Theories of Human Rights

Academia Letters, 2021

Western Cape Do Human Rights have foundational validity independent of municipal law? The modern doctrine of human rights has been the subject of some controversy, especially after WWII. Much debate surrounds the basic justification of human rights, but also about precisely what rights are human rights, which ones are fundamental, universal, and which are merely cultural and contingent. In discussing universal human rights (UHR) one cannot avoid discussing the concept of "natural law," and the "law of nature," the historical forerunners of UHR. Human rights cannot be universal in any fundamental sense unless we accept that there are universal norms. Manent writes that "we cannot speak of human rights without referring implicitly but directly and concretely to "nature." (Manent, 2020, p. 8) The concept of universal norms appeared in ancient times but were fully explored by Cicero and later by Thomas Aquinas. Natural law has traditionally been seen as a higher law, a universal law moral that transcends and trumps municipal law. It is said to exist beyond the realm of positive law and is a benchmark against which the justness of positive laws can be judged. Augustine of Hippo stated, in short, that unjust laws are not laws at all.[1] In premodern times natural law theories held that the whole world of human affairs are regulated by natural law, i.e., "binding moral laws that supply normative constraints on states whether or not these dictates are incorporated into any system of positive Law." (Nussbaum, 2004) This view basically follows the Aristotelian understanding of human beings as an integral "part of a comprehensive natural order." (Deneen, 2018). This was endorsed by early Christian philosophers who further developed the concept of human freedom as "freedom under law." The Christian contention is the biblical one that sees the genesis of humanity taking place under law and, obedient or disobedient to it, they remain under the law. The ancient hypothesis then was that the apotheosis of human freedom is reached when

2020

This review paper investigates the philosophical cum political genesis of the concept of universal rights in the modern era through the examination of the conceptualization of the universal rights in de Vitoria, Grotius, Hobbes, Locke. The main goal is to explain to what extent their conceptions of universal rights are biased by their society of origin and particular interests at stake (in this case, those of the Euro-peans). That is the reason why, the supposed contribution of this paper is to understand how the current conceptualization of rights carries the legacy of these asymmetric features and, accordingly, to reshape the current conceptualization of (human) rights in order to make them truly universal and, thus, detachable from any particular philosophical traditions and local ethical views.