BEST OF HUMAN RIGHT DOCUMENT

1. Human Rights - Overview
■ Human Rights.
1. Concept of Human Rights
2. Sources of Human Rights in Ancient and
Medieval Thought
3. Philosophy and Institutional Development of
Human Rights in European (Western) Modernity
4. Universality of Human Rights vs Human Rights
(cultural) Relativism

2. Philosophy of Human Rights
■ 1. Concept of Human Rights – basic elements
 „inherent“ rights – not awarded, but only recognized by
political authority
 „inalienable“ rights: can neither be alienated nor forfeited
 „fundamental“ rights – essential political, economic, social
and cultural conditions for a life in dignity
 equal: every human being has the same claim that these
conditions are legally protected
 „universal“ rights: valid for all mankind, under all cultural,
traditional, and social living conditions

3. Historical sources of Human Rights
■ 2. Philosophical and religious antecedents: Human Rights as
ethical principles
 Stoic philosophy – equality of all human beings
 Christianity – men/women created in the „image of god“
 Equality of all human beings in the eyes of God –
inalienable value of every human being
 Ethical principle with few legal and political consequences
(inequality still persisting, intolerance to adherents of
different religions, no basic rights, severe limitations on
individual freedom, priority of duties over rights)

4. Historical sources of Human Rights
■ 3. Transition to modernity: towards Human Rights as legal
guarantees:
 Institutional antecedents: Medieval concepts of liberties in
the feudal system (e.g. „Magna Charta” of 1215): rights as
privileges, but „Rights of Englishmen“ as predecessors of
individual basic rights, procedural guarantees (Parliament!)
 Rise of the modern state
- state becomes sovereign, decline of medieval feudal and
religious bonds
- decline of feudalism, citizens come to be equally directly
subordinated to the sovereign authority of the state
- call for individual rights

5. Historical sources of Human Rights
 Secularization and religious liberty
¬ Separation of church and state (religion and politics) as
a reaction to religious wars: a „western“ development
¬ Tolerance as a preliminary stage of religious liberty –the
sovereign is entitled to grant tolerance – he is also
entitled to withdraw protection to religious minorities at
his arbitrary will – no individual claim to tolerance
¬ Religious liberty and freedom of conscience as a legal
claim – lacking competence of state power in religious
affairs
¬ Religious liberty as first manifestation of human rights?

6. Historical sources of Human Rights
■ Natural Law doctrine and the autonomous individual in the Age
of Enlightenment
 Modern secular theories of natural law - detached from
religion - idea of equal liberty of every human being as a
rational individual – Grotius: natural law as a „dictate of right
reason“
 From natural law theory to natural rights theory:
predominance of the conception that liberty as an
inalienable human value – even voluntary renunciation (e.g
by contract) is invalid
 John Locke as chief exponent of natural rights theory

7. Historical Sources of Human Rights
 Locke’s concept of a „state of nature“
¬ „state of nature“ as a practical hypothesis to legitimate
political power
¬ Men and women are in a state of liberty and equality
¬ Liberty as the ability of human beings to determine their
actions
¬ Equality means that no one is by nature subjected to the
will or authority of another
¬ Life, liberty and property as fundamental legal principles
in the „state of nature“

8. Historical sources of Human Rights
 Transition from the „state of nature“ to the „civil state“
¬ Constituting a „body politick“ by „social contract“
¬ Mutual agreement to form a political community
¬ Individuals retain the natural rights of life, liberty and
property
¬ Government as „trustee“ of the people is obliged to
protect the natural rights of the individuals
¬ If government neglects these obligations, it forfeits its
legitimacy
¬ Citizen’s right of resistance (revolution)

9. Historical Sources of Human Rights
■ Influence of Locke’s Natural Rights Theory
 Virginia Bill of Rights (1776): „All men are by nature equally
free and independent and have certain inherent rights, of
which, when they enter into a state of society, they cannot
by any compact deprive or divest their posterity; namely the
enjoyment of life and liberty, with the means of acquiring an
possessing property and pursuing and obtaining happiness
and safety.“
 US Declaration of Independence (1776): „We hold these
truths to be self-evident – that all men are created equal,
that they are endowed by their Creator with certain
inalienable Rights; that among these are Life, Liberty and
the pursuit of Happiness.“

