/Human and Rights and Discourses: Is it definable finally? – Prof. Sanjoy Roy

Human and Rights and Discourses: Is it definable finally? – Prof. Sanjoy Roy

Prof. Sanjoy Roy – University of Delhi – INDIA


The popular discourse of human rights shows it in poor light but the idea of human rights is much more beyond that. It has been asserted that human right is standing on soft conceptual grounding and it has been just reduced to rhetoric. Many philosophers and legal theorists see the rhetoric as just loose talk and human rights with less intellectual strength and less strong teeth. It seems that human right activists seem more concerned with changing the world rather than interpreting it. The reluctance on the part of activists is understandable given the urgency to respond the terrible sufferings (Sen, 2009). But, despite all of this, society is unimaginable without the provision of rights. A right in its acute sense means the liberty to pursue one’s own conception of good. It entails claim to those good needed for one’s well-being as opposed to merely the liberty to engage in one’s own pursuits..

Understanding Human Rights
The concept of human rights has emerged from the concept of rights. There have been many western scholars with different sets of theory of rights like John Rawls (1921-2002) and Robert Nozick (1938-2003). In the liberal-individualistic theory of rights, Ronald Dworkin has given new insights. Dworkin in his work Taking Rights Seriously (1978) attempted to create a new theory of politics based on the adequacy of moral rights. Marx has regarded rights as a bourgeois concept and described at length that how rights are linked to politics and seems abstract (Gandhi, 2007). Louis Henkin observed rights as ‘claims’ rather than charity (Verma, 2002).

Existence of human rights has a long history. Philosophers traced such ideas back to classical Greece, in particular to Socrates, Plato, Aristotle, also in some respects to Confucious in China. Even it was in India since Veda, Upanisad and other religious sects and texts since thousands year back. In a common concern of these philosophers was to finding way to achieve a society in which people were able to live fully human life.

Even contemporary understanding of human rights has emerged during the modern period in Europe especially in 18th and 19th centuries. Say for example, at the heart of Kant’s approach was the values of human agency and autonomy. For Kant, all human beings are of equal moral worth, with all being entitled on these grounds alone to moral dignity. Kant argues that all people have an ethical duty to each other, to act in a ways that respect and uphold humanity.

All the debates and theory has generated the ground of human rights. Now let’s move from the concept of rights to human rights.

uman rights have been understood as ‘basic moral guarantees that people in all countries and cultures possess simply because they are human’. Human rights are universal in nature. The moral doctrine of human rights aspires to recognise the fundamental prerequisites for each human being for a good life. This aspiration has been refl ected in various declarations and legal conventions commencing with Universal Declaration of Human Rights (1948) followed by the European Convention on Human Rights (1954) and the International Covenant on Civil and Economic Rights (1966). These three documents constitute together the centrepiece of a moral doctrine of human rights (Gandhi, 2007). Jack Donnely has regarded human rights as the new standard of civilization (Verma, 2002). Hence, human rights are inalienable and inherent rights of humans. Let’s now move to Indian context of human rights and its legality.

Complexity of Human Rights
Baxi (2005) has articulated at length what constitutes human rights. He says that there is no simple answer to a clear question: what are the rights of human beings. He further says that in defence and justifi cation of human rights, we have produced “complex and contradictory discourses”. Even the global consensus on human rights values serves as poor guides in translating idea into law or practice. In his book, The Future of Human Rights, Baxi (2005) has made us familiar with the complexity in the meaning of human rights and described human rights as: (a) ethical imperatives; (b) grammar of governance; (c) language of global governance; (d) insurrectionary praxis; (e) juridical production; (f) culture. It actually highlights the ambiguities in conceptualising and practicing human rights. But few scholars like Amartya Sen (2009) has tried to understand this dilemma and mentioned that “the framers of Universal Declaration in 1948 clearly hoped that the articulated recognition of human rights would serve as a kind of template for new laws” (p. 359). The emphasis should be on new legislation not just mechanical interpretation.

Human Rights
The Indian Constitution is in congruence with United Nations charter, Universal Declaration of Human Rights (UDHR) and several other international covenants as they all lay emphasis on human dignity. The constitution of India assures dignity of the individual which is a core value in its preamble. Even the constitution of India was drafted at the same time as the Universal Declaration of Human Rights and that is why, it has resonance of similar provisions. This becomes obvious when we look at the Part- III of the Indian constitution and articles 2-21 of Universal Declaration of Human Rights. The Part-IV of the Indian constitution which contains Directive Principles of state policy also has refl ection of articles of 22-28 of the UDHR. So, it can be said that Indian constitution has enormous scope to protect and promote human rights and the Supreme Court of India has been at forefront to protect the human rights inherent in fundamental rights. The importance of fundamental rights can be imagined by that is not only available to citizens of India but also non-citizens and it establishes the relevance of rights in the times we are living.

