The theory of Human Right

郭国汀 · 发表于 2/10/2018 03:13:26

The dominant concept of human rights entails: (1) the right to

be free from what are often called "atrocities," such as torture

and genocide; and (2) political and civil rights, including elec-

tions and judicial process and freedom of thought, speech and

press.

The UN Charter, which entered into

force in 1945, provided that all signatory governments would

promote "universal respect for, and observance of, human

rights and fundamental freedoms."[1]

the Universal Declaration is extremely broad. It pro-

vides that "[everyone has the right to life, liberty, and security

of person;"[1] that "[no one shall be held in slavery;"[2] that

"[all are equal before the law;"[3] that "[no one shall be sub-

jected to torture or to cruel, inhuman or degrading treatment

or punishment."[4] It states that "[everyone is entitled ... to a

fair and public hearing by an independent and impartial tribu-

nal in the determination of his rights and obligations and of

any criminal charge against him;"[5] that everyone has the

"right to own property;"[6] that everyone has the "right to a

nationality;"[7] and that men and women have the "right to

marry and to found a family."[8] It provides that everyone has

the right to work;[9] that everyone has the right "to free choice

of employment,"[10] and to "just and favourable conditions of

work;"[11] and that everyone has the right to "freedom of opin-

ion and expression,"[12] "freedom of thought,"[13] freedom of

"conscience,"[14] and freedom of "religion."[15] Finally, it guaran-

tees that everyone has the "right to a standard of living ade-

quate for the health and well-being of himself and of his fami-

ly, including food, clothing, housing and medical care;"[16] that

everyone has the "right to rest and leisure, including reason-

able limitation of working hours and periodic holidays with

pay;"[17] that everyone has the right to education;[18] that every-

one has the right to free elementary education[19] and to higher

education accessible to all on the basis of merit;[20] and that

everyone has the right "to enjoy the arts and to share in scien-

tific advancement.[21]

[1] . Id. art. 3, at 72.

[2] . Id. art. 4, at 73.

[3] Id. art. 7, at 73.

[4] Id. art. 5, at 73.

[5] Id. art. 10, at 73.

[6] Id. art. 17(1), at 74.

[7] Id. art. 15(1), at 74.

[8] Id. art. 16(1), at 74.

[9] See id. art. 23, at 75.

[10] Id.

[11] Id.

[12] Id. art. 19, at 74.

[13] Id. art. 18, at 74.

[14] Id.

[15] Id.

[16] Id. art. 25(1), at 76.

[17] Id. art. 24, at 75.

[18] See id. art. 26(1), at 76.

[19] See id.

[20] See id.

[21] Id. art. 27, at 76.

[1] U.N. CHARTER art. 55(c).

郭国汀 · 发表于 2/10/2018 12:31:46

本帖最后由郭国汀于 2/10/2018 16:37 编辑

Under the Optional Protocol,

individuals claiming a violation of rights under the ICCPR,

who have exhausted all available domestic remedies, may

submit a statement to the Human Rights Committee.[1]

Underthe Optional Protocol,

the Human Rights Committee shall then

bring such claims to the attention of the state party alleged to

be violating the covenant and the state party must within six

months provide a written explanation or statement regarding

the remedial action taken by that state.[2]

Civil and political rights consisted

of entitlements to judicial and political processes, belief and

expression, as well as freedom from torture, enslavement and

execution-and the covenant regarding civil and political rights

contained mechanisms for both investigation and enforcement.

under the Nuremberg principles,

state officials can be guilty of human rights violations for

their acquiescence or failures to act.

A state which consents

or acquiesces to acts of genocide or torture by paramilitary

death squads, for example, may be deemed to be in violation of

human rights for its failure to intervene. Thus, the human

right of freedom from torture in fact requires not only that the

state abstain from torturing individuals, but that it act affir-

matively to prohibit and prevent non-state actors from engag-

ing in these practices.

Maurice Cranston. In

his influential critique of the Universal Declaration, Cranston

argued that the criteria for determining what constitutes hu-

man rights are "practicability" and "paramount importance."[3]

It is more practical to assert the existence of political rights

than economic rights, he suggests: political rights "can be

readily secured by legislation," whereas economic and social

rights can rarely, if ever, be secured by legislation alone.