10. Historical sources of Human Rights
 French Declaration of the Rights of Man and of the Citizens
(1789)
Art 1: Men are born and remain free and equal in rights.
Social distinctions may be founded only upon the general
good.
2. The aim of all political association is the preservation of
the natural and imprescriptible rights of man. These rights
are liberty, property, security, and resistance to oppression.
 Also in the principal UN human rights documents
 Constitutions of numerous states

11. Modern Human Rights Theories
■ Rights Based on Natural Rights: Core Rights
 Revival of natural rights theory after World War II and the
experiences of singular atrocities under the Nazi regime
 Common theme: A “minimum absolute or core postulate of
any just and universal system of rights must include some
recognition of the value of individual freedom or autonomy”
 Omnipresence of Kant’s ethic – morality needs a categorical
foundation not a contingent one
 The basis is the individual as a subject capable of an
autonomous will
 Autonomy consistent with equal freedom of all

12. Human Dignity
■ Human dignity as basic normative principle of human rights
 Expresses an absolute intrinsic value of every human being
independent of any personal quality, age, race, gender,
physical abilities, religious commitments or moral orientation
 No grades of more or less dignity due to individual virtues
 Freedom (autonomy) as the central idea of dignity – concept
of responsible self-determination
 In Kantian perspective: every human being has to be
recognized as “end in itself”

13. Human Dignity
■ Immanuel Kant on human dignity (Groundwork of the
Metaphysic of Morals)
 “Categorical imperative”: “Act in such a way that you always
treat humanity, whether in your own person or in the person
of any other, never simply as a means, but always at the
same time as an end.”
 “In the kingdom of ends (practical reason) everything has
either a price or a dignity. If I has a price, something else
can be put in its place as an equivalent; if it is exalted above
all price and so admits no equivalent, then it has a dignity.
What is relative to universal human inclinations and needs
has a market price; what, even without presupposing a
need, accords with a taste … has a fancy price
(Affektionspreis); but that which

14. Human Dignity
constitutes the sole condition under which anything can be
an end in itself has not merely a relative value – that is, a
price – but has an intrinsic value – that is, dignity”
 Application of the “end in itself–formula” in the field of human
rights:
¬ Art. I 1 German Constitution: protection of inviolable
dignity
¬ “Object formula”: Human beings must not be treated as
“mere objects” – prohibiting human beings from being
objectified
¬ Examples: legitimacy of death penalty, of torture and
other means for the prevention of terrorism, of
imprisonment for life, etc.

15. Modern Human Rights Theories
 Dignity is related to personhood: Capacity to take
responsibility as a free and rational agent for one’s system
of ends (“autonomy”, personal freedom)
 Influence on international human rights norms – Art 1
UDHR: “All human beings are born free and equal in dignity.
They are endowed with reason and conscience and should
act toward another in a spirit of brotherhood”
 Crucial challenge: how to specify freedom in general laws
(freedom and equality)

16. Modern Human Rights Theories
■ Development of Rights based on reaction to historical
experiences of injustice:
 It is better to approach justice from its negative rather than
its affirmative side
 It is much easier to identify injustice from experience and
observation than it is to identify justice
■ Historical experiences in European modernity:
 arbitrary power of the modern state (monopoly of coercion)
 no assertion of one’s own rights through lack of participation
 exploitation through economic power in capitalism

17. ■ “Genealogy” of Human Rights (“Generations”)
 Claims against political authority to refrain
from arbitrary interferences with basic goods
(torture, Habeas Corpus, religious freedom,
freedom of speech etc.): negative status
 Fundamental basis for political legitimacy:
active status
 Principles to guarantee fundamental living
conditions (basic social needs, social
security, health, education): positive status
Generations (Dimensions, Types) of Human
Rights

18. Generations (Dimensions, Types) of Human
Rights
 Different historical responses according to the variety of
historical conditions
 No closed catalogue that transcends historical conditions an
developments
 Nevertheless, in the course of time elementary human rights
have been elaborated which we estimate as undeniable
achievements of legal history; no fallback behind standards
 Differentiation into the three aforementioned groups of rights
does not preclude further development
 Problem: Are claims for a just world order human rights
claims? (legal nature of rights of the “third generation”?)

