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
. 1Nevertheless, a political consensus has
been reached on a list of human rights as enshrined in the UDHR and international
human rights conventions
.2The main purpose of identifying a particular set of human
rights norms is to protect any individual from injustice and oppression
.3Many 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
. 15While 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
. 16Such 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
. 19Legal 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
.20This approach stresses the role of the authoritative
21