Human Rights: an impractical illusion or a practical reality
© Guillermo Calvo Mahe, Manizales, 2010; all rights reserved
Human rights is a concept so relevant that its existence is difficult to deny. Unfortunately, it has become a concept so convoluted, historically and logically, and so politically charged, that it seems impossible to agree on an effective definition and slightly more impossible, in the current politico-juridical context to develop effective guarantee mechanisms.
In large part, both problems stem from a common cause, the modern liberal tendency to lump unrelated concepts together, regardless of their differences and inconsistencies, merely because they have positive connotations; e.g., the concepts of democracy and liberty, logically antithetical but almost always politically conjoined as though they were inseparable Siamese twins.
That is clearly the case with human rights which have interpersonal, domestic, supranational and international dimensions, as well as two huge conceptual predicates, one negative, the traditional “shall nots” and one positive, the newer “shall” series of obligations.
Additionally the very concept of a right versus a privilege irreparably confuses the issue. The two terms, in cultural, social, ethical and legal senses, should not be mere synonyms. Based on social contract theory rights are those elements of sovereignty retained by individuals over which government has no jurisdiction and into which it cannot intrude, ever, under any circumstances. Privileges are those elements of sovereignty which the individual has surrendered to the collective, be it the people or the state, and which have been returned conditionally. However, because the term “right” is much more positively charged it is used in the context of “human rights” where the more proper term involves privileges. That is especially true of those concepts denominated rights which are merely aspirational, i.e., in most cases, the “positive” social, cultural and economic rights.
As there are no concepts denominated human rights which are not in some way subject to conditions or exceptions the starting point in developing workable concepts is the recognition of the fact that human rights, as a logical concept based on the social contract, probably do not exist. That is an empirical observation beyond the argument by David Hume that the scientific predicates and postulates for the concept of fundamental rights and natural law espoused by philosophers like John Locke lacks any demonstrable scientific basis or justification.
What we have and what we should seek to expand, promote and protect, are fundamental privileges and fundamental political aspirations and if we recognize that fact, we can begin to mold the definitions necessary to permit effective enforcement. The use of nominative fictions to differentiate identical concepts based on whether in a given context we want to support or oppose a given action are useful for rhetorical purposes but extremely damaging from a normative perspective.
Examination of two of the most emotional charged “rights” is illustrative, i.e., the concepts of the “right to life” and “freedom from slavery”. The deprivation of liberty permitted to governments in the context of imprisonment or conscription is illogically differentiated from similar situations frowned upon by the law, which are denominated slavery. The same is true of abortion, the death penalty or the deprivation of life in war or police action which eliminates life but is differentiated from the myriad classifications of homicide. By merely giving a term a negative or a positive charge we change actions with identical consequences into different legal concepts. That is a reality whose change is unlikely and impractical. However, by denominating the subjects and objects of such actions as rights rather than privileges, especially in the modern context of human “rights” as “universal, indivisible, interdependent and interrelated” (see Part I, paragraph 5 of the Vienna Declaration and Program of Action adopted by consensus at the World Conference on Human Rights on 25 June 1993 in Vienna, Austria), we obfuscate them, render them incomprehensible, and create an environment unlikely to evolve into a practical juridical system.
While inspirational in their aspirational eloquence all of the post World War II international conventions on human rights are unfortunately conceptually illogical and impractical. As a result, they are unreliable mechanisms to attain their announced goals, raising human hopes only to dash them in cold, calculating realities. If their aspirations are ever to be approached, then their beautiful emotive and hyperbolic language needs to be replaced by logical, clear and concise concepts and practical realities announced and specified rather than merely winked at and understood.
Perhaps the easiest place to start is organizational and semantic; a realization that in order to be rendered effective, different concepts need to be segregated and given their own unique names. Where would we be in medical science if all diseases were merely called “illness” and all medications merely called “medicine”? In addition, practicality requires that systemic prioritization be recognized.
Some initial suggestions:
- Differentiation between rights and privileges, with recognition of the probability that in no current state is any right recognized, thus making the current legal setting one that involves human privileges and the conditions that limit them.
- Effective enforcement mechanisms for human privileges must be established, realistically recognizing acceptable but strictly defined specific defenses for violations, and punishing unexcused violations in a manner eliminating all aspects of impunity.
- Categorizing human privileges into four broad categories
- Restrictions on governmental activity traditionally recognized as resulting in fundamental rights such as those reflected in the United States Bill of Rights (the “government shall nots”);
- Restrictions on actions by individuals in their relationships with other individuals (the individual shall nots);
- Obligations to act involved in the newer economic, social and cultural “guarantees” requiring governmental actions of some kind; and
- Obligations to act involved in the newest economic, social and cultural “guarantees” requiring individual or commercial actions of some kind.
The categories should in turn be internally prioritized, not on the basis of their importance to the individuals who ought to eventually be deemed their subjects, but on the realistic basis of how attainable they are. Thus, the order in which they are listed above coincides with their currently anticipated attainability. Prioritization within each such category based initially on attainability would also seem essential, as, in fact, it is likely that within each category there will be concepts more attainable than others in higher priority categories, that being especially true in the second and fourth categories involving actions by persons operating outside the color of law.
Finally, concepts should be allocated on a non exclusive basis among the juridical frameworks through which enforcement may be anticipated. These include: tort law (relationships among individuals), penal law (the state versus the individual), constitutional law (the individual versus the state or intrastate institutions versus other intrastate institutions), supranational law and international law.
These suggestions do not imply that aspirational concepts should be abandoned merely because their attainment is currently impossible or impractical but it does express the opinion that until consistent enforcement becomes practical, false hopes that more often than not avoid and delay real and practical solutions must be eliminated and efforts concentrated on finding and implementing realistic immediate solutions must be accelerated.