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Abstract

In the majority of cases involving the protection of human rights, the general approach is to give human rights a legal status by incorporating them into some international charter or national constitution, thereby making them justiciable. This establishes two things simultaneously. It imposes certain obligations upon those wielding political power to protect and to promote human rights among their subjects; it also confers a legitimate claim upon those ruled to have their rights respected. There is more to a human rights claim however than the fact of its legal status. It is fundamentally a moral claim imposing a moral obligation. This additional consideration is not just a mere emphasis on the legal argument. It has a specific dimension of its own that most often involves a distinct category—the moral as opposed to the merely legal. The legal aspect as we have seen is established by the fact of these rights being incorporated into some international charter or national constitution. But legality does not always imply morality. For the legal to be at the same time moral, it has to satisfy some conditions that give it a moral status making it more binding a least in conscience.

The other, more fundamental, aspect of the human rights issue which gives both the legal and the moral their grounding is the human element. A legitimate claim to certain rights is based on the concept of the human being as a “person”. Only persons have rights, right meaning a certain quality or property of relationship between persons, such that one demands certain things and insists that he or she must have them as a matter of legitimacy. From this point of view one cannot strictly speaking, talk about the rights of animals, except in so far as these animals belong to persons. In the same way, moral claims and obligations make sense only in the context of persons. The fundamental assumptions of our human rights arguments therefore rest ultimately on the fact that human beings are persons who by virtue of their very nature have legal and moral claims that are intrinsic to them. A great deal of effort is being made to assign legal grounds to sanctions in case of their infringement. The necessity for these sanctions derives from the fact that people can recognize the moral as well as the ontological basis for human rights and yet refuse to acknowledge, respect, protect or promote them. In this particular case, the sanction imposed by law takes effect. The ideal situation however should have been the recognition as well as the promotion of the legitimate claims of the human person not because of the fear of any sanctions, but because as a human person, he or she ought to be accorded those rights.

This paper will therefore try to investigate the philosophical basis for the concept of the human person upon which are founded human rights claims.

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References

1 Charles Kahn

, The Art and Thought of Heraclitus: An Edition of the Fragments with Translation and Commentary (Cambridge, 1983), p. 10.

2 Quoted by Kahn, Ibid, p. 15. Here the nomos (rule or Law) among the beasts, the law of the jungle, is that natural tendency in them to devour one another.

3 Professor Kahn's arrangement of the Fragments differs from that of H. Diels. Since the latter is more generally known, we are here keeping to Diels’ arrangement. The three Fragments under discussion here, D 112, D 113 and D 116 are found in Kahn, n. 1, pp. 41–43.

4 Charles H. Kahn, n. 1, pp. 29. Here Kahn lists the various meanings of logos: “saying, discourse, statement, report; account, explanation, reason, principle; esteem, reputation; collection, enumeration, ratio, proportion.”

5 Charles H. Kahn, n. 1, p. 94.

6 Ibid., p. 97.

7 Ibid., p. 131.

8 Ibid., p. 117. Rene Descartes was later to echo this claim of Heraclitus that “speaking with understanding … is shared by all” and also “suffices for all.” In Part One of his Discourse of Method Descartes writes: “Good sense is mankind's most equitably divided endowment, for everyone thinks that he is so abundantly provided with it that even the most insatiable appetites and those most difficult to please in other ways do not usually want more than they have of this. As it is not likely that everyone is mistaken, this evidence shows that the ability to judge correctly and to distinguish the true from the false—which is really what is meant by good sense or reason—is the same by nature in all men; and that differences of opinion are not due to differences in intelligence, but merely to the fact that we use different approaches and consider different things.” Discourse on Method and Meditations translated by Laurence J. Lafleur (Indianapolis, 1960), pp. 3-4.

9 Charles H. Kahn, n. 1, p. 15.

10.

10 Laws IV, 714A and Laws XII, 957 in The Collected Dialogue of Plato Including the Letters , Edited by Hamilton

Edith

Cairns

Huntington

(Princeton. 1973), pp. 1305 and 1502).

11.

11 The original Latin definition reads: “qua edamrationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgata.” Summa Theolagica , I-II: Q. 90 A. 4. Here St. Thomas appears to base the legitimacy of the lawgiver on the duty to care for the community. The English translation is to be found in The Political Ideas of St. Thomas Aquinas, Edited by Dino Bigongiari (New York and London, 1969), p. 91.

12.

12 Quoted in A. H. Armstrong, An Introduction to Ancient Philosophy (Boston, 1966), p. 91.

13.

13 Ibid., p. 99.

14.

15.

15 George

H. Sabine

, A History of Political Theory (New York, 1962), p. 142. I have benefited from Sabine, especially from his account of Stoicism.

16.

16 Quoted by Sabine Ibid., p. 141.

17.

17 George H. Sabine, n. 15, p. 153.

18.

18 Ibid., p. 150.

19.

19 Ibid., p. 422.

20.

20 Quoted in George H. Sabine, n. 15, p. 424.

21.

21 Quoted by Sabine Ibid., p. 154.

22.

22 George H. Sabine, n. 15, p. 155.

23.

23 1 Corinthians, 12, 4-12. Quoted by Sabine Ibid., p. 143.

24.

25.

25 Maurice

De Wulf

, Philosophy and Civilization in the Middle Ages (New York, 1953), p. 34. Emphasis in the original.

26.

27.

27 Maurice

De Wulf

, Philosophy and Civilization in the Middle Ages (New York, 1953), p. 26.

28.

28 Ibid., p. 25.

29.

30.

30 Ibid., p. 28.

31.

31 Stephen

Raushenbush

, Man's Past: Man's Future: A Humanistic History for Tomorrow (New York, 1969), p. 73.

32.

32 Stephen

Raushenbush

, Ibid.

33.

34.

35.

36.

37.

37 Ibid., p. 74.

38.

39.

40.

40 Laurie Wiseberg and Warren Weinstein pointed out that: “Several cases have involved alleged violations in Black Africa: the reign of terror in Uganda, genocide and racial discrimination in Burundi, mass killings in Equotorial Guinea and forced marriages in Tanzania.” Nevertheless, at the United Nations, “African States have refrained from open debate on these cases.” See “A Note From the Editors” in Issue: A Quarterly Journal of Africanist Opinion, Vol. VI, No. 4, Winter 1976, p. 2.

41.

41 Eddison Zyobgo has argued that the sort of human rights violations obtaining in South Africa is of a different nature from what we have in other Black African countries. See his article “The Abuse of Executive Prerogative: A Purposive Difference Between Detention in Black Africa and Detention in White Racist Africa.” In Issue Vol. VI, No. 4, Winter 1976, pp. 38–43.

The Philosophical Basis for Human Rights Claims

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