Cranston points out that the legislation by which political

rights are secured is more straightforward than that needed

for economic rights. Often political rights can be achieved by

restraining governmental conduct.[4]

the Enlightenment gives us one of the fundamental notions of

modern political thought: that there are such things as rights

and that they are universal," inherent, self-evident and in-

alienable.[5]

[1] Convention on

the Prevention and Punishment of the Crime of Genocide, adopted Dec. 9, 1948,

78 U.N.T.S. 277; International Convention on the Elimination of All Forms of

Racial Discrimination, opened for signature Mar. 7, 1966, 660 U.N.T.S. 195; Inter-

national Convention on the Suppression and Punishment of the Crime of Apartheid,

adopted Nov. 30, 1973, 1015 U.N.T.S. 245; Convention on the Elimination of

All Forms of Discrimination against Women, opened for signature Mar. 1, 1980,

1249 U.N.T.S. 13; Convention Against Torture and Other Cruel, Inhuman or De-

grading Treatment or Punishment, opened for signature Feb. 4, 1985, S. TREATY

Doc. No. 100-20 (1988), 23 I.L.M. 1027. However, what is known as "the Interna-

tional Bill of Human Rights" consists of the Universal Declaration, supra note 14;

International Covenant on Civil and Political Rights, adopted Dec. 19, 1966, SEN.

EXEC. Doc. E, 95-2, at 23 (1978), 999 U.N.T.S. 171 [hereinafter ICCPR]; Interna-

tional Covenant on Economic, Social and Cultural Rights, adopted Dec. 16, 1966,

993 U.N.T.S. 3 [hereinafter ICESCRI; Optional Protocol to the International Cove-

nant on Civil and Political Rights, adopted Dec. 16, 1966, 999 U.N.T.S. 302 [here-

inafter Optional Protocol]; Second Optional Protocol to the International Covenant

on Civil and Political Rights Aiming at the Abolition of the Death Penalty, adopt-

ed Dec. 15, 1989, GA. Res. 44/128, U.N. GAOR Supp. No. 49 at 206, U.N. Doc

A1441824 (1989). art. 2, 999 U.N.T.S. at 302.

[2] art. 4, 999 U.N.T.S. at 303.

[3] MAURICE CRANSTON, WHAT ARE HUMAN RIGHTS? 66, 67 (1973).

[4] See id. at 66.

[5] . As has been pointed out on many occasions, the "universe" for the En-

lightenment thinkers was in fact limited to white males of European descent. See,

e.g., CAROL PATEMAN, THE SEXUAL CONTRACT 221 (1988) (observing that "[t]hrough

the mirror of the original contract, citizens can see themselves as members of a

society constituted by free relations. The political fiction reflects our political selves

back to us-but who are" we'? Only men-who can create political life-can take

part in the original pact."); see also DIANA H. COOLE, WOMEN IN POLITICAL THEO-

RY 71-132 (1988) (discussing Hobbes, Locke and Rousseau). For a discussion of the

implicit and explicit racism in the revolutionary thought of the Enlightenment, see

RONALD T. TAKAKI, IRON CAGES: RACE AND CULTURE IN NINETEENTH-CENTURY AMERICA 1-15 (1979). My interest here lies in addressing the notion of universal

rights as such.

郭国汀 · 发表于 2/10/2018 16:49:18

Thomas Hobes,

life of man, solitary, poor, nasty, brutish, and short." The

"right of nature," consists in "the Liberty each man hath,

to use his own power ... for the preservation of his own Na-

ture; that is to say, of his own Life" and to anything he con-

ceives to be useful toward that end.

the sovereign does not rule by divine right

or a right of tradition; rather, sovereign power is conferred by

consent of individuals living in the warlike state of nature.

he has a right to destroy anyone who threatens him

with destruction or enslavement.[1] The "Natural Liberty of

Man is to be free from any Superior Power on Earth," Locke

says, "but to have only the Law of Nature for his Rule."[2]

Thus, legislative power over man within the commonwealth

can be established only by consent.

Locke says that "men

being, as has been said, by Nature, all free, equal and indepen-

dent, no one can be put out of this Estate, and subjected to the

Political Power of another, without his own Consent.[3]

Rousseau reiterates the conception of a state of nature as

the origin of rights and consent as the basis for legitimate

sovereignty. "Man is born free, and everywhere is in chains,"

since force does not give rise to any

right, conventions therefore remain the basis of all legitimate

authority among men."[4]

The transition from the state of nature to the civil state

takes place when each individual alienates his rights to the

whole community, which is expressed in the general will.[5]

Declaration of Independence, it is a "self-evident" truth that

"all men are created equal, that they are endowed by their

Creator with certain unalienable Rights," which include "Life,

Liberty, and the pursuit of Happiness."[6] These rights are

prior to government and legitimate government is a convention

based upon consent: "to secure these rights, Governments are

instituted among men, deriving their just powers from the

consent of the governed."[7] The people retain the right to

dissolve a government: 'That whenever any Form of Govern-

ment becomes destructive of these ends, it is the Right of the

People to alter or to abolish it."[8]

[1] See id. at 278-79.

