Human Rights and Philosophy

32 The man on the Clapham omnibus From Wikipedia , the free encyclopedia An historical Brixton to Clapham horse-drawn bus on display at London Bus Museum. The man on the Clapham omnibus is a hypothetical ordinary and reasonable person, used by the courts in English law where it is necessary to decide whether a party has acted as a reasonable person would--for example, in a civil action for negligence. The man on the Clapham omnibus is a reasonably educated, intelligent but nondescript person, against whom the defendant's conduct can be measured. The term was introduced into English law during the Victorian era, and is still an important concept in British law. It is also used in other Commonwealth common law jurisdictions, sometimes with suitable modifications to the phrase as an aid to local comprehension. The route of the original "Clapham omnibus" is unknown but London Buses route 88 was briefly branded as "the Clapham Omnibus" in the 1990s and is som

28 Donnelly on Concept vs Conception of Human Rights Jack Donnelly, Universal Human Rights in Theory and Practice, Second Edition (Cornell University Press, 2003) 2. Interpretation vs Substance “The Universal Declaration generally formulates rights at the level of what I will call the concept, an abstract general statement of an orienting value. ‘Everyone has the right to work, to free choice of employment, to just and favorable conditions of work, and to protection against unemployment’ (Art. 23). Only at this level do I claim that there is a consensus on the right of the Universal Declaration, and at this level, most appeals to cultural relativism fail” ( Universal Human Rights in Theory and Practice , Second Edition, p. 94). When Donnelly talked to Iranians and asked them “Which rights in the Universal Declaration ... does your society or culture reject?” he says they accepted the concept of freedom of religion, but disagreed with particular conceptions of freedom of reli

29 Donnelly on Misunderstanding Culture Jack Donnelly, Universal Human Rights in Theory and Practice , Third Edition (Cornell University Press, 2013) “Consider the common claim that Asian societies are communitarian and consensual whereas Western societies are individualistic and competitive. What exactly is this supposed to explain? . . .  Culture does much less explanatory work than most relativists suggest–at least that the ‘culture’ in question is more local or national than regional or a matter of civilization” (97). “Substantive cultural relativism risks reducing ‘right’ to ‘traditional.’ ‘Good’ to ‘old,’ and ‘obligatory’ to ‘habitual.’ Few societies or individuals, however, believe that their values are binding simply or even principally because they happen to be widely endorsed within their culture” (109). “Cultural relativism is particularly problematic when it presents culture as coherent, homogeneous, consensual, and static. In fact, though, differences within cultur

31 Donnelly on the More Recent History of Human Rights Jack Donnelly, Universal Human Rights in Theory and Practice , Third Edition (Cornell University Press, 2013) 4. The American and French Revolutions The transformation from ‘traditional’ hierarchical polities to ‘modern,’ egalitarian, rights-based polities was neither rapid nor easy. Three centuries separate the Peace of Westphalia from the Universal Declaration of Human Rights, during which prolonged, intense, and often violent political struggles were required to expand both the substance and the subjects of ‘natural rights.’ Consider the American and French Revolutions. These eighteenth-century revolutions were in many ways quite distant from their seventeenth-century English predecessor. This is particularly clear in a comparison between the 1689 English Bill of Rights and the 1776 and 1789 American and French Declarations. The English Bill begins with “the Lords Spiritual and Temporal and Commons assembled at Westmi

30 The Modern Invention of Human Rights Jack Donnelly, Universal Human Rights in Theory and Practice , Third Edition (Cornell University Press, 2013) Question: Why did the idea of human rights arise in the West? 3. The Modern Invention of Human Rights What in “modernity” led to the development of human rights? In a gross (but I hope insightful) oversimplification, I want to suggest that modern states and modern markets triggered social processes and struggles that eventually [87] transformed hierarchical polities of rulers and subjects into more egalitarian polities of offi ce holders and citizens. [8] To reduce three centuries to a few paragraphs, ever more powerful capitalist markets and sovereign, bureaucratic states gradually penetrated first Europe and then the globe. In the process, “traditional” communities, and their systems of mutual support and obligation, were disrupted, destroyed, or radically transformed, typically with traumatic consequences. These changes creat

