"Historicizing Rights: Roots and Routes- Foundational and Historical Questions"

• Where do rights come from?

  • Historical events:

    • Violation of a right demonstrates the necessity and acknowledgement of said right

  • Religion:

    • Some religions justify certain rights and also try to justify the invalidation of certain rights

  • Public leaders and institutions, the State:

    • Some rights can come out of or flow through the state, more flowing from a legitimate state

• What's the message?

  • Human rights are contested, they are contested in:

    • Agreement or disagreement about a right

    • Different claims relating to different rights (e.g., religions claiming or not claiming to believe in certain rights)

    • Who enforces rights and how they choose to implement them (e.g., through legislation or force)

    • Relationship between human rights and social justice

    • How human rights principles enable or constrain political debate

• Questions the course seeks to answer:

  • Where do human rights come from?

  • How do we know what is just?

  • Who is authorized to decide?

  • What is the nature of the 'human' who is the subject of 'human rights'?

  • What do human rights accomplish?

  • Do human rights principles enable or constrain political debate?

    • How do politics promote and limit human rights and how do human rights promote and limit the ability to enact social justice?

  • In what ways do state leaders control the discourse and implementation of human rights?

    • How does the election or appointment of state leaders affect the discourse and implementation of human rights?

“Natural Rights” and the Invention of the Individual 

• Foundations:

  • The start of something

  • Often built upon later

  • If the foundation is strong then there is a higher likelihood of something continuing onwards

  • Thinking of “founding fathers” is often dangerous as it leads to a silencing of other prominent thinkers or figures, while often only focusing on Eurocentric in nature

• Liberalism:

  • Relating to making money and living their life in the way that they choose, taking away class and hierarchies and allowing for people to be self-determinant

  • Not letting things like birth, order, who’s one’s parents are, family/blood-lines etc. Determine what one is/is not allowed to do

• Biletzki explains how it is important to understand the foundation because it is still present and visible today, in order to understand the modern, contemporary human rights regime it is important to understand what these things themself come out of liberalism?

• Important to try to understand and acknowledge that buzzwords “justice” etc. Are terms that have different meanings and these many meanings often get contested.

• Human rights is one way to try to provide answers to justice/injustice inquiries, but the answers it provides can be very varied in nature

• At times human rights can do a disservice to social justice according to some but according to others human rights are acting in favour of social justice

• Foundations can change, when thinking changes and when responses to questions people are posing in regard to human rights change then the foundations are also going to change along with them to better reflect what is built upon the older foundations

• Foundationalism: internal issue within human rights which questions the start of human rights and how it developed along with how people determine how rights are attached to certain leaders and how these leaders will or will not authorize these rights

• Understanding why people have rights often circles back to the response of “because I’m a human”:

  • What it means to be human can relate to natural law, which relates to innate human nature and can relate to ‘the state of nature as Hobbes stated, which is related to what humans are like in their most natural state

  • Hobbes believes that the natural condition that humans reside within would relate to humans acting in their natural state which Hobbes believed was very chaotic, negative, and exceeding biased and discriminatory, Hobbes believed that “natural” would refer to people without governance being unwieldly beings

  • Hobbes believed that “natural” in relation to the principles such as when he states that it is within human nature to “preserve one’s life”

  • Nature can serve as a base for what can be considered correct

  • Hobbes was influenced by Galileo and other scientists/philosophers, Hobbes was basing a lot of his work off of their work and at the time the scientific use of observing the natural world and systematically making note of it — aka observational science

  • Nature is often also used in ways that can be inflammatory or discriminatory but blatantly untrue

    • Example of when it was used in an extremely discriminatory way:

      • Anti-gay marriage laws are being backed up by conservatives because gay marriage is “unnatural” when not only is this discriminatory but blatantly untrue

    • Example of non-harmful and helpful law/understanding relating to the natural world:

      • Looking to Indigenous understandings of management and governing of the land

  • UN Declaration of Human Rights:

    • The UDHR talks about how it is unlawful and unnatural to allow any form of genocide

