The Morality of Human Rights
by Michael J. Perry
Abstract
The Universal Declaration of Human Rights embodies a particular morality: the morality of human rights. In this article, I address several questions concerning that morality, beginning with this fundamental question: What reason do we have, if any, to accept, rather than reject, the morality of human rights? I also explicate two human rights—the human right to moral equality and the human right to moral freedom—and then pursue the implications of the two rights for two human rights controversies: the controversies concerning, respectively, abortion and same-sex marriage.
"As I see it, one important intellectual advance made in our century is the . . . growing willingness to neglect the question 'What is our nature?' and to substitute the question “What can we make of ourselves?” . . . We are coming to think of ourselves as the flexible, protean, self-shaping animal rather than as the rational animal or the cruel animal. . . . If we can work together, we can make ourselves into whatever we are clever and courageous enough to imagine ourselves becoming. This sets aside Kant’s question 'What is man?' and substitutes the question “What sort of world can we prepare for our great-grandchildren?”
—Richard Rorty, Human Rights, Rationality, and Sentimentality, in On Human Rights: The Oxford Amnesty Lectures 1993
The Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations on 10 December 1948, embodies a particular morality: the morality of human rights (as I call it). In this essay, I address several questions concerning that morality.
1. Why accept the morality of human rights?
I begin with this fundamental question: What reason (or reasons) do we have, if any, to accept, rather than reject, the morality of human rights; more precisely, what reason do we have, if any, to live our lives—and to do what we reasonably can, all things considered, to get our governments to conduct their affairs—in accord with the morality of human rights?
The term “human right” has no canonical meaning. Indeed, the term, as philosopher James Griffin has observed, “is nearly criterionless. There are unusually few criteria for determining when the term is used correctly and when incorrectly—and not just among politicians, but among philosophers, political theorists, and jurisprudents as well.” However, in the context both of the Universal Declaration of Human Rights and of the several international human rights treaties that have entered into force in the period since the adoption of the Universal Declaration, the term “human right” does have a particular meaning.
When we read the Universal Declaration and the several international human rights treaties that have followed in the Universal Declaration’s wake, we see that the documents state rules of conduct for government, both rules that direct government not to do something and rules that direct government to do something. The principal terminology in which such rules are conventionally discussed is the terminology—the language—of “human rights.” The language of human rights entails the language of “duties:” To say that A has a right that B not do X to A is to say that B has a duty not to do X to A; to say that A has a right that B do X for A is to say that B has a duty to do X for A.
As the international human rights documents illustrate:
- The rights (rules) listed in documents directly regulate government actors; in that sense, the duty-bearers are government actors. However, some rights require government actors to regulate nongovernment actors and thereby indirectly regulate nongovernment actors. For example, Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women requires state parties “to take all appropriate measures to eliminate discrimination by any person, organization, or enterprise.”
- Although according to most of the rights listed in the documents, the rights-holders are all human beings (i.e., all born human beings), according to some of the listed rights, the rights-holders are not all human beings but only some.
Article 37 of the Convention on the Rights of the Child, which is the most widely ratified international human rights treaty, is an example of an international human right according to which only some human beings are the rights-holders: Article 37 requires government to “ensure that: (a) . . . Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.” Article 38 of the Convention is another example: Article 38 requires government to “refrain from recruiting any person who has not attained the age of fifteen years into their armed forces.”
As Articles 37 and 38 of the Convention reflect, that government may justifiably do something to some human beings, does not entail that government may justifiably do the same thing to all human beings. For example, that government may justifiably recruit adults into the military does not entail that it may justifiably recruit children. Similarly, that government may justifiably decline to do something for some human beings—for example, able-bodied persons—does not entail that that it may justifiably decline to do the same thing for human beings who are disabled. One of the most recent international human rights treaties to enter into force (2008) is the Convention on the Rights of Persons with Disabilities. Another example is Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women, which provides, in relevant part, that “States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.”
Philosopher John Tasioulas has claimed that the term “human right” has an “orthodox” meaning, which Tasioulas endorses: a right “possessed byall human beings simply in virtue of their humanity.” However, in the context of the Universal Declaration and of the several international human rights treaties that have followed in its wake, some human rights are rights possessed not by all human beings but only by some. As the term “human right” is understood both in the Universal Declaration and in the treaties that have followed in its wake, a right is a human right, even if the rights-holders are not all but only some human beings, if the fundamental rationale for establishing and protecting the right (e.g., as a treaty-based right) is that conduct that violates the right violates the norm stated in Article 1 of the Universal Declaration that “all human beings . . . should act towards one another in a spirit of brotherhood.” For example, the fundamental rationale for Articles 37 and 38 of the Convention on the Rights of the Child is that for government to engage in conduct that violates either article is for it to fail to act “in a spirit of brotherhood” toward some human beings: children.
The morality of human rights—the morality embodied in the Universal Declaration—is not just a political morality. Again, according to Article 1 of the Universal Declaration, “all human beings . . . should act towards one another in a spirit of brotherhood.” Nonetheless, in stating rules of conduct for government—every government—the morality of human rights is a political morality. Indeed, the morality of human rights is the first truly global political morality in human history. What does the morality of human rights require of government?
In drafting Article 1 of the Universal Declaration, René Cassin, the French delegate to the United Nations commission charged with drafting what would become the Universal Declaration,
had wanted to stress “the fundamental principle of the unity of the human race” because Hitler had “started by asserting the inequality of men before attacking their liberties.” Later on, Cassin reiterated the point that “the authors of that Article had wished to indicate the unity of the human race regardless of frontiers, as opposed to theories like those of Hitler.” When someone . . . observed that these principles were too well known and did not need to be stated again, Cassin quickly responded that the argument “was invalid in light of recent events. Within the preceding years,” he said, “millions of men had lost their lives, precisely because those principles had been ruthlessly flouted.” He thought it “was essential that the UN should again proclaim to mankind those principles which had come so close to extinction and should refute the abominable doctrine of fascism.”
The general requirement of the morality of human rights, as Cassin’s comments indicate, is that (in the words of Article 1) “all human beings . . . should act towards one another in a spirit of brotherhood:” Neither any government actor nor anyone else should act towards any human being in a hateful or even indifferent way; to do so would be to violate the morality of human rights. The most common bases for acting towards some human beings in such a way, as Article 2 of the Universal Declaration indicates, include “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
The specific requirements of the morality of human rights are the several rights set forth in the Universal Declaration. The specific requirements/rights are specifications, for particular contexts, of the general requirement. Article 5 of the Universal Declaration, for example, is, in part, a specification for the context of punishment: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
What reason(s) do we have, if any, to accept the morality of human rights? In particular, what reason do we have to accept the general requirement, which grounds the specific requirements? That some of us have a reason to live our lives, and to do what we reasonably can, all things considered, to get our governments to conduct their affairs, in accord with the requirement to “act towards all human beings in a spirit of brotherhood” does not entail that others of us have the same reason—or, indeed, any reason—to do so. For example, some of us have a theistic reason: a reason based on a theistic worldview. But many of us are not theists, and the inquiry I want to pursue here is secular, not theological: What reason do we who are not theists have, if any, to accept the “act towards all human beings in a spirit of brotherhood” requirement?”
—from The Morality of Human Rights, 42 Human Rights Quarterly 434 (2020)