29   Donnelly on Misunderstanding Culture Jack Donnelly, Universal Human Rights in Theory and Practice , Third Edition (Cornell University Press, 2013) “Consider the common claim that Asian societies are communitarian and consensual whereas Western societies are individualistic and competitive. What exactly is this supposed to explain? . . .  Culture does much less explanatory work than most relativists suggest–at least that the ‘culture’ in question is more local or national than regional or a matter of civilization” (97). “Substantive cultural relativism risks reducing ‘right’ to ‘traditional.’ ‘Good’ to ‘old,’ and ‘obligatory’ to ‘habitual.’ Few societies or individuals, however, believe that their values are binding simply or even princiapply because they happen to be widely endorsed within their culture” (109). “Cultural relativism is particularly problematic when it presents culture as coherent, homogeneous, consensual, and static. In fact, though, differences within cult

Donnelly on China and Rights Jack Donnelly, Universal Human Rights in Theory and Practice, Third Edition (Cornell University Press, 2013) 4. Twentieth-Century Encounters with “Rights” Let us jump now to the late nineteenth century. China, although still under imperial rule, was increasingly burdened by an increasingly oppressive and demeaning series of “unequal treaties” that restricted (but did not extinguish) Chinese sovereignty and granted punishing economic, military, political, and religious privileges to the Western powers. The state was nearing collapse. Chinese officials, intellectuals, and citizens largely across the political spectrum were grappling with the meaning of this degradation of China and a wide variety of possible remedies. One powerful strand of reformist thought traced Chinese decline to the backward-looking rigidities of Confucianism. (Scholar-bureaucrats trained primarily in the classics still dominated the civil service.) In the eyes of these modernist

26 Donnelly on Human Rights and Asian Values Jack Donnelly, Universal Human Rights in Theory and Practice, Third Edition (Cornell University Press, 2013) 5. Human Rights and Asian Values Asian values are not frozen in an ancient past. They are no less dynamic than Western values–or values anywhere else in the modern world. We must be particularly careful not to confuse what people can be forced to acquiesce to with what they value. It is possible that forms of politics that differ substantially from Western liberal democracy will be chosen freely by Asian peoples. I am skeptical, and  certainly we have seen nothing like that yet. Singapore, which has evolved into a surprisingly liberal semi-democracy, is perhaps closest to a stable viable alternative, but the gap   between Singaporean and Western practices is rather rapidly declining. Japan, South Korea, Taiwan, and Hong Kong strongly suggest that where Asians are freely given the choice, they choose human rights no less than t

25  Rashdall Does the Anthropologists One Better (or Worse) J eremy Waldron, “Dignity, Rank, and Rights,” The Tanner Lectures on Human Values (2009) “In 1907, the Clarendon Press at Oxford published the following in a two volume treatise on moral philosophy by the Reverend Hastings Rashdall, concerning trade-offs between high culture and the amelioration of social and economic conditions:      It is becoming tolerably obvious at the present day that all improvement in the social condition of       the higher races of mankind postulates the exclusion of competition with the lower races. That             means that, sooner or later, the lower Well-being--it may be  ultimately the very existence--of             countless Chinamen or negroes must be sacrificed that a higher life may be possible for a much           smaller number of white men. [ 140 ] That is what passed for moral philosophy at Oxford a few generations ago. As far as I can tell there is nothing ironic in Rashdall’

24  Donnelly on Slavery in Saudi Arabia Jack Donnelly, Universal Human Rights in Theory and Practice , Third Edition (Cornell University Press, 2013) To intervene or not to intervene, that is the question. “Suppose that in contemporary Saudi Arabia a group were to emerge arguing that because slavery was accepted in the early Muslim world it should be reinstituted in contemporary Saudi Arabia. I am certain that most Saudis, from the most learned clerics to the most ordinary citizens, would reject this view. How, though, should this group be dealt with? So long as these fundamentalists do not attempt to practice slavery, dialogue--including harsh criticism by both Saudis and foreigners--seems to [115] me the appropriate route. Those in the majority have, I think, a moral obligation to use the most forceful possible terms. Nonetheless, freedom of belief and speech requires the majority to tolerate these views, in the minimal sense of not imposing legal liabilities on those who h

