Justice and Solidarity

Whereas the concept of human development in post-modernity is supported by a post-modern philosophy of human rights, in modernity it is supported by a modern philosophy of human rights. The modern State has failed in th e modern philosophy of human rights and the post-modern philosophy of human rights has laid aside a modern philosophy of human rights. This means that ethical foundationalism and emancipatory great narratives of human development have been discarded. We suggest that a pragmatist ethics of alterity and a post- modern policy of alterity may be a help in the elaboration of a post-modern philo sophy of human rights.

To answer the question posed in the title it is useful to distinguish between human rights as the set of rules and human rights as principles. It also distinguishes between human rights and the philosophy of human rights. In 1948, there existed a cross-cultural consensus on rights as principles and on basic tenets of the philosophy of human rights. Recently, the consensus over principles and over the philosophy of human rights has broken down. The events of September 11 did not start this process; it merely accelerated it, and the war on terrorism brought it to a point that could be beyond repair. Therefore, our task today should not be to restore the consensus over the philosophy of human rights, but to detach the rules from – once universal, albeit no more – principles so that we could rescue human rights norms and find the most adequate means to enforce them. To understand better this thesis, a brief overview of the development of human rights is in order. The Original Consensus on Human Rights The Universal Declaration of Human Rights (UDHR) adopted by the United Nations in December 1948 reflected a broad consensus between various ideas, values, and cultures. Even though the idea of individual rights was of Western origin, it was the non-Western countries that pushed for the adoption of the Declaration, against some reluctance of the Western governments (Lauren 1998: 165–71).

The idea of human rights has a home in multiple domains: human rights are the subject of a vibrant international activist movement, of a growing body of international law, and of a burgeoning branch of moral and political philosophy. Given this fact, how should philosophers understand the appropriate relationship between a philosophical theory of human rights and the existing international human rights practices? There is a general sense among philosophers that ‘‘human rights’’ is, as James Griffin puts it, ‘‘a theoretical term,’’ one developed (albeit without what Griffin calls ‘‘sufficient determinateness of sense’’) by political theorists and moral philosophers, and that the point of human rights law and activism is to attempt to realize the idea expressed by this term. On this view, philosophy’s contribution to existing human rights practice is to provide a theory of moral human rights – as Griffin would put it, a ‘‘completion’’ of the incomplete theoretical term. For such a purpose, philosophers only need to do the kind of theoretical work they have always done; engagement with any of the human rights practices is unnecessary. Charles Beitz, in his recent book, The Idea of Human Rights, explicitly rejects this view of what the philosophy of human rights is for; on his view, the philosophy of human rights should ‘‘treat international human rights as a normative practice to be grasped sui generis and consider how the idea of a human rights functions within it.’’ Beitz aims to develop a ‘‘practical conception’’ of human rights, according to

The philosophy of human rights has, in recent years, revolved around a supposed dilemma. On the one hand, some contend that the normative system of human rights should be understood from a moral point of view that is independent of conventional practice of human rights. Others contend that the normative system of human rights should be understood from a point of view that is internal to the practice of human rights. A New Philosophy of Human Rights: The Deliberative Account takes on the ambitious task of offering a new philosophy of human rights grounded in the proposition that the current debate is centered on a mistaken assumption. After identifying this error, Joshua J. Kassner develops a novel philosophical account grounded in a deliberative process that leverages the epistemic and practical functions of the practice of human rights, bridging the divide between orthodox and political accounts and promising a more hopeful and constructive future for the philosophy of human rights. The book ends with suggestions for institutional design and reform to transform the promise into reality.

The philosophy of human rights has, in recent years, revolved around a supposed dilemma. On the one hand, some contend that the normative system of human rights should be understood from a moral point of view that is independent of conventional practice of human rights. Others contend that the normative system of human rights should be understood from a point of view that is internal to the practice of human rights. A New Philosophy of Human Rights: The Deliberative Account takes on the ambitious task of offering a new philosophy of human rights grounded in the proposition that the current debate is centered on a mistaken assumption. After identifying this error, Joshua J. Kassner develops a novel philosophical account grounded in a deliberative process that leverages the epistemic and practical functions of the practice of human rights, bridging the divide between orthodox and political accounts and promising a more hopeful and constructive future for the philosophy of human rights. The book ends with suggestions for institutional design and reform to transform the promise into reality.

