being entitled? What are these human entitlements? And are these human entitlements also human rights?
2 About the Philosophy of Human Rights
The concepts of human rights law must of course be subject to philosophical scrutiny;
The task is to develop a comprehensible and well-substantiated philosophical explanation of human rights that explains at least the most elementary entitlements of the individual being vis à vis external power. That is, on the one hand, which freedoms may we enjoy and, on the other, which constraints may be imposed on our natural individual liberty by a third or outside entity? Philosophy must also explain the degree to which collective interest may or may not overrule individual interest, and vice versa.
In concrete terms, philosophy must inform the policymaker as to which positive social model most effectively permits, facilitates, and encourages, the fullest individual expression and realization. Here it is important to stress, too, that there are many different social models, from those of very small, civil societies, to those of very large, politically organized societies, such as the nation state, the transnational society, the international society, the universal society.
The answer to the fundamental question of what precisely are human rights cannot be given from an exclusively or strictly legal standpoint; human rights are multidimensional in character, grounded in both the moral and rational aspects of the human person, and in both the individual's autonomy and in their role in society. Human rights encompasses notions that are political, legal, and axiological. Human rights or human entitlements refer to the value of the human person as well as to the scope and reach of his liberty. Furthermore, human rights contain a component that is intrinsic relative to the nature of the person, and another component that is acquired relative to the contingencies that find expression in certain sets of circumstances. Both elements must be reflected in legal discourse. Human rights have an influence in each single aspect of life: they inform us as to what life is, morally speaking, and how life should be conducted. Human rights have a philosophical dimension, where one finds their
theoretical foundation and conceptual elaboration. 162 Methodologically, the philosophical conception of human rights comes prior to their legal concretization.163 It may be helpful to reflect upon the philosophical foundations of human rights. Prior to the United Nations Charter, the world of international relations recognized no international human rights legal regime comparable to that we have today. However, there did exist philosophies and theories that explained international human rights, if not in the contemporary sense, then at least as that to which the human being is entitled.
Admittedly, some of these approaches to human rights grew from religious belief; they may be understood in terms of the moral conduct of the individual as guided by faith.
There exist also other theories that defend human rights and fundamental freedoms by emphasizing certain basic attributes of human nature, such as individual reason and morality. This is the doctrine of natural law. By contrast, other theories stress the positive legal character of human rights; that is, a theory of positive law that frames human rights within a clear definition of what is a right. Some important ideologies, notably Marxism, express an understanding of human rights that reflects their basic conception of society, their social model, by stressing the major role played by collective effort in contrast to the comparatively minor role played by any one individual. The anthropological school of human rights understands human rights from a cultural perspective. The sociological school, in contrast, thinks of human rights in terms of individual contingent claims within a particular society. In terms of our contemporary understanding, there is a tendency to equate human rights to notions of ethical justice. Theories of this type are variants of a complex view that embraces human rights as part of an overarching conception of law and society, in which ethical behaviour is at the heart of human rights. Closely intertwined with our understanding of justice, we have seen that sometimes a theoretical understanding of human rights evolves as a reaction to injustice, and that yet other theories of human rights may be based upon notions of human dignity. Moreover, there are also theories relative to morality and politics, that is, theories of justice; and theories that link morality and economics, that is, theories that direct their focus on the free individual's utilitarian advantage.164 It would be a mistake simply to dismiss these theories on the grounds of
162 Mario I Álvarez Ledesma, “Acerca del Concepto Derechos Humanos”, 1998, p. 22.
163 Ibid., p. 33.
164 Jerome J Shestack, “The Philosophical Foundations of Human Rights in Human Rights” in Concepts and Standards J Symonides (ed.), 2000, pp. 42-61.
their diversity. It should rather be possible to identify the strengths of each school of thought and, moving forward on the basis of such reflection, to come to a more robust conception of individual entitlements.