Human Rights, Natural Rights, and Europe's Imperial Legacy

Critics of the “New” Natural Law (NNL) theory have raised questions about the role of the divine in that theory. This paper considers that role in regard to its account of human rights: can the NNL account of human rights be sustained without a more or less explicit advertence to “the question of God’s existence or nature or will”? It might seem that Finnis’s “elaborate sketch” includes a full theory of human rights even prior to the introduction of his reflections on the divine in the concluding chapter of Natural Law and Natural Rights. But in this essay, I argue that an adequate account of human rights cannot, in fact, be sustained without some role for God’s creative activity in two dimensions, the ontological and the motivational. These dimensions must be distinguished from the epistemological dimension of human rights, that is, the question of whether epistemological access to truths about human rights is possible without reference to God’s existence, nature, or will. The NNL view is that such access is possible. However, I will argue, the epistemological cannot be entirely cabined off from the relevant ontological and motivational issues and the NNL framework can accommodate this fact without difficulty.

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Rights

10.1093/oxfordhb/9780199238804.003.0030 ◽

2011 ◽

Author(s):

Kenneth Pennington

Keyword(s):

Human Rights ◽

Natural Law ◽

Natural Rights ◽

Legal Positivism ◽

Individual Rights ◽

Legal Systems ◽

Human Beings ◽

Group Rights ◽

Constitutional Jurisprudence ◽

Theological Thought

One of the most notable characteristics of Western societies has been the development of individual and group rights in legal, theological, and philosophical thought of the first two millennia. It has often been noted that thinkers in Non-Western societies have not had the same preoccupation with rights. The very concept of rights is laden with numerous problems. Universality is the most basic and difficult. If human rights are only a product of Western ideas of justice, they cannot have universality. In an age that is dominated by conceptions of law embracing some form of legal positivism, many scholars recognize only individual rights that have been established by the constitutional jurisprudence of individual countries or their legal systems. Historically, the emergence of rights in European jurisprudence is intimately connected with the terms ius naturale and lex naturalis in Western jurisprudence and theological thought. Human beings may never agree on universal rules of a natural law, but they might agree on universal precepts that shape the penumbra of rights surrounding natural rights.

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Translating Rights

Reified Life ◽

10.5422/fordham/9780823280308.003.0006 ◽

2018 ◽

pp. 148-174

Author(s):

J. Paul Narkunas

Keyword(s):

Human Rights ◽

International Criminal Court ◽

Power Relations ◽

International Criminal ◽

Criminal Court ◽

Natural Rights ◽

Political Aesthetics ◽

The Creation

This chapter describes how English and French as the de jure languages of human rights at the International Criminal Court. As a result, populations who do not adhere to Western Enlightenment notions of rights can be declared terrorists or “enemies of humankind.” By tracing the workings of translation in the ICC through the Thomas Lubanga trial, the author discusses how translation can deny human status to those brought before the ICC. It also provides, however, the means to challenge the legitimacy of the court as merely another sign of universalizing western justice, solidified by the fact that all people brought before the ICC come from the continent of Africa. By focusing on how language produces reality, the creation of natural rights claims allow for new forms of political protection in the chasm between differing legal orders. Consequently, thinking the role of translation as metaphor and practice for world making and the production of agency is an inchoate form of political aesthetics. Translation may offer, thus, a way to reconceive the human and its attendant rights due to language’s role in world making, subject production, and power relations. This indicates a form of ahuman agency.

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The Individual’s Place in the Grounding of her Rights

Human Rights, Ownership, and the Individual ◽

10.1093/oso/9780198793366.003.0008 ◽

2019 ◽

pp. 118-135

Author(s):

Rowan Cruft

Keyword(s):

Human Rights ◽

Natural Rights ◽

The Right

Chapter 8 develops a taxonomy of the differing degrees and manner in which a right might be grounded on its holder’s good—and, in the author’s terms, exist ‘for its holder’s sake’. This is a taxonomy of the extent to which a right’s status as a right, and a duty’s status as a directed duty whose violation wrongs someone, are pre-institutional or ‘natural’. The chapter explores the important question of whether non-individualistic, communitarian moral views can accommodate this idea of ‘natural’ rights grounded by their holder’s good. It turns out that while many communitarian approaches are compatible with the idea, it is inconsistent with those communitarians who deny the very possibility of distinguishing one party’s good from the wider good. The chapter ends by sketching the appeal of taking human rights as grounded ultimately on ‘natural’ rights that exist for the right-holder’s sake.

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What’s Wrong with (Some) Judges? Al-Skeini, Al-Jedda, Smith, and the Fog of War

What's Wrong with Rights? ◽

10.1093/oso/9780198861973.003.0011 ◽

2020 ◽

pp. 234-267

Author(s):

Nigel Biggar

Keyword(s):

Human Rights ◽

Natural Rights ◽

Fragile States ◽

Military Effectiveness ◽

International Treaties ◽

The United Kingdom ◽

European Court ◽

The Supreme Court ◽

Political Conditions ◽

The Military

What is wrong with rights might lie in several places. Some accuse the very concept of a right belonging to an individual as a kind of property. Chapter 6 considered this charge and found it wanting. Instead, Chapters 5, 7, 8 and 9 identified problems in misleading connotations of talk about ‘natural rights’, the failure to reckon with the contingency of rights upon economic and political conditions, and the importation of what is paradigmatically a legal idea into ethical deliberation. An additional possibility is that problems lie not only in concepts of rights, but also in the way in which judges treat them. This is the topic of this chapter and the following one. The present chapter examines recent decisions of the European Court of Human Rights (Al-Skeini [2011], Al-Jedda [2011]), and the Supreme Court of the United Kingdom (Smith [2013]), which threaten the UK’s military power. It concludes that, in these cases, the jurisprudence of the European court is vitiated by an imprudence born of a limited historical and political imagination, a culture of risk-aversion, and an ideological rights-fundamentalism. Such imprudent jurisprudence serves to weaken the military effectiveness of European States Party and their ability to support politically fragile states, to undermine states’ confidence in international treaties, and to provoke calls for states’ withdrawal from the Convention altogether.

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Human Rights as Natural Rights: The Quest for Theoretical Grounding

Human Rights, Race, and Resistance in Africa and the African Diaspora ◽

10.4324/9781315543819-8 ◽

2016 ◽

pp. 29-43

Keyword(s):

Human Rights ◽

Natural Rights

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Human rights

Routledge Encyclopedia of Philosophy ◽

10.4324/9780415249126-s105-1 ◽

2018 ◽

Author(s):

Peter Jones

Keyword(s):

Human Rights ◽

Cultural Difference ◽

Legal Status ◽

Natural Rights ◽

Moral Rights ◽

General Idea ◽

Human Beings ◽

Special Position ◽

Domestic Law ◽

In Virtue Of

Human rights are rights ascribed to human beings simply as human beings. While people may possess some rights only if they occupy a special position or role, such as citizen, doctor or promisee, the claim of human rights theory is that there are other rights that everyone possesses merely in virtue of being human. Historically, the idea of human rights is closely associated with that of natural rights and both of these sorts of right have been conceived, in the first instance, as moral rights. However, since the United Nations promulgated the Universal Declaration of Human Rights (UDHR) in 1948, human rights have been elaborated and provided for in a host of international declarations and conventions and in the domestic law of many states, so that human rights now frequently have a legal or quasi-legal status. The general idea of human rights has been very widely accepted, but there is disagreement over which rights are human rights, over how these rights should be justified, and over their absolute or defeasible status. The difficulty of combining the universality of human rights with respect for cultural difference is also a major preoccupation of both proponents and critics of human rights.

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