Principle of Liberty and Individual Autonomy
In the past, conceptions of basic human rights centred on the principle of liberty and autonomy of the individual in mind. Following John Stuart Mill’s ideas on the subject, for example, one can claim that autonomy is “one of the elements of well-being” (Mill 1859/1975, ch. III). Mill, born in 1806 and composing his most influential theories in the height of the Industrial Revolution, put forth his ideas during a time in which government intervention in the liberties of an individual was at an almost record low. Despite the obvious presence of ‘negative’ rights theory – legal prohibition of the impairment or injury of the freedoms of another – the idea that an individual would be expected to fulfill any form of positive obligation, even in order to protect said freedoms – or ‘positive’ rights – would be, based on this concept of rights, an interference with the single key right of autonomy. Legal theorist and legal positivism exponent H. L. A. Hart argued in favour of this notion, placing strong emphasis on the need for rights to protect personal liberty. Hart put forth the argument that the only absolute right to which all individuals have a claim is the right to be free, as this right does not arise through any societal agreements or interactions (Hart 1955/175). Every other right, therefore, is derived from a necessary interference with this crucial right. The first defined generation of human rights theory, then, was largely concerned with the protection of the individual’s right to liberty and autonomy – a concept put forth, largely, by western philosophers and seen in action most obviously in western societies like Victorian Britain and her European contemporaries.
Evolution of Western Human Rights
With time, however, we can clearly chart the evolution of western human rights theories away from this focus on personal liberty, increasingly favouring the protection of equality, evident in the emergence and subsequent espousal by most western governments – among others globally – of social and cultural rights. This introduction of positive rights theories, in the form of healthcare, social welfare and benefits systems, introduced really for the first time a legal obligation to perform positive actions, rather than merely avoiding those negative impairments of the freedom of others. The concepts of tort law regarding negligence and government protection of the weaker, underprivileged strata of society, for example, are underpinned by the transitioning acceptance of basic human rights as protecting, increasingly, not the liberty of an individual but the equality of a social system. However, the fact that three of the most landmark cases on Tort Law (Donoghue v Stevenson (1932), Nettleship v Weston (1971), Smith v Leech Brain & Co (1962)) (LawTeacher 2013), providing foundations for much of the modern law of negligence, were decided only in the latter half of the twentieth century should provide some indication of the relative novelty of the move towards more equality-based rights theories, as proffered by legal theorist Ronald Dworkin in his book Taking Rights Seriously (Dworkin 1978).
European Convention of Human Rights
In more recent years, though, particularly with the declaration of increasingly far-reaching Human Rights protections like the Universal Declaration of Human Rights and the European Convention of Human Rights, it is evident that the westernised concept of first personally, followed by nationally and societally concerned human rights has morphed into that of much more universalised, collective declarations of rights. Rather than working on a highly localised scale, these would take effect, ideally, as a globally recognised social framework; a universal set of principles, as it were, from which each state takes its ultimate authority. It cannot be doubted that these declarations have acted as significant forces for good, both on an international level and in individual legal cases. Regarding the european Convention of Human Rights, for example, the Stanford Encyclopaedia of Philosophy states that ‘The human rights set forth in the Convention are legally enforceable rights to which member states are bound. In creating the European Convention and Court, the countries of Western Europe gradually proved that effective protection of human rights could be provided at the international level.’ (Stanford Encyclopaedia of Philosophy 2003/2014). This concept has also been shown to have been successfully translated onto the personal level, as when the Convention, in the 1985 Malone case, defended the individual’s right in upholding that police needed a warrant to tap phones (rightsinfo.org).
On the other hand, though, the European Convention, and others like it, are by no means infallible. Even in the case of the European Court of Human Rights, which remains one of the most successful scenarios of practical enforcement of human rights, there have been numerous examples of failure to implement these more globalised, standardised rulings on human rights. In the 2005 Hirst v United Kingdom case (rightsinfo.org), for example, the ECHR declared that it was against Human Rights to prevent prisoners voting – and yet the UK government has failed to act on this decision since the ruling. If legal systems struggle, even in the relatively manageable-sized and culturally uniform European Union, to successfully implement a specified standard of human rights, then it seems that to do so on a global scale would be impossible without an almost impossibly comprehensive understanding of cultural nuance and variance. Dr. Seth Kaplan summarised the issue this way: ‘Models, ideas, and policies that are imported into a country without any consideration for local context can all too easily end up largely divorced from and autonomous of the societies that they are supposed to serve, producing consequences quite different from what was intended.’ (Kaplan, S. fragilestates.org)
Furthermore, despite the evidence of powerfully positive effects we have seen from the implementing of ‘human rights’, the issue remains conceptually frustratingly nebulous and, as James Griffin states: ‘The term ‘human right’ is nearly criterionless. There are unusually few criteria for determining when the term is used correctly and when incorrectly – not just among politicians, but among philosophers, political theorists, and jurisprudents as well.’ (Wacks 2008/72) The fact that it has become increasingly difficult to isolate what exactly is under discussion when the term is haphazardly bandied around political debate has detracted from the practical benefits of human rights application and has tended to relegate it rather to the realm of the philosophical and ambiguous, rather than the practical, results-driven thinkers.
Universally Applicable Human Rights
It cannot be denied that universally applied human rights, if implemented there, would have serious shortcomings. We must also accept that, while every civilisation that can reasonably be called humanised must endeavor to establish some code of conduct, the western world powers have remained practically unceasingly the loudest voices on the world’s political and philosophical stage – very possibly to the detriment of the quality and diversity of the global human rights debate. This extended period of power has rendered the western construction of human rights a definitive influence on the standard by which we as humanity define a large proportion of our concepts of ‘good’ and ‘bad’; whether behaviour is embraced or searingly repudiated. Despite the obvious presence of defects, however, the move over time towards more equality-driven and universally applicable human rights charters as seen in the western world must be credited for its undeniable potential. If we can retain the powerful practical benefits of smaller-scale application and avoid lapsing into an ambiguous discussion of big ideals, the universal application of a highly evolved, refined reconstruction of westernized human rights concepts could well be a huge force for good in the world.