Defining human rights

The nature of human rights: commonly accepted postulates

Despite this lack of consensus, a number of widely accepted (and interrelated) postulates can assist in the task of defining human rights. Five in particular stand out, though not even these are without controversy.

First, regardless of their ultimate origin or justification, human rights are understood to represent both individual and group demands for political power, wealth, enlightenment, and other cherished values or capabilities, the most fundamental of which is respect and its constituent elements of reciprocal tolerance and mutual forbearance in the pursuit of all other such values or capabilities. Consequently, human rights imply both claims against persons and institutions impeding the realization of these values or capabilities and standards for judging the legitimacy of laws and traditions. At bottom, human rights qualify state sovereignty and power, sometimes expanding the latter even while circumscribing the former (as in the case of certain economic and social rights, for example). Increasingly, human rights are said also to qualify “private sovereignty” (as in the case, for example, of challenging the impunity of overbearing business enterprises, protecting family members from domestic violence, and holding non-state terrorist actors to account).

Second, human rights are commonly assumed to refer, in some vague sense, to “fundamental,” as distinct from “nonessential,” claims or “goods.” In fact, some theorists go so far as to limit human rights to a single core right or two—for example, the right to life or the right to equal opportunity. The tendency is to emphasize “basic needs” and to rule out “mere wants.”

Third, reflecting varying environmental circumstances, differing worldviews, and inescapable interdependencies within and between different value or capability systems, human rights refer to a wide continuum of claims, ranging from the most justiciable (or enforceable) to the most aspirational. Human rights partake of both the legal and the moral orders, sometimes indistinguishably. They are expressive of both the “is” and the “ought” in human affairs.

Fourth, most assertions of human rights—though arguably not all (freedom from slavery, genocide, or torture are notable exceptions)—are qualified by the limitation that the rights of individuals or groups in particular instances are restricted as much as is necessary to secure the comparable rights of others and the aggregate common interest. Given this limitation, which connects rights to duties, human rights are sometimes designated “prima facie rights,” so that ordinarily it makes little or no sense to think or talk of them in absolutist terms.

Finally, if a right is determined to be a human right, it is understood to be quintessentially general or universal in character, in some sense equally possessed by all human beings everywhere, including in certain instances even the unborn. In stark contrast to the divine right of kings and other such conceptions of privilege, human rights extend in theory to every person on Earth, without regard to merit or need, simply for being human or because they mitigate inherent human vulnerability or are requisite to social justice.

In several critical respects, however, all these postulates raise more questions than they answer. For instance, if, as is increasingly asserted, human rights qualify private power, precisely when and how do they do so? What does it mean to say that a right is fundamental, and according to what standards of importance or urgency is it so judged? What is the value of embracing moral as distinct from legal rights as part of the jurisprudence of human rights? Do nonjusticiable rights harbour more than rhetorical significance? If so, how? When and according to what criteria does the right of one person or group of people give way to the right of another? What happens when individual and group rights collide? How are universal human rights determined? Are they a function of culture or ideology, or are they determined according to some transnational consensus of merit or value? If the latter, is the consensus in question regional or global? How exactly would such a consensus be ascertained, and how would it be reconciled with the right of nations and peoples to self-determination? Is the existence of universal human rights incompatible with the notion of national sovereignty? Should supranational norms, institutions, and procedures have the power to nullify local, regional, and national laws on capital punishment, corporal punishment of children, “honour killing,” veil wearing, female genital cutting, male circumcision, the claimed right to bear arms, and other practices? For some in the human rights debate, this raises a further controversy concerning how such situations comport with Western conceptions of democracy and representative government.

In other words, though accurate, the five foregoing postulates are fraught with questions about the content and legitimate scope of human rights and about the priorities, if any, that exist among them. Like the issue of the origin and justification of human rights, all five are controversial.

The content of human rights: three “generations” of rights

Like all normative traditions, the human rights tradition is a product of its time. Therefore, to understand better the debate over the content and legitimate scope of human rights and the priorities claimed among them, it is useful to note the dominant schools of thought and action that have informed the human rights tradition since the beginning of modern times.

Particularly helpful in this regard is the notion of three “generations” of human rights advanced by the French jurist Karel Vasak. Inspired by the three themes of the French Revolution, they are: the first generation, composed of civil and political rights (liberté); the second generation of economic, social, and cultural rights (égalité); and the third generation of solidarity or group rights (fraternité). Vasak’s model is, of course, a simplified expression of an extremely complex historical record, and it is not intended to suggest a linear process in which each generation gives birth to the next and then dies away. Nor is it to imply that one generation is more important than another, or that the generations (and their categories of rights) are ultimately separable. The three generations are understood to be cumulative, overlapping, and, it is important to emphasize, interdependent and interpenetrating.