    • This declaration followed up with the statement that there must be some foundational rights because if these foundational rights are not present or not legitimate then atrocities can occur as seen as unlawful regardless of who is stating said laws

    • This moment in this declaration is pivotal to the foundation of the modern human rights discourse and understanding

    • There are some laws and rights that are derived from the realization that at the base of everything there is humanity

  • To understand nature is to comprehend man as a natural, rational, human being. The terms used was “men” consistently they oftentimes were solely referring to men because their idea of what is reasonable, autonomous were only men and if you were not an adult, white, cis-male, that was european/white then these things would not be applied to you

• State of Nature according to Hobbes:

  • Conflict

  • Selfishness

  • Continual war

  • Everyone only looking out for themself

  • Violent

  • Individualistic

  • People are very insecure

• Hobbes believed that a man’s family were his possession, there is no kinship or reciprocity

• Hobbes believed that general equality comes from the fact that each person is generally the same intellectual and level of power, therefore if everyone shares the same level of vulnerability meaning that no one will rise up into power, meaning that everyone governs themself and that everyone must act in selfish ways in order to succeed

  • In this condition, everything is always up for grabs

• Hobbes is not making a claim that this type of vulnerable equality is good but more that it is present according to him

• Hobbes believed according to the above reality that there was no propriety, no morals, no norms and no sovereignty or overlord therefore items and property laws for example if you cannot defend it yourself then it will not remain yours

• Hobbes believed that in order to learn about human nature you should look to the individual human Aristotle did not relieved this he believed you should study the polis in order to learn about humanity

• Contractualism:

  • Idea related to everyone signing a hypothetical contract in order to state that they will not simply do whatever you want, and that if everyone upholds/is forced to uphold a contract of not just doing whatever you want because there are higher authorities

  • Possession v.s. property:

    • Property belong to you according to the law and if something is stolen then the higher authority would persecute whoever stole the thing and there is also propriety referring to social norms that would be enacted (i.e. people saying hey that phone is stolen you can’t do that, or in the case of authority: you’re under arrest for theft

    • Possession in Hobbes’ natural world would relate more to if you are in possession of it, then it is yours

  • Aristotle stated that “man by nature is a political animal”

Rights & the Political

• Conflict of interest in rights questions

  • Rawls' original position: individuals sit behind a "veil of ignorance"

    • Blind to everything about social organization, positioning, etc.

    • No bias towards advantaging oneself

  • Principles are morally defensible and 'set in stone'

• Politics: distribution of power, discussion, rules governing power

• Difference between contracted rights and natural rights (positive law / civil law)

  • Enforcement of contracts is the key utility of the coercive power of the state

  • Giving up rights, expect state to equally enforce the rules on everyone

• Property vs possession

  • Natural vs civil liberty

    • Natural: unlimited right to what you want if you have the power to get it

    • Civil: a right to property guaranteed in law (and not merely possession)

• Idea of people as property throughout history

• Freedom to enter into contracts

  • Wage contract: labor for money, not self for money

• Contractualism: can only give up natural rights for better civil rights

  • Equality before the law instead of general equality

• Mills on Utilitarianism: greatest amount of happiness to most amount of people

  • Individuals should be able to do whatever as long as they don't harm anyone else

• Theories of Rights textbook: different definitions of rights

  • Human rights: politics, philosophy, law

  • Holtfelt: right, privilege, power, immunity

  • Interests and duties: core concepts in all rights

  • Positive vs. negative rights: doing vs. not doing

• General vs. special rights: everyone vs. a special group

• Natural/moral rights vs. socially constructed rights

• Rawls justice as fairness: create values, original position, before anything else

  • Veil of ignorance: everyone accepts and agrees on rules

  • Alternative to utilitarianism, some overlap

• Priority problem: what is utilitarianism? What are its limitations?

