The Promise of Human Rights. Jamie Mayerfeld
Читать онлайн книгу.
in which participating countries understand that standards applied to others can also be applied to themselves.
The human rights idea, as has often been pointed out, is not a totalizing doctrine. It is not a comprehensive blueprint for what to think or how to live. It deliberately leaves many areas open for individual and collective judgment, valuing people’s ability to decide important matters on their own. It is therefore compatible with a wide range of ethical, political, and religious viewpoints. All it does is erect certain limits: not to impose great suffering, not to stifle individual autonomy, not to treat persons as mere means, and not to deny equality of moral status.
Of course not everyone believes in human rights. Personal freedom is the value most frequently contested—whether in the name of tradition, community, or religion. Some of the fiercest and most determined opposition comes from religious fundamentalists who believe themselves authorized to coerce others into scripturally required forms of belief and behavior. This is a tyrannical attitude, rightly resisted, because it forces other people to conform their own lives to religious views they do not share. On the other hand, the conflict between autonomy and tradition is sometimes exaggerated. The right to autonomy does not prohibit individuals from adopting traditional lifestyles; it prohibits their being forced to do so. To those readers who might question a universal human right to autonomy, I would ask: Would you be willing to give up the right to autonomy, to let someone else dictate how you should live your life? If not, why would you be willing to deny that right to others?
It is a curious fact that arguments against universal human rights often draw inspiration from a principle central to the human rights idea. The principle is autonomy: living according to one’s own values. The idea of universal human rights is accused of being coercive, by imposing some people’s values on others. This gets things backwards. The human rights idea claims that individuals should be allowed to pursue their own vision of a good life.23 Insisting on universal human rights is not about imposing some people’s values on others. It is about preventing the imposition of some people’s values on others.24
The Force of a Human Rights Claim
Some people claim that human rights routinely or frequently conflict.25 For example, it is claimed that the right to privacy conflicts with the right to freedom of expression, or that the right to economic subsistence conflicts with the right to private property, or that the right to be presumed innocent conflicts with the right to protection from violent assault. However, I do not think this is the best way to understand human rights.
We name human rights by the interests they protect, but the content of a human right is defined by (1) the moral permissions granted to the rights bearer (“correlative permissions”) and (2) the duties assigned to other people (“correlative duties”). Neither correlative permissions nor correlative duties are unlimited. My right to life implies that I may defend myself from a violent attacker, that you have a duty not to kill me, and that a nearby police officer has a duty to protect me from being killed. But it does not permit me to raid other people’s bodies for their organs. Nor does it give you a duty to donate your liver or to block the assassin’s bullet with your body. Your reasonable interest in staying alive and remaining healthy limits the risk and sacrifice you must bear for the sake of my life. Diverse moral considerations extending beyond the interests of the rights bearer determine the content of the correlative permissions and duties.
When we say that someone’s human rights have been violated, our exact meaning is not that the rights bearer is unable to enjoy the substance of his or her right but rather that someone else has violated a correlative duty owed to the rights bearer. (Correlative duties tend to be more salient than correlative permissions in human rights discourse, because we usually have our attention drawn to human rights by the fear that they will be violated.) The concept of human rights violations refers not to prima facie rights (defined by the interest of the rights bearer) but to all-things-considered rights (defined by the boundaries of the right, that is, the reach of the correlative permissions and duties).26 The key point is that the characterization of an all-things-considered right, and therefore the definition of a human rights violation, is preceded by a consideration of all relevant moral factors. This is why human rights claims have a morally conclusive character. To cite a human rights violation is to classify the behavior and policy in question as morally unacceptable. Defenses are not allowed, because all defenses were considered prior to our classification of the behavior as a violation of human rights.
The articles of famous human rights charters sometimes limit themselves to the statement of a prima facie right. An example is the right to life in the Universal Declaration. Article 3 states: “Everyone has the right to life, liberty and security of person.” While the correlative duties are not spelled out, there is a tacit understanding that we know and agree what some of them are and could uncontroversially state them if asked. We find a more complete (though not fully complete) description of correlative duties in human rights treaties, constitutional bills of rights, legislative statutes, and judicial rulings. Even in the major charters, however, some correlative duties are spelled out. For example, Article 4 of the Universal Declaration states, “No one shall be held in slavery or servitude,” while Article 5 states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” This means that it is always wrong to practice slavery or inflict torture or ill-treatment. Note, however, that this is not all that the articles convey, because state officials have additional positive duties to protect persons from being enslaved and subjected to torture or ill-treatment. Several of these duties are spelled out in the 1926 Slavery Convention and the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
In ordinary discourse, if it is accepted that a policy violates human rights, this means that the matter is settled, morally speaking: the policy is wrong and must be ended. One implication of this is that human rights cannot (except very rarely) conflict with one another. Since violating human rights is morally unacceptable, it must be possible to live our individual and collective lives in ways that do not (except very rarely) violate human rights. If human rights routinely conflicted, violating human rights would become unavoidable, and we would lose the sense that doing so is morally unacceptable. So we must work out a conception of human rights in which the enumerated rights are mutually compatible. If we discover routine conflicts between human rights as we have conceived them, our conception needs to be revised, perhaps by pruning the correlative duties attached to certain rights, or by removing some rights from the catalog altogether.
It is sometimes said that courts are asked to resolve conflicts between human rights. I think it is more helpful to say that courts are called on to determine the contours of rights, where this sometimes entails tracing the boundary between rights. Suppose that a court denies a request from parents on religious grounds to deny a life-saving blood transfusion to their young child. Assuming that we agree with the ruling, how should we characterize it? Some might say that in this case the child’s right to life overrides the parents’ right to freedom of religion, but I think it is clearer to say that the parents’ right to freedom of religion does not include the right to deny a life-saving blood transfusion to their young child. I suggest that other apparent “conflicting rights” cases should be redescribed in this way.
The only occasion that could justify talk of conflicting human rights is a tragic conflict between two immovable moral considerations. The clearest case would be a conflict, in extreme cases, between two duties such that any action you choose would be morally wrong. In such a case, it is not just that each of the available actions has bad consequences, but that each act itself deserves moral condemnation: you cannot emerge from the situation morally unscathed. Perhaps there also exist, in extreme cases, conflicts between an undefeated obligation (e.g., not to harm another) and an undefeated moral permission (e.g., not to sacrifice a core interest). Some people deny, while others accept, that morality admits irresolvable conflicts of these kinds. If there are ever conflicts between human rights, they would manifest themselves in such situations.27
Tragic conflicts aside, human rights do not conflict. The more general point is that human rights should be asserted only with caution. Something’s being morally desirable does not make it a human right. Something