norms for the just allocation of the human rights and basic freedoms necessary to protect human freedom and to guarantee peaceful cooperation; second, the establishment of principles and rules for the just distribution of scarce resources through private competition and governmental correction of market failure; third, the establishment of norms for a just constitutional order which protects the interests of citizens against a failure in government.241
understanding of rights that one finds a call to correctness. In the second, political sense, its meaning is more that of a positive right. That is, it is a provision that originated in a pre-determined procedure. For most scholars, human rights are understood as a combination of morality and positivity. This places them into a special class of rights;
they are moral rights of the highest order, the final resort in the realm of rights, rights of which none higher exist. In this sense, human rights may represent not only positive law but also extra legal claims that may sometimes challenge even the law itself.243 Universal human rights are first and foremost moral or positive norms: they are a moral idea of what is due to a person and they are a positive enactment of something acknowledged objectively as a right. However, in reference to its claims to special or superior authority or force244, not only is the legal character of a human rights norm, as given by the classical lawgiver, within a particular political system, to be acknowledged, but also the deeper truth that the profound moral legality of the provision precedes its very pronouncement; the pre-existing truth needs only to be given expression in the law.
Human rights is a multidimensional concept that needs to be understand on at least two interacting levels: on the one hand, on the basis of a value system that places the human being at a superior and privileged ethical level and, on the other, as a positive norm that gives legal expression to such moral claims.245 Human rights may be said to be axiological in that they express ethical exigencies upon the human person. Human rights are also political in that they appertain to the political discourse of a society; they form part of a political will and ideology. From a political standpoint, human rights are often considered but a part of a society's political structure; they are considered to emanate from political institutions, not from morality. Similarly, for those who think of human rights in terms above all of political institutions, of primary importance is the emphasis on public order relative to the role of the individual in the polity. Clearly, human rights do have a legal element, shaping such values or ethical exigencies into enforced
243, Donnelly, above note 166, p. 14.
244 Noll, above note 166, p. 198 “Der Rechtspositivismus kann bereits auf der analytischen Ebene widerlegt werden, da nämlich ein begrifflich notwendiger Zusammenhang zwischen Recht und Moral existiere. Das Recht erhebe nämlich einen Richtigkeitsanspruch und verweise bereits von seinem Begriff her auf die Moral” See also Lauterpacht, above note 22, p. 74 “However (...) while they [natural laws] are bound to be mischievous when conceived as an alternative to changes in the law, they are of abiding potency and beneficence as the foundation of its ultimate validity – the validity of positive laws- and as a standard of its approximation to justice”.
245 Álvarez Ledesma, above note 162, pp. 131-133.
implementation of actual legal rights. Each of these dimensions has its own problematic.
Nevertheless, our interest here is simply to reaffirm a conception of human rights that understands them, above all, as moral theory that, in reference to the rules governing society, is primarily axiological in character.
If life in society is understood to aim at the fullest realization of the individual, human rights, equally, must be understood from a moral and ethical standpoint. The rationality underlying the public order is located in a basic human, moral discourse, and not within a purely political or legal area of human activity. That is, they cannot be reduced to positive enactments. The political and the legal serve only means to guarantee a fundamental moral claim, namely, equal treatment before the law for all, with a view to assuring the fullest realization of a person's potential. In other words, the norm against which all acts must be measured is a moral norm. Indeed, a morality of human rights transcends even the importance of the polity. To ask oneself what are human rights is first and foremost to enquire into the moral nature of the human being, for human rights emanate from the individual's moral nature. Thus, the theory of human rights is a moral theory that possesses also a political and a legal dimension. It seeks to establish that human action must conform to certain basic behavioural considerations in order for life in society to be regarded as morally good. In short, the human rights thesis argues that a society's most fundamental rules must be found in the most fundamental rules of morality.246
There is no consensus in the understanding of human rights. Human rights philosophers and practitioners have not yet established a unified understanding of the nature, content, and scope of human rights. Although there exists a human rights framework that does encourage a certain evolution of our understanding on the basis of positive national, regional, and global acts, the philosophical debate still reveals much intellectual disagreement on the subject of human rights.247 Nevertheless, this complex intellectual evolution has of course been difficult, even as nobody said that to reach a consensus on the concept of human rights would be easy. Issues of a political, economic, and moral nature, that suggest the supremacy of certain interests and values over others in the context both of national and of international law, in a world that is experiencing a proliferation of international actors, and which at the same time lacks a strong, central,