  • Focusing on the greater good for all people, maximizing happiness

  • Common criticism: does not provide an adequate account of individual rights, especially minority rights

• Rawls' "justice as fairness" vs utilitarianism

  • Rawls focuses on fairness in the distribution of resources to ensure the most disadvantaged are not left behind

  • Utilitarianism prioritizes the greater good for the majority

• Instrumental and contractual theories impact human rights

• Bilitzki's chapter "Theories of Rights": specific vs. general rights

  • General rights applicable to the general public (e.g., right to life)

  • Specific rights targeted towards a specific group (e.g., disability acts)

  • Examples in society: sex education, LGBTQ2S+ rights, wealth tax, vaccine/mask mandates

• Rawls' justice as fairness: justice denies the laws of freedom for some for the greater good of others

Moral Theories and Justifying Rights

• Who has rights?

• Who decides what rights are/are not?

• Who believes that rights are the same for all?

• Whose interests are rights best serving?

• What happens when people's interests and wants do not align with their rights?

• Moral Reasoning:

  • Rawls' concept of the "original position" and the "veil of ignorance"

    • All individuals are behind the veil of ignorance, knowing nothing about others

    • Moral reasoning should be determined from this perspective

  • The importance of the veil of ignorance in creating unbiased rules

• Politics

  • Determines how people should be treated

  • Can be institutional in nature, creating laws to perpetuate interests

  • Examples of moral principles in politics: "one person one vote" vs. "money is speech" or "might is right"

  • Some laws may be unlawful if they go against moral concerns

  • The UN declaration recognizes that there are laws that contradict moral principles

  • Deontological Ethics

  • Rights imply obligations

• Contract-Based Rights (Positive Law, Human-Made Law, Civil Law/Liberty)

  • Enforcing contracts is related to the state's ability to enforce mutually agreed-upon contracts

  • Civil liberties emerge from the social agreement

  • Individual rights are similar to property rights, including bodily autonomy

  • The concept of self as property right challenges feudalism, patriarchy, monarchy, and status inheritance

  • Individuals have ownership of their property and can enter into contracts autonomously

  • Ownership of oneself allows for changing social standing and benefiting from one's choices

  • Individuals cannot give away themselves but can give away time, skills, work, etc.

  • Rousseau's belief that one cannot give away personhood and sign a contract that fully gives oneself away

  • Contractualism: If the government breaches the social contract, individuals have the right to overthrow it

• Status Right or Natural Rights

  • These rights come from nature and exist because of one's human identity

  • The power to perpetuate these rights can be infinite

• Property vs Possession

  • Property: Something owned and enforced by the social contract

  • Possession: Something currently held, supported by brute force rather than a social contract

• Abstract Individualism

  • Relates to formal legal equality

  • Every person has property within themselves and can enter into contracts as they choose

  • Liberalism promotes formal legal equality for abstract

Dilemmas of Universalism

• Historical authorization of human rights by religion, colonialism, revolution, the UN, the State, etc.

• Traditional perspective in meta-ethics emphasizes universal response in human rights discourses

• Richard Rorty's concept of sentimental education focuses on emotional foundation rather than logical or reason-based definition of being human

• Sentimental education can come from the education system or storytelling

• Rorty's pragmatism opposes foundationalism and challenges the foundation of defining human rights

• Transhistorical concept of human nature looks at humans as they are in the present moment

• Human rights are different from other rights: cannot be given or taken away, innate, for all humans, not limited to specific groups

• Human nature and the definition of human rights are closely related

• Hobbes and Locke, as liberal political theorists, believed in formal legal equality and the importance of reasoning and understanding

• The Enlightenment and the Individual

• The Enlightenment shifted from religious beliefs to scientific beliefs

• Invention of the printing press allowed for individual interpretation of the Bible

• Martin Luther questioned the abuses of power by the church and translated the Bible into vernacular languages

• Protestantism emphasized direct relationship and discourse with God without the need for priests

• The US Declaration of Independence was influenced by Protestantism

• Thomas Paine's book "Common Sense" emphasized accessible truth and knowledge for all

• The idea of the individual relates to formal equality and arguments for abolishing slavery and women's suffrage

• Enslaved people and married women faced limitations on their rights

• Having property within oneself pushed human rights discourse forward but also had drawbacks.