19. Universality of HR vs Cultural Relativism
■ Tensions between universal claim of human rights and cultural
diversity – universality versus cultural relativity
 “Conceptual universality” (Donelly): Human rights “are
ordinarily understood to be rights that one has simply
because one is human”
 Cultural relativism
¬ Strong cultural relativism
¬ Weak cultural relativism

20. Universality of HR vs Cultural Relativism
■ Strong (radical) cultural relativism
 Culture is the principal source of the validity of a right ore
rule
 There are no “absolute values”
 Universalizing the concept of Human Right is illegitimate,
because it derives from a particular culture
 Human rights are not really universal but typical expressions
of western-occidental thinking and its specific historical,
cultural, civilizational and religious conditions
 Cultural imperialism – “colonialism in the guise of
humanism”

21. HR Universalism vs Relativism
■ critique of radical relativism
 universal presupposition of cultural relativism: Equal value
of all human cultures
 cultures can only derive their value from the fact that they
are products of human beings
 Equal value of cultures cultures/societies can only be
derived from the individual human beings who make up
those different cultures
 right of “peoples” (societies) to cultural self-determination
can only be derived from equal value (dignity) of all humans
belonging to these societies
 Implies especially political freedoms related to the right to
cultural self-determination

22. Universality of HR vs Cultural Relativsim
■ Weak cultural relativism of Human Rights
 common notion of human rights, but equal validity of any
particular reading of human rights (Islamic Human Rights,
Christian Orthodox doctrine of Human rights, “Asian values”
in Human Rights etc.)
 Question: what makes of all these different doctrines human
rights doctrines? (quest for a common denominator of the
concept of human rights)

23. Islam and Human Rights
■ Islamic and Christian conceptions of human rights
 Qur’an as source of human rights
 Efforts to ground human rights on a religious basis –
“Islamising” the notion of human rights
 Preamble to the Islamic Council’s Universal Islamic
Declaration of Human Rights (1981): “Islam gave to
mankind an ideal code of human rights fourteen centuries
ago. These rights aim at conferring honour and dignity on
mankind and eliminating exploitation, oppression and
injustice. Human rights in Islam are firmly rooted in the belief
that God, and God alone, is the Law Giver and the Source
of all human rights. Due to their Divine origin,

24. Islam and Human Rights
no ruler, government, assembly or authority can curtail
or violate in any way the human rights conferred by God,
nor can they be surrendered.”
 Christian Traditions:
 Dignity of human person consists in the re-establishment
of his/her original “sanctity”. Can be realized to varying
degrees.
 Full legal recognition of rights deriving from human dignity
depend on the virtuousness of the person or the
moral/religious dignity of the respective behaviour
 Catholic Church before Vatican Council II: “Error can have
no right”

25.  Commonalities: Rights and duties
 Rights are interpreted as legally protected spaces for
behaviour in fulfilment of (or in conformity with) duties
 Priority of duties over rights is a peculiar characteristic
of premodern concepts of law (comparable to European
history)
 If rights conflict with the respective duties of the same
person, the demand for their legal protection is
considered as illegitimate

26. Universality of HR vs Cultural Relativism
■ Human Rights relativism also implies critique of Western HR
 Western HR reflect Individualistic-atomistic image of the
human being and of the society
 Western understanding of freedom is seen as a synonym of
the arbitrariness of unencumbered individuals (coincides
with communitarian critique of liberal rights individualism:
Michael Sandel against John Rawls)
 Existential threat to grown social structures that rely on
group solidarity (cf. also communitarianism)
 As a critique of a specific (i.e. “Western”) Human Rights
conception, this critique presupposes a common normative
standard for a “better” understanding of Human Rights