Human rights in the 21st century
Baxi (2005) has mentioned that twentieth century of the Christina Era (latter half) is hailed as an age of human rights but what about twenty-first century issues of human rights. It has been asserted that human rights discourses are much about civil and political rights which constitutes first generation of rights. Though first generations of rights are necessary prerequisite for a just society, but they do not reaches to the point of social justice. Hence, a shift towards second and third generation of rights is required (IGNOU, 2010). There is also a growing concern towards overhaul of the conception of human rights. Ife (2001) has proposed reconstruction of human rights towards the post-modern context.

There seems to be a stark paradox between promise and practice. Everyday there is a story of human rights violations, leave alone the unreported. It seems the dignity and respect has no meaning in contemporary life and has thrown to winds. Gandhi (2007) says that “the preponderance of different institutional frameworks and social systems along with inadequate resources make it impossible to comply” to national and international conventions (p. 139).

UDHR and Three Generation of
Human Rights:
World War-II and creation of Universal Declaration of Human Rights: Devastation after World War II, UNO had created Universal Declaration of Human Rights to provide the guidelines to states to follow and to protect the incidents of human rights violations.

First Generation HRs: Civil & political rights such as right to vote, practice religion, freedom of speech, equality before law.
Second Generation HRs: Social, cultural and economic rights such as, right to food, clothing, shelter, housing, employment, health, education.
Third Generation HRs: Community and collective rights such as, right to social and economic development, express own’s culture, to enjoy natural world free from pollution.

Human Rights Narratives:
Some Questions
Through the above discussions, it is pertinent to reflect upon some valid questions which might be debated to intellectual forum. But, we must try to find out some answers through analytical and reflective thought process. And I think and argue that as intellectuals, we must try to do that. The questions are as follows:

Whether development of human
rights is a process?
There has been tremendous growth in human rights over the past thousands of years, incorporating religious, cultural, philosophical, and legal developments over time. All human beings are entitling to certain rights simply because of their existence; those rights are known as human rights. These rights survive for all humans equally, universally, and indefinitely. According to Kant, human beings have a unique intrinsic value that cannot be found in inanimate objects. Violation of a human right is therefore an act of disrespect for the value of human life. Human rights are a concept that has evolved continuously throughout history. (Fasih, F., N.D.)

Human rights demand to acknowledge and take into account everyone’s self-respect so that everyone is protected against ill-treatment that sabotages their self-esteem, and has access to the opportunities needed to recognize their full potential, free from discrimination. Human rights development is a process in which people’s options are clarified and human capabilities provided. In addition to the government, individual citizens must act as guards to ensure the rights are protected. Every country needs human rights for development and stability. These rights have become even more important in our technologically advanced world as they protect people not only from the ill effects of change, but also ensure that they can use certain benefits as a citizen of the country. (Kapur, A., 2019)

Human rights have been negatively and positively impacted both in the past and in the present. As technology progresses, one must ensure they use these rights logically. Human rights play an important role in deciding the kind of future we want as we move forward into the 21st century. Recent human rights are characterized by state sovereignty and promote liberty and the right to property, ideas that complement life in liberal societies. It is therefore, important that human rights shape the development of new possibilities. Human rights are regarded as a codification of moral behavior that is the product of human social evolution (associated with Hume’s theories). According to the sociological theory of law and Weber’s work, human rights are also seen as a pattern of rules. Different approaches define society, such as the notion that individuals accept rules from legitimate authority in exchange for security and advantages – the concept of a social contract. (Wikipedia contributors, 2022) Therefore, human rights are an evolutionary process that began to reform the concept of security.

In order to ensure adherence to a universal standard of acceptability, great importance has been placed on international conventions and their implementation. These principles are gaining importance not only because of globalization and the introduction of new technology but also because they protect human beings from the ill-effects of change as well as ensure that everyone benefits equally. Science and technology advancements, in particular, pose large risks that can severely hinder the implementation of human rights if not handled carefully. For example, in the field of biotechnology and medicine is particularly in need of incorporating human rights into their ethical codes and ensuring that basic human dignity is upheld under all circumstances. For instance, when organs can be transplanted from the living and the dead, various issues arise such as consent, defining death to prevent premature harvesting, and ensuring that all children are eligible for transplantation. A key aspect of this Convention is that it puts the welfare of the human being ahead of the welfare of society and science in order to deal with these issues. In spite of this, many countries in one or more ways are violating human rights and disregarding basic human dignity, raising questions about the efficacy of today’s mechanisms. Politics, power equations, and other factors often prevent the wrongdoers from being held accountable. Violations of this type, when they are not checked, are prone to increasing in frequency and intensity, typically because the perpetrators believe they will not be punished.(Fasih, F., N.D.)