[2] Id. at 283

[3] Id. at 330.

[4] Id. at 20.

[5] See id. at 26-27.

[6] . Id.

[7] . Id. The Virginia Declaration of Rights of June 12, 1776, is, interestingly,

both more explicit and more concrete. It states:

1. That 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 and pos-

sessing property, and pursuing and obtaining happiness and safety.

2. That all power is vested in, and consequently derived from, the Peo-

ple; that magistrates are their trustees and servants, and at all times

amenable to them.

3. That Government is, or ought to be, instituted for the common benefit,

protection, and security of the people, nation, or community; . . . and

that, whenever any Government shall be found inadequate or contrary to

these purposes, a majority of the community hath an indubitable, inalien-

able, and indefeasible right to reform, alter or abolish it ....

VIRGINIA DECLARATION OF RIGHTS arts. 1-3, reprinted in 1 THE FOUNDERS' CONSTITUTION 6 (Philip B. Kurland & Ralph Lerner eds., 1987).

[8] See DECLARATION OF THE RIGHTS OF MAN AND CITIZEN [hereinafter DECLA-

RATION OF THE RIGHTS OF MAN], reprinted in, THE CONSTITUTION AND OTHER DOCUIMENTS ILLUSTRATIVE OF THE HISTORY OF FRANCE 1789-1907 15 (2d ed. 1908).

郭国汀 · 发表于 2/12/2018 01:03:13

Jeremy Bentham in 1796 wrote an essay against the natural right today call human rights : it consists of "execrable trash," that its purpose is "resistance to all laws" and "insurrection," that its advocates "sow the seeds of anarchy broadcast," and, most memorably, that any doctrine of natural rights is "simple nonsense: natural and imprescriptible rights, rhetorical nonsense,-nonsense upon stilts."[1]

[1] Anarchical Fallacies, supra note 3, at 501. We do know what Bentham thought of the natural rights mentioned in the American "Declaration of Independence." In a letter to John Lind in September 1776, he denounces it for the "extravagance" of its "tenets," notably its reliance upon "inalienable" rights. Letter (1 79a) from Jeremy Bentham to John Lind (2(?) Sept. 1776), in 1 JEREMY BENTHAM, THE CORRESPONDENCE OF JEREMY BENTHAM 341, 343 (Timothy L.S. Sprigge ed., 1968). I am indebted to Catherine Fuller for drawing this letter to my attention.

郭国汀 · 发表于 2/12/2018 01:43:41

本帖最后由郭国汀于 2/12/2018 01:50 编辑

In A Matter of Principle, Dworkin offers the premise that two dominant

themes in twentieth-century jurisprudence have distorted the concept of

law: legal positivism and utilitarianism. Legal positivism asserts that the

only existing rights and duties are those explicit in positive law-that is,

legislative statutes or past judicial decisions. This assumes that law exists

only because of human action. Utilitarian theories go further. They argue

that what is good for society is the foundation of law-in other words,

whatever constitutes the greatest good for the greatest number should

dictate what laws exist.

Dworkin's work, as I understand it,

stands primarily for two things: (1) the primacy of individual human rights,

and (2) the reality of principles that provide a moral context for interpreting

the Constitution and adjudicating "hard cases." His jurisprudence also

opposes all forms of positivism and utilitarianism as adequate justifications

for law.

In the name of the

majority rule, utility ignores the individual, rights are not taken seriously,

and law is nothing more than the possibility of tyranny by the party in

power.