There is an enormous range of contemporary and rapidly expanding literature on human rights that pervades almost every area of human life. This entry cannot do justice to all of these areas and would inevitably fail to cover all aspects of the philosophy of human rights. Here, the goal is more modest: offering a primary overview of the thorny literature and many vital human rights issues that can become increasingly complex and muddled. The concept of human rights, however, came to particular prominence in the twentieth century after World War II, due to the atrocities (e.g., genocide against the Jews) committed by the Nazis. Since then, the idea of human rights has become profoundly influential in many different fields such as ethics, applied ethics, political philosophy, political sciences, law, international law, medicine, and public health. This has led to the formation of a new area in philosophy called “the philosophy of human rights.” The very idea of human rights, however, is older and can be traced back to early religious ideas and the notion of natural rights in Antiquity and the Middle Ages. Generally speaking, human rights are primarily universal moral norms that bind all people in all places at all times independently of any legal recognition. Whether there is a widespread agreement that all human beings have human rights simply because they are human beings is a matter of debate. However, there is currently no common ground with regard to the moral and legal justification or the ontological and epistemological status of human rights. Human rights are primarily universal moral rights and, secondly, international legal rights observed and enforced by nation-states. Despite major caveats concerning the theoretical foundations of human rights, most scholars nonetheless hold the view that there is a vital consensus on the practical importance of human rights. The Universal Declaration of Human Rights (1948) (cited under Modern Documents), is the most important human rights document and contains at least seven groups of basic rights: security rights, due process rights, liberty rights, political rights, equality rights, social welfare rights, and group rights.

History plays an important role in the philosophy of human rights, more so than in philosophical discussions on related concepts, such as justice. History tends to be used in order to make it credible that there is a tradition of rights as a moral idea, or an ethical ideal, that transcends national boundaries. In the example that I investigate in this chapter, this moral idea is tightly spun around the moral dignity of the human person. There has been a shift in conceptions of human rights during the twentieth century, from ‘politics of the state to the morality of the globe’ (Moyn, 2010, 43). Rather than figuring in, or as, constitutional principles of the political life of a polity and the relation between a state and its members, the notion of (human) rights has come to serve as the name of a state- and politics-transcending ethical position on the status of the human person, and the relations between human persons. Given that this move from politics of the state to morality of the globe is a recent one, it goes without saying that trying to ground a state-transcending morality of human rights with the help of early modern history is problematic. Still, philosophers of this kind of morality of human rights are prone to claiming, for their accounts, a long-standing human rights tradition that, frankly, is not there, at least not in that form. One example is James Griffin (2008), whose reliance on what he refers to as a historical notion of human rights is the focus of my critical discussion here. Griffin claims that ‘our’ concept of human rights is a product of eighteenth century Enlightenment thought. If ‘our’ concept of human rights is Griffin’s concept, then his claim is false – as I show. I agree, however, that the eighteenth century is a pivotal moment, but if we wish to understand natural rights in eighteenth century thought, we need to grasp the fact that power over others, and the capacity of those who hold that power to also abuse it, was not a contingent concern, or merely part of the extension of a concept defined prior to, or independently of, any such concern. It was built into the concept itself; it was its very point. (Less)

Journal Article Towards a Philosophy of Human Rights Get access John Tasioulas John Tasioulas * * Quain Professor of Jurisprudence, Faculty of Laws, UCL, London, UK. Email: john.tasioulas@ucl.ac.uk . Search for other works by this author on: Oxford Academic Google Scholar Current Legal Problems, Volume 65, Issue 1, 2012, Pages 1–30, https://doi.org/10.1093/clp/cus013 Published: 28 September 2012

Purpose. The article highlights the issue of formation of humanistic philosophy of legal protection in modern Ukraine. In connection with the assertion of democratic principles of life, a need to rethink the essence of law, its forms and manifestations, including philosophy of legal protection, has been raised. The methodology. The article has been written using the principle of complementarity of philosophical methods: hermeneutic, dialectical, axiological; general scientific methods: objectivity, systematization, analysis and comparative legal method as a special legal, which has ensured the integrity of the study and vision of legal protection as a human phenomenon. The scientific novelty is: the article emphasizes the need to overcome the legist interpretation of legal protection, which has been reduced to the problem of legislative consolidation of human rights. The idea is proposed that it is now necessary to shift the emphasis from enshrining human rights in national legislation to their real protection. To do this, under the philosophy of human rights protection it is necessary to bring new worldview-philosophical, jusnaturalistic principles, while abandoning the legist ones. Modern philosophy of human rights protection must also use a modernized conceptual apparatus. The principle of the rule of law as a mega- principle should become a reliable basis for human rights activities, an effective method of establishing a person as a subject of law. Conclusions. The state-centric philosophy of law protection is incompatible with the modern philosophy of human rights, thus it should be replaced by a humanistic philosophy of legal protection. Each of us is responsible for the state of law in the country, for himself, his self-realization, ultimately for his destiny, his descendants, the whole country. Therefore, taking care of an effective system of legal protection, of its effectiveness is a matter for everyone – state, citizenship, people, each of its representatives. Keywords: protection of law; philosophy of protection of law; legist doctrine; jusnaturalism; legal principles; legal concepts; universal values; rule of law.