Can UDHR be valid for all time?
The Second World War remains the deadliest conflict in history. The 1948 adoption of this magnificent and noble document was a result of not only the horrors of war and genocide, but also the economic depression of the 1930s. As a result of a growing demand and recognition by all countries, there was an impetus for developing a framework to prevent the atrocities that took place during the war as well as the terrible hardships that preceded and followed it. Consequently, the UDHR was intended to cover the entire spectrum of human rights: civil, political, economic, social, and cultural.( Green, C., 2018)

In the age we live in, the key question is why are human rights abused and ignored repeatedly throughout the world? It is quite impossible to universally enforce these rights or to punish transgressions despite being highly authoritative and respected, the UN and the UDHR are mere declarations, not hard laws. Some critics considered that it’s naive to think that human rights are a giver in a world where state interests are so powerful that the UN is mostly responsible for monitoring and investigating violations but can’t force states to change laws or compensate victims, because the UN can only observe and probe violations but cannot force states to change their policies or compensate victims. Human rights laws are defended by others as vital because they provide international standards and help activists with their campaigns. Moreover, they explain that not all International Human Rights are powerless, for instance, the European Convention for Human Rights, which established a code which 47 member countries and their citizens could use to bring cases. The court issued binding decisions and each member state must abide by them. (Chisvo, L.C., 2020)

The significance of a declaration depends on how strictly it is adhered to. A universally endorsed document like the UDHR certainly has influence, and it can change the behavior of actors who might otherwise appear to stand against history and civilization. In addition, citizens and the international community can use it as a normative weapon to shame hypocrites who violate the principles they and every nation in the world have agreed to. Even so, it is simply a document, and unless it is backed by strong international institutions that assure implementation and compliance, it is unlikely to have a significant impact. UDHR and all other UN declarations are aspirational. The principles embody ideals and goals, but by themselves do not provide a framework for the achievement of these goals. The UDHR does not include any mechanism for monitoring progress or supporting the implementation of its aspirations. Despite universal acceptance of the declaration, the reality is that the people enumerated in the UDHR still reside within states and that each state remains sovereign. Human rights defenders can try to change laws and policies to implement these principles, but states are ultimately responsible for institutionalizing these principles. State volitional implementation and enforcement of human rights protection is fundamentally flawed in any international declaration. (Ozler, S.I., 2018)

While the road to progress is not always clear, it is clear that rights must advance together. Some rights cannot be privileged over others. A world without free speech or self-determination, in which everyone is materially comfortable and cared for, would be unwelcome. In the same vein, we are against a world in which people have the right to vote and assemble, but do not possess the basic economic necessities to exercise them. Human beings are endowed with a variety of fundamental rights that are listed in the UDHR. By recognizing some rights and ignoring others, the entire project is undermined. (Ozler, S.I., 2018)

Therefore, in the natural law perspective UDHR is valid all time since these rights are inherent to the human race but practically its validity remains in the hands of the state powers when we specifically talk about the document.

Do we need to focus on the social
or the biological nature of human
There are many different approaches to psychology today, including one in opposition to another. Biological psychology, for example, tends to emphasize the relevance of genetics and biology. As opposed to behaviorism, which emphasizes the impact of the environment on behavior? Historically, debates about the relative contribution of nature versus nurture have been one-sided with one side bringing up nature the biological factor as the most significant factor and the other bringing up nurture the sociological factor as the most important aspect. Today, most experts realize that nature and nurture are critical factors in determining human development. Not only that, but they also realize that nature and nurture interact in many ways throughout life. Descartes and Plato are two philosophers who thought certain things were inborn or arose naturally regardless of environmental influences. (Cherry, K., 2020)

According to natives, all or most characteristics and behaviors come from inheritance. All of our characteristics, as well as our behaviors, are attributed to evolution according to advocates of this approach. Individual differences are influenced by the genetic traits passed down from the parents. Other thinkers such as John Locke believed in tabula rasa, the notion that the mind is a blank slate. In this theory, everything we are, as well as all our knowledge, is shaped by our experiences.(Cherry, K., 2020)

