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Despite extensive debate about the duties and rights of human beings,

philosophical consensus is unreachable on the basis of those rights listed in the various

international conventions or declarations

. 1

Nevertheless, a political consensus has

been reached on a list of human rights as enshrined in the UDHR and international

human rights conventions

.2

The main purpose of identifying a particular set of human

rights norms is to protect any individual from injustice and oppression

.3

Many people

have been unsatisfied with the notion that what is right or good is simply what a

particular society or ruling elite feels is right or good at any given time. Such unease

has generated a quest for enduring moral imperatives that bind societies and their

rulers over time and in different places. However, the problematical theoretical

inquiry focuses on the argument that those rights defined in the UDHR are applicable

to ‘any one’ because he/she is a human being and the rationale for what is accepted as

durable moral, human norms. Theories of human rights provide different answers to

such questions.

Religions have established moral imperatives that regulate relationships with

the rulers and among individuals. Although the term ‘human rights’ is not found in

traditional religions, theologies contain the basis for human rights. Acceptance by

traditional religions of one God as the divine source of laws, duties and rights, gives

rise to certain universal principles such as equality, justice and human dignity. With

the development of the notion of human rights, religious scholars from various faiths

have engaged in a process of reinterpretation of the holy texts in order to support the

diverse principles of equality and justice that lie behind international human rights.4

Accordingly, many theologians ground human rights in natural or divine bases,5 which

is instrumental and crucial for their diffusion and acceptance. Nevertheless, it has

been correctly argued that the legal development of human rights took place in a

climate of secularism in spite of the dominant Christian tradition in Europe, as

discussed later in chapter three. Traditional religions have challenged some aspects of

the universal human rights, especially regarding the rights of women.6

The notion of natural law goes back to the writings of classical Greek

philosophers and Roman thinkers, but was later developed when feudalism declined

during the Age of Enlightenment in Europe and secular theories of natural law arose.

Christian philosophers, such as Thomas Aquinas, placed enormous emphasis on the

natural law both as a reference to certain indisputable rights and as a part of the divine

law.7

The moral authority of natural rights as stemming from divine law was

challenged by political philosophers who searched for new, secularly oriented, bases of

natural rights. John Locke’s [1632-1704] notion of the social contract has greatly

impacted modem natural rights theory, with its manifestation of individualism and

universalism. The social contract notion was developed by Jean-Jacques Rousseau

[1712-1778], who viewed the social order as a sacred right that serves as the basis for

other rights.8 Based on his moral philosophy, Immanuel Kant [1724-1804] argued that

it is natural for the people to have rights and power.9 For Kant, the State and civil

society should exist side by side in order to preserve private individuality.10 Kant in

Perpetual Peace made the rights of man depend on republican government in which a

separation occurs between the executive power and a legislative power controlled by

the people.11 He anticipated global moral responsibility by which “a violation of rights

in one place in the world is felt everywhere.”

The French and the American

revolutions were inspired by the theory of natural rights and influenced by its views of

individualism, rationalism and universalism.

According to natural rights theory, all human beings equally have those rights

simply because they are human, without distinction of any kind. It is based on the

premise that there is a common identification with the whole of humanity, which gives

human rights its universal characteristic. Philosophers of the Age of Enlightenment

derived both the universalist and the individualist dimensions from their theory of the

state of nature.

Individualism is a principal feature of the theory of natural rights, in

which individuals come before communities in determining morals, as discussed later

in chapter three. It has been argued that the acceptability of the principles of human

rights comes from their justificatory discourse as moral rights rather than from legal

norms of positive moral practice. Thus, respect for human rights is demanded even if

the legal system does not recognize them

. 14

(Cultural relativity is dealt with in the next

chapter).

In looking at the philosophical foundations of major human rights

manifestations, including the French Declaration of the Rights and Duties of Man and

the Citizen, the Bill of Rights of the US constitution and the UDHR, it is noticeable

that those documents essentially express the European liberal, secular thought,

reflecting its views of the laws of nature. The list of rights mentioned in such

documents is at the heart of liberal concepts of the individual and the state. Human

rights, though, may be exercised by individuals against the state, giving them morally a

priority and superiority over society and the state

. 15

While the contemporary understanding of universal human rights norms is

evidently associated with the natural rights theory, the notion of authority under the

natural rights theory has been a source of criticism. The assumption that natural law

theory has the flexibility to accept new claims of rights based on contemporary

conditions and understanding has also provided a source of criticism towards this

theory

. 16

Such flexibility arguably aligns human rights closer to the theory of

positivism. Critics of the natural theory argued that diverse concepts of nature are

unclear and controversial, and they could beget various sets of rights.

The ulama in

Saudi Arabia, for instance, argue that their views on women’s rights reflect the nature

of women, as discussed later in chapter seven. Therefore, attempts have been made to

i o

frame the natural theory within minimum, core rights.

The theory of natural rights has not been left without other challenging

theories. The positivist approach assumes that all authorities are derived from laws

prescribed by the states and officials

. 19

Legal positivism emphasizes the enactment of

a system of law as the only source of laws of human rights, leaving no place for the

moral philosophical basis of human rights. For positivism, the UDHR and the UN

human rights treaties were a reflection of a positive set of rights, relying upon

deliberate human invention and agreement. Positivism offers greater flexibility to

meet changing needs by detaching human rights from divine revelations and from

human reason extrapolating from nature. Critics stress that positivism emphasizes

national sovereignty and questions the widely presumed moral, human basis of

universal human rights

.20

This approach stresses the role of the authoritative

21

structures, procedures and implementation of laws in order to protect human rights.

Natural and social sciences were developed in a quest to acquire better

understandings about peoples and their cultures and norms. In the context of human

rights, the sociological approach builds upon theories and techniques used in modem

social science in order to identify the empirical components of a human rights system,

which affect the failures or the successes in the protection of human rights.

A

guiding principle for sociologists in approaching human rights is their emphasis upon

interests, not only individualistic interests but also public and social ones.

Significantly, historical experience and prudential justification could provide major

elements for understanding the development of the modem human rights norms.

Various theories present different explanations on the basis of human rights.

The theory of natural rights, implying that human beings possess natural dignity and

rights, has been at the heart of propositions that international human rights norms are

universally applicable to all individuals in all cultures.

Regardless of their

philosophical justification, it is useful to emphasize that human rights have emerged

through long struggles and historical experiences and by reading rationally events of

the past. While the foundations of human rights may be arguable, the need to have

certain rights is paramount among individuals from various cultures. Accordingly, it is

essential to explore arguments on the cultural applicability of the international human

rights norms, which are fully investigated in the next chapter.