27. Universality of HR vs Cultural Relataivism
■ Especially Islamic criticism of “western” human rights
 Illegitimate change of paradigms from “theocentrism” to
“anthropocentrism”
 Guarantees of religious freedom and the religious and ethical
neutrality of the state would foster agnosticism, lead to
religious indifference and inimical displacement of religion from
the public, thrust aside the religious quest for truth and neglect
divine law
 Tendencies to identify human rights and western life-style

28. Universality of HR vs Cultural Relativism
■ Responses to relativist critique:
 necessity to differentiate between two determinants of
human rights: those pertaining to the context of discovery
and those pertaining to the context of legitimacy
 context of discovery – the historical genesis of human rights
is indeed particular – result of the European and North
American history
¬ they are not a product of a linear, humanitarian history of
progress
¬ they are partly a result, but partly also a “counterpoint to
modernity” – as reactions against exemplary
experiences of supression and and injustice

29. ¬ incisive events: religious civil wars in Europe, rise of the
territorial state of modern times with its monopoly of
power and its potentials of threat and violence
 Context of legitimacy
¬ Good reasons to detach human rights from the particular
conditions of their origin and to accord them a universal
value
¬ Human rights as an answer to experiences of suffering
and pain shouldn’t be identified with western life style as
such
Universality of HR vs Cultural Relativism

30. ¬ In the course of the particularistic genesis general
normative principles were articulated that concern the
protection of elementary human goods
¬ Human rights claims reach beyond their historical point
of origin. Examples:
- internally: In the US, civil rights originally asserted
against British Rule have been implemented to
overcome slavery and racial segregation
- internationally: European idea of natural rights as basis
of political legitimacy have helped to overcome
colonialism
Universality of HR vs Cultural Relativism

31. ¬ Global spreading of the modern national state as a trans-
cultural phenomenon
¬ Characterised by an enormous potential of threat
(bureaucracy, police, army, secret services, modern
systems of communication etc.)
¬ Threats of modern state are globally similar: torture,
arbitrary police detention, suppression of political
communication
¬ Contradictory to adopt these factors of global modernity
without adopting human rights at the same time by
dismissing them as imperialistic: Selective acceptance of a
divided modernity
Universality of HR vs Cultural Relativism

32. ¬ Reference to the necessity of preserving cultural or
religious identity very often seems to blind out massive
violations of human rights without having developed an
alternative legal instrument of protection
¬ Human Rights do not endorse unethical conduct, but
only put up with it as the price for protecting individual
autonomy, insofar as it is compatible with the equal
freedom of everybody else
¬ Issue of distinguishing between the “right” and the
“good”, because in the “good” must not be imposed by
political authority
Universality of HR vs Cultural Relativism

33. - Cultural differences might still provide different answers even to
similar experiences and threats: Question of legitimate cultural
specificities and differences in the conception of Human Rights.
- Central Question: What makes of a particular religious or
traditional doctrine of human society a particular Human Rights
doctrine?
- Measuring against (minimum) standards proves unworkable.
- Emancipatory understanding of any particular ethical and
religious tradition as a universal criterion.
- Enables global Human Rights dialogue for the constant
refinement of the global Bill of Human Rights
- Cf. “reiterative universalism” (M. Walzer)
Universality of HR vs Cultural Relativism

34. Universality of HR vs Cultural Relativism
■ Examples:
 Reformist Islamic Theology:
- freedom of religion, no death penalty for apostasy
- Sharia arguments for women‘s rights
 Acceptance of freedom of religion and opinion by the
Catholic Church in Vatican Council II

35. Universality of Human Rights
■ Conclusions
 Due to existing cultural differences it is hardly possible to
reach a comprehensive consensus on all imaginable
demands of human rights
 Greatest obstacle: solution to the problem of religious liberty
 Separation of powers and the existence of a functioning and
autonomous judiciary as prerequisites that cannot be
disposed without nullifying the postulates of human rights
 Minimal consensus of basic rights as a persistent challenge