According to empiricists, all or most behaviors and characteristics can be attributed to learning. Behaviorism is an example of an empiricism-based theory. Behaviorists believe there are no actions or behaviors that cannot be conditioned. According to John B. Watson, people could be trained to do and be anything regardless of their genetic makeup.(Cherry, K., 2020)

For example, Hereditability is studied in twin studies, which are common in nature versus nurture research. Studies involving twins have examined identical twins who share 100% of their genes and non-identical twins who share 50%. Within these studies, twin sets are reared separately and together in order to evaluate their characteristics in both like and alternative environments. Studies of twins are conducted to determine whether nature or nurture plays a greater role in development. Research revealed that nature and nurture influence traits differently. A study found that personality and religiosity are influenced by half genetics, whereas intelligence is influenced by 75% genetics and 25% environmental factors. (Perry, C., 2020)

Environmental influences can influence certain characteristics. Parenting styles and experiences can have an effect on how a person behaves. For example, observing other children’s aggressive behavior might teach one child to say ‚please‘ and ‚thank you.‘ Another child might learn to be aggressive by observing older children on the playground engaged in violent behavior. A popular empiricist theoretical approach within psychology is Albert Bandura’s social learning theory. This theory contends that people learn from observing others‘ behavior. Bandura demonstrated through his Bobo doll experiment that children could learn aggressive behaviors simply by observing others acting aggressively.

The vast majority of people in modern times don’t share the extreme perspectives of nativism and empiricism. As a result, they do not view from a nature-versus-nurture perspective. Instead, the two views are considered „AND“ one another, such that they cannot be separated. They play off each other. A particular trait will not necessarily be expressed due to genetics or environment alone. A person who consumes high amounts of junk food and rarely exercises, for example, may avoid heart disease due to their genetics counteracting their unhealthy lifestyle habits. Activating certain genes requires specific environmental conditions.(Cherry, K., 2020)

According to most experts today, both nature and nurture play a role in influencing behavior and development. Even so, the issue continues to be a contentious issue in many areas, for example in the debate on origins of homosexuality and influences on intelligence. The degree to which environment and biology influences behavior is still a subject of debate among experts and researchers despite the relatively low prevalence of extreme nativist or radical empiricist opinions. A genetic factor interacts with another factor, an external factor such as a social experience or culture, as well as the interaction of genetic and external factors. In recent years, more researchers are focusing on understanding how genes influence environment, and vice versa.

Do human rights have to be expanded
or redeveloped?
It is true that human rights have slowly become widely accepted since the mid-20th century, and many people are now aware of how they can be used when they feel threatened. While these rights have been around for a long time, the contemporary understanding of them can be traced back mainly to 1948. During this time, the Universal Declaration of Human Rights (UDHR) came into effect. As a result of the devastation caused by World War II, this document sought to facilitate a new world order. All people are born free and equal. In a nutshell, it ensures that states protect such rights as the right to life, to freedom from torture, to work, and to a sufficient standard of living.

Over the last few decades, these promises have been embodied in international treaties, such as the 1966 International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, and in regional instruments like the 1950 European Convention on Human Rights. Recent years, however, have seen states reconsider their position. Donald Trump has flouted international human rights commitments in the US during the first months of his presidency, most notably through a controversial travel ban targeting travelers from mainly Muslim countries and refugees. Since the Paris terror attacks of 2015, France has been in a state of emergency which heightened security and police powers. (Henery, M., 2017)

According to reports, in India sexual assaults against women and girls, including those with disabilities, increased in 2012. Police sexual abuse in custody has yet to be investigated and prosecuted by the government. Former world champion swimmer Pinki Pramanik was arrested on rape charges in June 2012. Her rights to dignity, dignity, and privacy were violated as a result of the mistreatment she received from male police officers and the „gender determination“ tests they conducted. A video showing some of her abuse has been released. (Kalita, B., &Medhi, B., N.D.). Many more similar cases can be found all over the world.

People are calling for the Human Rights Act to be scrapped in the UK. Also, the issue of whether the UK should retain human rights protections after leaving the EU is uncertain ahead of Brexit. In a world where human rights are undergoing rapid change, this raises important questions about what they are and how they should be governed. When should these rights be adapted to meet our current needs? How should future human rights be structured? Human rights are no longer tenable as they were conceived in the 1940s and 1950s. Human rights need to be reassessed and redefined. If not, the government may impose it on us.