郭国汀 · 发表于 2/12/2018 13:11:11

本帖最后由郭国汀于 2/12/2018 13:32 编辑

the importance of the right of equality

the most fundamental element in Catholic social doctrine concerns the principle

of the dignity and worth of every individual: Human life is sacred.[1] I also

indicated my belief that human dignity is the basis for the development of

public policy.[2] Dworkin seemingly would agree with this belief, but he

discusses it more specifically in terms of equality,[3] indeed a particularly

fundamental conception of equality: "Individuals have a right to equal

concern and respect in the design and administration of the political

institutions that govern them.[4] At the most basic level, individual women

and men have the right to treatment as equals. All other claims to rights

or entitlements can be derived from this right, including claims to equal

treatment. Although these other claims may be secondary, they are often

put forward as more important than treatment as equals.[5]

Equal

concern and respect-the fundamental conception of equality derived from

Rawls's theory, and the root from which all other rights are derived-are

the very rights protected by the equal protection clause.[6]

Dworkin demonstrates that law is much more than the mechanical ap-

plication of rules and the search for legislative intent. Law is, in some

important ways, the vehicle for the decision of important questions of

politics and moral principle. This is especially true for constitutional law,

lawyers must be the philosopher.

[1] See Bernardin, Marty & Adams, The Role of the Religious Leader in the Development

of Public Policy, 34 DEPAUL L. REV. 1, 3 (1984).

[2] Id.

[3] R. DWORKIN, supra note 6, at 184, 198-99.

[4] Id. at 180.

[5] The point is made clear in the general moral example involving two persons suffering

from the same disease when there is only one dosage of treatment available. Equal concern

and respect requires that the dosage be given to the individual who is dying rather than to the

one who is only uncomfortable. Id. at 227.

[6] Id. at 229.

郭国汀 · 发表于 2/12/2018 14:40:33

本帖最后由郭国汀于 2/12/2018 16:01 编辑

The old value system of our society was based on Darwinian and free

market principles which assume that all units are autonomous or inde-

pendent. A belief in competition is central to this value system, which

explains individual behavior in terms of self-interest.[1]

Coordinated activities among people require a social contract.

The concept of justice based upon the competitive value system is

classic utilitarianism, which assumes that the propensities and desires of

individual human beings are given. It is assumed that if each individual

does what is right for that individual, the good of all is maximized.

McGregor and Sarason and

point toward a value system based upon collaboration.[2]

caring has to become a central human value if people

are to have a basic stability in their lives and to find a place in the world.

Collaboration can succeed only if those who work together care about

and for each other.

the reasons for women's lack of achievement as compared to men.

Homer's research led her to explain woman's achievement difficulties as

due to a "motive to avoid success."[3] Her data were widely accepted as

proof that women suffered from anxiety over expectation of success.

a motive to avoid success was in fact anxiety regarding competitive success.[4]

the economic

system based upon competition is no longer viable and that it is important

that we seek new solutions. We have suggested that collaboration offers

an attractive alternative. Furthermore, we believe that the competitive

system, which most have come to accept as the outcome of natural law

and the very qualities that the system requires of human beings-egotism,

selfishness and greed-are destructive of basic human rights and inimical

to survival. We have also tried to show that this same value of competi-

tion is psychologically oppressive of women and that it must be discarded

[1] M. Weber, The Protestant Ethic and the Spirit of Capitalism (London: Oxford Universit Press, 1947).

[2] D. McGregor, The Human Side of Enterprise (New York: McGraw-Hill, 1960); S. Sarasen, The Creation of Settings (San Francisco: Jossey-Bass, 1972).

[3] M. S. Homer, "Sex Differences in Achievement Motivation and Performance in Competitive and Noncompetitive Situations," (Ph.D. diss., University of Michigan,1968).
[4] M. Zuckerman and S.N. Aleson, "An Objective Measure of Fear of Success: Construction and Validation," Journal of Personality Assessment (1976)40:424-27.

郭国汀 · 发表于 2/12/2018 16:49:15

John Finnis in Natural Law and Natural Rights to show that the liberal morality of human rights can be derived from the requirements of reason, without having to invoke any special Divine revelation or metaphysics; he contends that every moral obligation, every ought and its cognates, is derivable from practical reason, Practical reasonableness, amounts to the human capacity for exercising freedom and reason which are the characteristics of human personality. These characteristics enable one to grasp the requirements of practical reasonableness, which is the ability to express, shape, and select one's participation in what he calls the "basic goods" or "basic values."If one behaves in accordance with the principles of practical reasonableness and promotes the basic goods, i.e., if one acts in a manner which is self-evidently reasonable, human rights and minimal morality will result.

1) "respect every basicvalue in every act, 2) "show no arbitrary preferences amongst persons, and 3) the requirement of practical reasonablenessthat one should favor and foster "the commongood of one's communities."

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