20 BASIC NEEDS and a MINIMALLY GOOD LIFE In reading Allen Buchanan’s book about the Status Egalitarian Function, I am reminded of what Adam Smith wrote in The Wealth of Nations (Book V, Chapter II, Part II, Article IV): “By necessaries I understand not only the commodities which are indispensably necessary for the support of life, but whatever the custom of the country renders it indecent for creditable people, even of the lowest order, to be without. A linen shirt, for example, is, strictly speaking, not a necessary of life. The Greeks and Romans lived, I suppose, very comfortably though they had no linen. But in the present times, through the greater part of Europe, a creditable day-labourer would be ashamed to appear in public without a linen shirt, the want of which would be supposed to denote that disgraceful degree of poverty which, it is presumed, nobody can well fall into without extreme bad conduct. Custom, in the same manner, has rendered leather shoes a necessary of li

23 Jeremy Waldron, “Dignity, Rank, and Rights,”  Tanner Lectures on Human Values (2009) 6. Coercion “Maybe the dignitarian account that I am giving makes law seem too “nice”; maybe I am obscuring the violent and coercive character of law.[121] Law kills people; it locks them up and throws away the key. And these are not aberrations; this is what law characteristically does. Where, it might be asked, is the dignity in that? Some have worried that “the entire enterprise, central to the criminal law, of regulating conduct through deterrence (that is, through the issuance of threats of deprivation and violence) is at odds with human dignity.” [122] According to Lon Fuller, we have to choose between definitions of law that emphasize coercion and definitions of law that emphasize dignity.[123] I think this is a mistake. It is because law is coercive and its currency is life and death, freedom and incarceration, that its pervasive commitment to dignity is so momentous. Law is the exe

22 Jeremy Waldron, “Dignity, Rank, and Rights,”  Tanner Lectures on Human Values  (2009) In his book The Morality of Law , [Lon] Fuller developed an account of what he called the inner morality of law--the formal principles of generality, prospectivity, clarity, stability, consistency, whose observance is bound up with the basics of legal craftsmanship.[96] Legal positivists have sometimes expressed bewilderment as to why Fuller called these internal principles a “morality.”[97]  He did so because he thought his eight principles had inherent moral significance. It was not only that he believed that observing them made it much more difficult to do substantive injustice, though this he did believe. It was also because he thought observing the principles he [237] identified was itself a way of respecting human dignity: “To embark on the enterprise of subjecting human conduct to rules involves ...a commitment to the view that man is ...a responsible agent, capable of understanding and

“LAWYERS AS UPHOLDERS OF HUMAN DIGNITY (WHEN THEY AREN’T BUSY ASSAULTING IT)” UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2005 David Luban (Georgetown Law School) [817] It seems to me that all these efforts fail because they try to zero in on some metaphysical property of humans that makes us the crown of creation, the paramount mortal links in the Great Chain of Being. I suspect that human dignity is not a metaphysical property of individual humans, but rather a property of relationships between humans—between, so to speak, the dignifier and the dignified. To put it another way, human dignity designates a way of being human, not a property of being human. It may even be the name of more than one way of being human. But that is jumping the gun. At this point, I want to approach the question of defining human dignity modestly and inductively by looking at several examples of arguments that claim to connect what lawyers do with the defense of human dignity. Admittedly, there is

19  Killing in Self-Defense Here is what I should have said in class today when Mr. Boltz said that, e.g., jailing people who have been properly convicted of a crime violates their right to liberty, but is justified. Or that when Tom kills Dick who is trying to kill Harry (and Harry’s infant son Archie), Tom violates Dick’s right not to be killed, but since it is in self-defense (or, in this case, other-defense), it is justified. I think that is not the right way to think about these cases. If an action is (morally) wrong, then it cannot be (morally) justified. It is possible that the person who acts wrongly is not culpable (blameworthy), but that is different from saying the action is justified. It is possible that the person has an excuse for acting wrongly. Typical excuses include: ignorance and duress. But if the action is not wrong, then no excuse is needed. If you believe in the (moral) right of self-defense, and if you believe that sometimes it is morally justified to kill