Term Paper: Human Rights, Beyond Intervention

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[. . .] For these critics natural rights are merely a form of social construction, which has been manufactured and has no intrinsic and unassailable worth. This view is expressed by the school of thought known as Legal Positivism. Legal Positivism is applied in contemporary jurisprudence and its philosophy of law and central thesis is that the laws are rules that are made and created by human beings and that there is no inherent or necessary connection between law and morality. Legal positivism is based on social conventions and denies any inalienable basic human rights. Also, "Legal positivism is a conceptual theory emphasizing the conventional nature of law. Its foundation consists in the pedigree thesis and separability thesis, which jointly assert that law is manufactured according to certain social conventions." (The Internet Encyclopedia of Philosophy)

Positivism arose in opposition to the idea of natural rights in its classical sense "according to which there are necessary moral constraints on the content of law." (ibid) The rise of positivism is also linked to the history of philosophy and ideas in the Western world. Science and the rise of secular societies in the world had a far reaching impact on all aspects of human life. With the discoveries in science humanity felt more confident in asserting its own laws and visions and felt less dependent on religious, ethical and moral concepts from the past. Natural laws were seen to be outmoded and superseded by a more "positive" and independent mode of thought, which was created by human beings and not "discovered." "The word 'positivism' was probably first used to draw attention to the idea that law is "positive" or "posited," as opposed to being "natural" in the sense of being derived from natural law or morality." (ibid) This viewpoint can be seen in the Pedigree Thesis, which asserts that legal validity is a function of certain social facts. Legal Positivism therefore stands in direct opposition to the tradition of natural law. In other words, Legal Positivism is a radical break from the idea of inalienability. "Legal positivism claims incorporates the separation thesis: the idea that legal validity has no essential connection with morality or justice." (ibid) In Western philosophy, legal positivism begins with the work of Jeremy Bentham, the philosopher of utilitarianism, who in turn borrowed concepts from Thomas Hobbes.

History and human rights

The conflict between these two views of human rights can best be understood against the background of the history of thought and the changing contemporary worldview. The idea of basic or natural human rights has its origins in the Greek philosophies and views of Life.

Greek religion and political culture provided the antecedents of claims to universal law that undergird our modern conception of human rights. Early Greek cosmologies viewed humanity as existing within the transcendent harmony of the universe, stemming from the divine law (logos) and linked to human life in the law (nomos) of the polis, the city-state. www.questia.com/PM.qst?a=o&d=89012293" (Devine and Hansen 4)

The idea of natural law is expressed by the Stoic philosophy and understanding of Law. "Stoics taught that all humans shared a spark of divinity and that the earth and cosmos belonged to one indissoluble process. As such, humans must live consistent with the laws of nature, under the guiding principle of reason. www.questia.com/PM.qst?a=o&d=89012295" (Devine and Hansen 6) This view of human nature suggested that there was a larger moral and theological dimension to human life that superseded human rules and laws. This viewpoint also applies to the Christian world view:

the notion of the immutable rights of individuals goes back to the Christian belief in the autonomous status and irreplaceable value of the human personality. www.questia.com/PM.qst?a=o&d=65197319" (Perry M.J.

Perry summarizes this situation as follows:

every human being is sacred -- each and every human being is "inviolable," has "inherent dignity and worth," is "an end in himself," or the like. According to the second part of the idea, because every human being is sacred (and given all other relevant information), certain choices should be made and certain other choices rejected; in particular, certain things ought not to be done to any human being and certain other things ought to be done for every human being.

(Perry, M.J. 4)

However, many people see the idea of natural law as fiction with no actual basis in reality.

Several scholars are challenging the legitimacy of the concept of natural rights. Some, like Alasdair MacIntyre, have gone so far as to call them nothing more than "fictions." These authors contend that the origins of natural rights are, in fact, illegitimate; they argue that these rights do not emerge from, do not inhere in, and are not continuous with any long-standing valued tradition.

(Keenan J.F.

The idea of rights as "fictions" has their origins in the change in contemporary world views. The Twentieth Century was a time of reassessment and reappraisal of human values and thought. This came about as a result of many factors, including a loss of faith in authority to events like the First World War and a questioning of traditions in science, religion and ethics. This reassessment of human nature and reality is still ongoing and many postmodern theorists view human rights as mere constructs that are relative to social and political factors and have no universal or enduring reality..

Within these two basic positions there are also other views that attempt to provide a more practical interpretation of basic human rights, which does not merely regard human rights as a function of law while at the same time trying to integrate the idea of underlying moral values. One of these attempts is the vision of human rights as stemming from cooperative human relationships.

What is a human right? A human right is a relationship arising from our nature as human beings that entitles an individual to certain conduct from all others. It is a contractual right flowing from the social contract that imposes upon all others the necessary and universal duty to act or refrain from acting in a certain way. A human right, however, should not be confused with a possession, like an apple or a house. Nor should it be equated with a human power, like the power to think or see or live. Rather, a human right is a relationship between an individual and all others that entitles a person to certain conduct from every other person and from society. You have the power of life, but the right to your life is created when all others promise not to kill you.

Robert, G.)

In the final analyses one has to see the issue of human rights against the background of changes that occur in society's perception and social values. The emergence and dominance of a secular form of society in contradistinction to a moralistic or theocratic society has changed the way we see the world. However, a purely positivistic view of human rights opens the way for abuse from various power structures and denies the inalienability of basic human rights. Possibly the answer to this dilemma lies in establishing a distinctive definition of what is truly meant by human rights; a unique synthesis of the two different viewpoints so that basic human rights can be understood as being both a function of society while simultaneously including the concept as part of the common moral structure of humanity. In essence the argument about basic human rights and whether they can be formed independently of outside influences chiefly depends on the larger issues of how humanity defines itself in a philosophical sense.


Adler M. On Inalienable Rights. The Mortimer J. Adler Archive


Devine, Carol, and Carol Rae Hansen. Human Rights: The Essential Reference. Phoenix, AZ: Oryx Press, 1999.

Grant R. The Social Contract and Human Rights.

The Humanist; 1/1/2000

Keenan, J.F. "The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150-1625." Theological Studies 59.4 (1998): 729.

Onelook Dictionary Search. Acceded May 7, 2004. http://www.onelook.com

The Internet Encyclopedia of Philosophy. Accessed: May 7, 2004. http://www.iep.utm.edu/l/legalpos.htm

Perry, M.J. The Idea of Human Rights: Four Inquiries. New York: Oxford University Press, 1998.

Robert, G. The Humanist; 1/1/2000.

Wikipedia: human rights. Accessed: May 8, 2004. http://en.wikipedia.org/wiki/Human_rights

Wikipedia: Libertarianism. Accessed: May 8, 2004. http://en.wikipedia.org/wiki/Libertarianism [END OF PREVIEW]

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