246 Menke & Pollmann, above note 188, pp. 25-32.
247 McDougal et al, above note 173, p. 63.
formal international legal structure, clearly hinders a straightforward road to the realization of a moral theory of universal human rights. One of the biggest failures of which human rights scholars have been accused, is that they have not been able to establish with clarity the common interests of humanity in the context of the shared values of universal human rights. 248 Attempts have been made to explain how human rights differ from one another, especially in relation to the source of their justification, its nature, its content. Some interpretations conceived human rights as natural absolutes of metaphysical justification; others describe them as punctual demands of a particular historical moment. Sometimes human rights exist only when a particular state decides to acknowledge them; they may be said to be given rights, which operate only in a particular state.249 Some distinguish sources of justification between transcendental, anthropological, and positivist.250 Yet another author identifies four schools of thought in relation to the fundamental question of what human rights are, namely, the natural school, the protest school, the deliberative school, and the discourse school.251 All that this really shows us, however, is that human rights have several aspects, moulded from a variety of perspectives, which do not necessarily need always to be wrong.
Human Rights are in part, but not exclusively, concrete forms of human values. Human rights are moral exigencies that belong to a system of values common to all human beings, and that require a certain level of concretization to produce certain effects. Their basic philosophy may be seen in all the most important world cultures.252 Throughout history, standards of human behaviour have been expressed and executed as moral commandments, or as positive rights, as absolutes, or as contingent guarantees. Human beings seek always a spectrum of action that, in the first place, permits the existence of the individual and, secondly, the subsistence of the individual and, thirdly, to allow the individual to develop his or her personality to its fullest potential. We do so through
248 Ibid., p. 64.
249 Ibid., p. 66.
250 Noll, above note 166, pp. 170-171 According to this author the foundations of Human rights are transcendental, anthropological, and positivist.
251 Marie-Bénédicte Dembour, “What Are Human Rights? Four schools of Thought” Human Rights Quarterly 2010 Vol. 32 No. 1, pp. 1-20. The natural school: human rights are those rights one possesses simply by being a human being. The protest school: human rights are claims that allow the status quo to be contested in favour of the oppressed. The deliberative school, human rights are political values a society chooses to adopt, they come into existence through a societal agreement. The discourse school:
human rights exist only because people talk about them, human rights is only a political language to express political claims.
252 Nowak, above note 1, p. 9.
basic truths or principles that nevertheless concern a more complex system of human action and organization, with their source in either religion, natural law (or the autonomous individual), and positive law (or the authority of a collective state of being).253 We can therefore affirm that human action is derived from moral norms, tradition, and positive law.254 None of these sources may be excluded.
Human Rights theory is a moral theory with differing philosophies. In international society, the discussion about individual entitlements occurs in the context of human rights discourse. How is the individual to be universally protected? Has he or she any universal rights? Highly controversial issues of this philosophical nature nurture the debate on human rights law and doctrine. As a contemporary doctrine of individual realization in the context of a world permeated with diverse conceptions of states and forms of authority, the notion of universal human rights faces serious difficulties when applied to a specific set of circumstances, circumstances often dominated one or other dogma, such as the sovereignty of the state, the monopoly of the state as the only subject of international law, and so on, which often opposes the thriving cogency of international legal guarantees of individual rights. Efforts to encompass different philosophical notions of human rights have proven very difficult; they have only resulted in positive law as a matter of practical reasoning, as demonstrated by the debates of the drafters of the UDHR.255 As the Universal Declaration of Human Rights itself shows, practical agreement was only reached256 with the idea of elaborating a life project to which all humanity could strive. However, both at the practical and the theoretical level, it was agreed that human dignity should be the foundation of human rights.
253 Shestack, above note 164, pp. 36-39.
254 Heinz-Dieter Assman, “Recht und Ethos im Zeitalter der Globalisierung: Zur Einführung” in Recht und Ethos im Zeitalter der Globalisierung H-D Assmann und R Sethe (eds.), 2004, p. 11.
255 The drafters of the UDHR, in spite of coming from different cultural and ideological backgrounds agreed that repesct of human dignity is the moral basis for human rights.
256 Ishay, Micheline R (ed.). The Human Rights Reader. p 2, Ishay, above note 6, p. 2.
CHAPTER 3 ON HUMAN DIGNITY