Presentation on theme: "Master Theory and Practice of Human Rights 16.9.2014 Oslo C.Corradetti."— Presentation transcript:
Master Theory and Practice of Human Rights Oslo C.Corradetti
Question Why do we need a philosophy of human rights?
What are human rights? States Constraints Enabling conditions Minimum Guarantees....
Where do human rights come from? God Natural Law theories Experiences of Wrongs: threats from the modern state, experience of injustices (see Nickel, p.71) Question: can we agree on wrongs in the absence of an agreement on «the good and the right?»
Are Human Rights Descriptive or Normative? Universal Declaration of Human Rights Art.1 «All human beings are born free and equal in dignity and rights» Is this a descriptive or a normative statement?
Are Human Rights Descriptive or Normative? The concept of Human Rights is problematic since there is no overall agreement on the criteria connected to valid uses of the term. Should we just dismiss the term?
Are Human Rights Descriptive or Normative?...Not necessarily since it can be distinguished: -an intenSional aspect: i.e. «human rights are rights that we have simply in virtue of being human» -an extenSional aspect: all the documents connected with human rights issues, i.e. French Declaration, UN Declaration etc.
Are Human Rights Descriptive or Normative? Nickel (2013) : «human rights are the rights of lawyers not of philosophers» (p.1) What does it mean and what justifies human rights laws ? Nickel «three levels of analysis» (p.3):
Are Human Rights Descriptive or Normative? 1 first level (normative): A philosophical account of human rights! Possible candidates: humanity, dignity, equality, liberty etc... 2 second level (normative and descriptive/intensional and extensional) norms following these basic accounts and showing to be «universal» 3 third level (descriptive) measures to defend universal norms
Foundations of Human Rights Two ways of interpreting the normativity of human rights: 1) Kantian-deontological human rights have a value independently from the promotion of its ends: i.e. making life good. No- trade-off with other goods in life!
Foundations of Human Rights 2) Consequentialist: i.e. Utilitarianism maximization of total happiness, ergo trade among different goods according to maximization of total happiness
Utilitarianism: Principle of (Total or Average) Happiness as Principle of Law (and Justice): Total Happiness/Utility: maximization of the total utility by adding individual utilities Case 1 x2, y6,z4 = tot. 12 preferable to x4, y, 4, z3 = tot.11 Average Happiness/Utility: maximization of average utility x4,y4,z4 = tot. 12 preferable to x10,y2, z1= tot.13
Foundations of Human Rights One property of Human Rights: Directionality! Teleology of rights: promotion of human rights admitting also balancing (not trade-off) for accomplishment of goods in life. Not to be confused with consequentialism or utilitarianism!
Foundations of Human Rights Confront the directionality of rights with Nickel’s discussion of human rights as goals (p.24) Rights cannot be reduced to goals («the mandatory character is missing»), but their potential conflict should be arranged in a teleological/goal oriented way
Are Human Rights Descriptive or Normative? Whichever approach is chosen...problems remain with the intensional «indeterminateness» of human rights Therefore One needs to articulate a philosophical argument to specify this indeterminateness and add a content.
Why a Philosophy of human rights? Let’s see one example of an intensional articulation: Nickel’s pluralist thesis: the 4-claim framework - A secure claim to have a life - A secure claim to lead one’s life - A secure claim against severely cruel or degrading treatement - A secure claim against severely unfair treatement
Why a Philosophy of Human Rights? A secure claim to have life -negative duties not to harm, use violence etc. Generally as «freedom from violence» A secure claim to lead one’s life -protection of agency, freedom from slavery, servitude etc. A secure claim against cruel and degrading treatment - this is highly depeneding on the circumstances
Why a Philosophy of Human Rights? A secure claim against severely unfair treatement -i.e. Duty not to imprison innocents etc. ALL 4 protects the notion of Dignity! Un.Decl.«inherent dignity...»
Why a Philosophy of Human Rights A second example: Griffin’s proposal Human Rights are universal simply because they are possessed by human agents in virtue of their normative agency, but this condition gets specified within a society.