As Utopian ideals, human rights provide a model for thinking about what we want our future to look like. The post-war foundation of the organization was built on this element, which is still important today. Nevertheless, an alternative vision need not be incompatible with liberalism, capitalism or Statism, as was the case with human rights during the 1940s and 1950s. The current instruments of human rights were defined by states and uphold the constitutional rights to property and to individual liberty, ideas that are compatible with life in liberal, capitalist societies. It is possible to imagine a new utopia using human rights instead. In order to address the problems of the present we may need new ways of living, of being, and of constructing society. During the 20th century, these approaches were often used to think about societies that displaced the state as the center of the economy. Human rights could be defined and protected collectively by the people rather than by the government. Human rights need to be viewed as collective rather than individual rights. This would help us think about ways to structure society that go beyond a focus on individuals, which is characteristic of liberal and capitalist paradigms. In order to achieve this, members of a group may be empowered to assert their human rights rather than as individuals. In the context of indigenous groups and cultural identity, this concept has been employed, but it could be further developed to conceptualize other issues in a collective manner. Consider, for instance, that rights may be used to begin considering healthcare as collective, with various protections and responsibilities held and discharged in relation to others as opposed to purely individual rights. These actions would produce a modern Utopian vision of rights, based on very different relationships from those in which we currently live. To make the right changes for today’s world, human rights must become tools to fuel critical debate and discussion in the present. They must help to create an entirely new vision of the future rather than repeating that of the past century. As a result, human rights can emerge not as something of the past, but as an integral part of the future.(Henery, M., 2017)

Can human rights be
In a pluri-cultural multipolar world universalization or having a universal definition of human rights is in itself a big question today. Human rights are not simply an exclusively Western concept – ignoring the very different cultural, economic, and political realities in other parts of the world – as some claim. The international conventions of human rights do ignore the customs, socio-cultural and religious patterns of the third world countries to a great extent. The concept framed also spurs questions of duality and puts individuals into a dilemmatic position, for example, in 1993 Bombay bombing Yakub Memon was convicted over his financial involvement in the bombings that took over 257 lives, this particular case left the opinions divided wherein most people upholded the human rights of the ones who suffered majorly from the bombings and thus wanted Yakub’s punishment for the same while on the other hand there were a different bunch of people who defended Yakub’s human right and were of the opinion that punishing Yakubwith a death penalty would be a violation of his human right. Hence, upholding one’s human rights might lead to violation of another’s leading people into a confusing state.

Another challenge to the concept of universalization of human right is of cultural relativism. Some of the human rights norms that the West considers universal are not applicable to other cultures. According to this argument, human rights are a product of Western culture and therefore should not be applied to other cultures. For example, in the Indian culture the Vedas tend to believe in duties more than rights while in the African Culture community living is encouraged more. Therefore, placing more importance on individual rights rather than community rights is what again is not acceptable to be in the defining parameters of Human rights.

Human rights are just the façade for US interests, claims Samir Amin (2004, 78).In the context of the 2003 invasion of Iraq, concern about neo-imperialism and human rights has risen strongly, since the US has not promoted human rights in Kuwait despite being there for decades. This clearly points towards the limited conceptual definition that the west had imposed on other countries. There is an argument among developing nations that some human rights, such as the right to political multiplicity and paid vacation time, do not apply to their societies – in this case, the right to equal rights for women. Some societies consider „universal“ human rights to be little more than an attempt to impose alien Western values on them, rather than simply believing they cannot provide certain rights to all their citizens.

On the religious front, there are examples of countries that had different opinions regarding human rights according to their religious belief. For example, as far as Saudi Arabia is concerned, the Universal Declaration of Human Rights violates the precepts of Islam according to them, and the Islamic law of Saudi Arabia protects more human rights than the Declaration. This is the reason why Saudi Arabia did not comply with the concept of human rights as laid by the Western world.

With the concept of human rights, the notion of development evolved; de-colonization and self-determination progressed in tandem with the desire to improve the standard of living of subject populations. When confronted with a billion human beings who are starving, underprivileged, suppressed, troubled, uneducated, and unemployed all over the world, the idea that human rights may be guaranteed simply by lacking government interference is unsustainable and indefensible. I am sure that there can be no debate as to the fact that social and economic exploitation are just as evil as political or racial persecution. We need a deeper & logical understanding and thought process of human rights and more progressive development. The universality of human rights depends on their compatibility with cultural differences, ethnic values and religious concepts, universalism should not be seen as a ‚fixed‘ platform rights and community (culture) can and should „coexist“. I also feel it is the ultimate truth about it. Hence, a definition per say of human rights though theoretically might be possible but practically one needs to consider all the above mentioned aspects before coming to one particular definition which then can be universally circulated and implemented thereafter. ‘Hope is truth’, let’s hope truly.

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