Journal Article Human rights and human diversity: an essay in the philosophy of human rights Get access Human rights and human diversity: an essay in the philosophy of human rights. By A. J. M. Milne. London: Macmillan. 1986. Index. 186pp. £25.00. ISBN 0 333 406 184. Colin Warbrick Colin Warbrick 1University of Durham Search for other works by this author on: Oxford Academic Google Scholar International Affairs, Volume 64, Issue 2, Spring 1988, Pages 286–287, https://doi.org/10.2307/2621881 Published: 01 April 1988

Much mainstream legal comment on human rights law presents an unhelpfully crude picture of disagreement concerning the significance that should be attached to human rights in particular cultural co...

There is little agreement in contemporary political philosophy about how to conceive of human rights, except for a shared concern for freeing the concept of human rights from the legacy of traditional natural law theories. Even so, there is no place for anything like a reconciliation of Kelsen’s political-legal theory with a contemporary concept of human rights. The reason is not that Kelsen’s well-known and notorious criticism of various natural law traditions applies equally to contemporary philosophy of human rights, but that Kelsen’s account of democracy is incompatible with the idea of human rights. For despite all differences in detail, philosophers tend to conceive of human rights as substantive normative principles, which articulate standards of legitimacy for socio-political institutions that protect individual persons from legal or political overreach. By contrast, Kelsen conceives of democracy essentially as a method of legislating based on procedural authorization that imposes no substantive restrictions on the very content of laws. True, Kelsen explicitly defends constitutional “basic and liberty rights” with the argument that insofar as majority rule is essential to democracy, protection of minority rights is so too. But Kelsen’s account of those constitutional rights falls short of any idea of human rights, for constitutional rights are merely instrumental to the maintenance of democracy and articulate constitutional particulars of democratic states, not general substantive standards for legitimate government.

This study deals with the political theory of Thomas Hobbes and its implications to the political dynamism in Indonesia. The aim of this research is to analyze the philosophical concept of Hobbes on human rights and the theory of liberalism, and its relevance to the current situation in Indonesia, which has recently been exposed to the politics of populism. The presence of the populist movement is not new in Indonesia; but the rise of the politics of identity, it could threaten the protection of human rights and liberal democracy. We utilize the methodology of text analysis based on Hobbes’s original writing, Leviathan, and his other political treatises to explore his account on human rights and liberalism, and then employ Hobbes’s thoughts to investigate the phenomenon of populism. We divide the study into two sections, the first deals with the philosophy of human rights which Hobbes elucidates in the perspective of his hypothetical notion of the state of nature, the concept of authority, and his theory of liberalism; the second discusses populism in Indonesia today. The study found that the concept of human rights and liberalism would lead to awareness of mutual respect in society, while the populist movement becomes a real challenge to the implementation of human rights and the development of liberal democracy. The philosophy of human rights is in accordance with the political dynamism of Indonesian society. On the contrary, the populist movement could possibly plunge the country into a conflictual precipice of religious, racial-regional, and socio-political identities.

It is argued that Samuel Moyn’s critique of Tasioulas’s ‘Towards a Philosophy of Human Rights’ is undermined by an overly ambitious conception of the supposed goals of philosophical enquiry into human rights and by a serious misinterpretation of the nature of Tasioulas’s ‘orthodox’ theory of human rights as affirming that such rights apply timelessly. With these misconceptions set aside, it becomes clear that a philosophical theory of human rights, such as the orthodox account, can help us illuminate and evaluate the complex realities of contemporary human rights practice, such as the creation of a non-statist and non-legalist human rights framework through the UN’s Guiding Principles on Business and Human Rights.

Procurando fomentar uma jurisprudência doutrinal crítica na Filosofia dos Direitos Humanos, no presente ensaio discutimos alguns contributos de dois referentes maiores do pensamento crítico contemporâneo europeu: Ernst Bloch e Michel Foucault. O filósofo alemão destaca-se pela sua reflexão de vanguarda acerca do potencial emancipatório dos Direitos Humanos, derivada de uma análise de índole marxista heterodoxa sobre o direito natural. Já o filósofo francês foi o grande teorizador da «atitude crítica» contra-hegemónica e das «contra-condutas», perspetivando também neste sentido os Direitos Humanos. Arguimos destarte que ambos podem ser um apoio teórico não só para o revitalizar crítico desta jusfilosofia, mas ainda para a compreensão da tumultuosa (r)evolução dos Direitos Humanos nos últimos decénios.