Why a Philosophy of Human Rights Human rights as protections of our personhood -normative agency: «To be an agent..one must (first) choose one’s own path through life…‘autonomy’. And(second)...one must have at least the minimum provision of resources and capabilities (‘minimum provision’)»…so (third) others must also not forcibly stop one from pursuing what one sees as a worthwhile life (call this ‘liberty’)»
Why a Philosophy of Human Rights First Step of Griffin’s Proposal: Persohood as a ground for Human Rights Argument: First Step: personhood as autonomy «Kant thought that one would be autonomous only if one’s actions came from a purely rational, intentional centre..the noumenal self…But rationality requires thought; thought…requires language; and language is a cultural artefact etc.»
Why a Philosophy of Human Rights Second Step: personhood as non-abstract autonomy «Our aim must be the more modest one of understanding ….the autonomy of Homo sapiens. So by the word ‘human’ in the phrase ‘’human rights’ we should mean, roughly, a functioning human agent. And human rights cannot therefore be entirely ahistorical»(p.35)
Why a Philosophy of Human Rights Problem: violation of Hume’s is-ought law (Hume, A Treatise of Human Nature, book III, part I sec.I, 1739): Descriptive statements «x is y» are inherently different from normative/prescriptive statements «x ought to be y (act, behave etc.)»
Why a Philosophy of Human Rights No identification of moral properties with natural properties. i.e. from the fact that it rains it does not follow that it ought to rain! Or in the case of human rights: given a certain description of human beings you cannot derive certain human rights!
Why a Philosophy of Human Rights Griffin’s strategy: the solution is to advance a non-naturalistic (not based on natural sciences) notion of «human nature, agents» ! «I single out functioning human agents via notions such as their autonomy and liberty…they are expecially important interests that rights can be derived from them…»(p.35)
Why a Philosophy of Human Rights Therefore: «So my notions of ‘human nature’ and ‘human agent’ are already well within the normative circle, and there is no obvious fallacy in deriving rights from notions as evaluatively rich as they are» (p.35)
Why a Philosophy of Human Rights i.e. If I say «I’m in pain» I make both a descriptive and an evaluative statement The universality of human rights (and their derivation from this starting point) is saved!
Agency in J.Griffin On Human Rights, OUP 2008 The Three Components of Normative Agency/Personhood Autonomy Liberty Welfare
Agency in J.Griffin On Human Rights, OUP 2008 Autonomy: is concept involved in forming the conception of a worthwhile life. It refers to the independence of the subject for moral reasoning. It must not be confused with liberty!
Agency in J.Griffin On Human Rights, OUP 2008 Liberty: it guarantees the pursuit of a worthy life not its realization! It is constructed on two conditions: positive duties («duty to do something») and negative duties («duty to refrain from doing something») It is defined by Griffin in Kantian terms: my liberty must be compatible with equal liberty of all. Suggestion! Read I.Berlin «Two Concepts of Liberty» available online at:
Agency in J.Griffin On Human Rights, OUP 2008 Welfare: there seem to be a strict co-dependence between liberty rights and welfare rights (indivisibility), but Griffin says that this is too weak! One should not defend only an empirical necessity but also a logical necessity! Normative agency requires the fulfilment of basic material conditions.
The Problem of Rights Two types of conflicts: 1)conflicts between human rights 2)conflicts between a human right and welfare (i.e.redistribution of goods infringing my liberty) How to solve them?
The Problem of Rights For Griffin these solutions require trade-offs ! Therefore in Griffin’s theory human rights are not absolute. Teleological approach weighting rights in view of the promotion of the notion of personhood (3 components) – evaluation of loss/gain in personhood (major/minor liberties affecting differently the notion of personhood)
The Problem of Rights Whose Rights? Who is NOT included in the category of normative agents as defined by Griffin through «personhood/agency»? «Human infants are not normative agents. Neither are human foetuses, nor the severely mentally handiccapped, nor sufferers from advanced dementia»p.83 Ergo: for Griffin they don’t have human rights…! Let’s explain (next time).