History of the Question: Sidestepped by the UDHR

History of the Question: Sidestepped by the UDHR
Undoubtedly, one of the greatest causes for differences of opinion concerning human rights relates to the issue of the very foundation of human rights. This fundamental question influences important issues such as what constitutes a human right and how is human rights law to be manifested.

In an attempt to get universal agreement of the original drafting of the Universal Declaration of Human Rights back in the 1940s, the framers intentionally decided to sidestep this fundamental question.


As Bucar and Barnett write,
UDHR had a limited goal, to articulate the specific human rights that member states could agree upon. The limited nature of this project is reflected in French Catholic philosopher Jacques Maritain’s comment on the debates preceding its drafting: “We agree on these rights, providing we are not asked why. With the ‘why,’ the dispute begins.” The text of the UDHR follows Maritain’s advice, intentionally remaining vague and general on the “why” of human rights. The UDHR affirms that “the inherent dignity [of and] the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,” but bases these rights on an unnamed, unspecified, ungrounded “common understanding.”

This strategy on their part might have been considered very clever at that time, in order to derive some initial agreement on an innovated topic. However, the reality is that it was a flaw. Sadly, though, in general, this flaw has not been dealt with in an honest manner since.


As Bucar and Barnnett stated immediately after the above quote:
Following this early attempt to bracket any rationale for human rights, the world community has simply continued to agree to disagree, fearing perhaps that any discussion of the differences among the various rationales for human rights might undermine the consensus manifested in the UDHR.

In many circles, this attitude continues until today. Although at some general level there may be widespread agreement, the fact is that on substantial issues there are great differences of opinion,


as Weston noted,
[T]o say that there is widespread acceptance of the principle of human rights on the domestic and international plane is not to say that there is complete agreement about the nature of such rights or their substantive scope.

One must keep in mind that the contemporary human rights movement is about much more than simply some rights that must be guaranteed or laws that need to be passed. It has to do with an entire view of humans and it makes demands upon every society on earth. Furthermore, it makes great claims, such as, “Humans must have the right to X and Y.” This should lead to the following question that must be answered: Is there something so sacred or special about humans that each and everyone is deserving a special list of rights simply for being human?

The argument made here is that fundamental questions can no longer be ignored. Indeed, many of the concerns surrounding the contemporary human rights movement are founded upon core issues that have heretofore been left unanswered. Fortunately, more and more scholars are also recognizing this point and realizing that it may very lie at the crux of the issue of the success or failure of the human rights movement. The basis for these claims about humans cannot simply be assumed away or ignored.


Gutman was definitely hitting the point when he wrote,
What, pragmatically minded people might ask with some incredulityis at stake in the equally heated—and quite common--arguments about the metaphysical and moral foundations of human rights? These arguments—for example, about human agency, dignity, and natural law—tend to be quite abstract, and it may therefore be tempting to assume that not much of practical importance is at stake. But such an assumption would be rash. What is at stake in determining the foundations of human rights is often the very legitimacy of human rights talk in the international arena. If human rights necessarily rest on a moral or metaphysical foundation that is not in any meaningful sense universal or publicly defensible in the international arena, if human rights are based on exclusively Eurocentric ideas, as many critics have (quite persistently) claimed, and these Eurocentric ideas are biased against non-Western countries and cultures, then the political legitimacy of human rights talk, human rights covenants, and human rights enforcement is called into question.

Chris Brown perceptively takes the discussion much further than Gutman did.


He stated,
Virtually everything encompassed by the notion of “human rights” is the subject of controversy…. The idea that individuals have, or should have, “rights” is itself contentious, and the idea that rights could be attached to individuals by virtue solely of their common humanity is particularly subject to penetrating criticism.

This is a reality that human rights proponents must admit and face. They cannot hide behind beautiful sounding terms—like “human rights”—while in reality what they are proclaiming is nothing but a mere myth with no foundation to it whatsoever. The question of the foundation of human rights must be brought to the forefront if people around the world are actually expected to change their societies and even religion based on the human rights mandate.

In response to very fundamental questions, a number of theories have developed in order to justify the mere existence of a human rights platform. For example, in Orend’s introductory work on human rights, Chapter 3 is devoted to the question of the justification of human rights. Orend covers moral convention, personal prudence, Rawls’ renowned method, dignity, consequentialism, inference, vital needs and the duty not to harm. Actually, one does not even need to read the chapter to understand that these arguments are not very impressive—one can see that simply by their descriptions.

Orend’s own option is that of “pluralism” in the justification for human rights.  This view virtually recognizes that no one justification is sufficient and complete enough to justify the human rights argument, as each argument in itself has some defect to it. Hence, a combination of deficient arguments are accepted as justification with the expectation that by putting them all together the sum will be much greater than the rather weak total, like a lawyer presenting partial arguments to a jury to convince them of a entire picture.  Again, one must never lose sight, though, of the entire picture and long-run goals of the human rights movement. Entire religions and ways of life are being adjusted or modified in the name of this movement. Certainly, something more powerful than an analogy of a lawyer with perhaps circumstantial evidence should be demanded of the human rights proponents.

(Some have actually questioned whether there is any need to justify human rights. The demand for a convincing justification should be an even greater concern for the human rights advocates themselves. If they truly wish to have others follow their lead—without mere coercion, military threats, economic boycotts and the like, all of which make humans suffer more than they benefit humans —they should or must prevent some convincing argument for their stand. Given all that is at risk, a failure to do so only points to the weakness of their claims.)