The Philosophy of Human Rights (Part II)

“The state must respect the freedom and autonomy of those fleeing violence by accepting them within its boundaries and offering them hospitality, which makes for a precursor to modern refugee law.”

Introduction

In a recent article for Merion West, I analyzed the history of human rights from their origin in the natural law tradition, and I also discussed critiques of this movement from both traditionalists like Edmund Burke and legal positivists such as Jeremy Bentham. However, there is a third tradition when it comes to understanding human rights, which is even more important for my purposes: the Kantian argument that rights flow from a respect for human freedom and dignity. This is the modern tradition which I sympathize with most, and it has strongly influenced my argument in my book Making Human Dignity Central to International Human Rights Law (available here). The point of rights, in this view, is to secure the conditions for dignified self-authorship. Before unpacking my argument, I will briefly summarize Kant’s contribution to our understanding of rights before defining the relationship between rights and dignified self-authorship.

Kant on the Relationship Between Human Dignity and Rights

The Kantian position is fundamentally different from the utilitarian-positivist and traditionalist approaches to rights discussed in the earlier article. Both of these positions—despite their considerable differences on other points—regard rights as being created by political or traditionalist actors. In Bentham’s view, rights were creatures of positive law and should be connected ultimately to advancing human happiness and reducing suffering according to the principles of utility. For Burkeans, rights existed—if they existed at all—because they emerged from a given tradition and took on a particular form. This meant that rights could be quite different depending on the context. As Burke puts it in Reflections on the Revolution in France:

“I flatter myself that I love a manly, moral, regulated liberty as well as any gentleman of that society, be he who he will; and perhaps I have given as good proofs of my attachment to that cause, in the whole course of my public conduct. I think I envy liberty as little as they do to any other nation. But I cannot stand forward, and give praise or blame to anything which relates to human actions and human concerns on a simple view of the object, as it stands stripped of every relation, in all the nakedness and solitude of metaphysical abstraction. Circumstances (which with some gentlemen pass for nothing) give in reality to every political principle its distinguishing color and discriminating effect. The circumstances are what render every civil and political scheme beneficial or noxious to mankind. Abstractedly speaking, government, as well as liberty, is good; yet could I, in common sense, ten years ago, have felicitated France on her enjoyment of a government, (for she then had a government,) without inquiry what the nature of that government was, or how it was administered? Can I now congratulate the same nation upon its freedom? Is it because liberty in the abstract may be classed amongst the blessings of mankind, that I am seriously to felicitate a madman who has escaped from the protecting restraint and wholesome darkness of his cell on his restoration to the enjoyment of light and liberty? Am I to congratulate a highwayman and murderer who has broke prison upon the recovery of his natural rights?”

But in both cases, rights do not enjoy moral status that exists independent of state or traditionalist actors.