Human Rights: philosophy and institutions
Dr. Sirkku K. Hellsten
I
AIMS AND OBJECTIVES
This course covers the theoretical and philosophical foundations, as well as various international and
cross.cultural perspectives of human rights. The lectures critically discuss the liberal theories of human
rights and their critics both historically and in the present time. Utilitarian, Marxist, Asian, African and Islamic
critiques of and approaches to human rights will be explored. The final lectures cover the contemporary
proposals for the rights of key groups of minorities, women and children. It also introduces the students to the
main human rights instruments as it goes along the historical and philosophical aspects of human rights
thinking and doctrines.
COURSE SUMMARY:
Topic 1
Philosophical foundations of Human Rights
Topic 2
Utilitarian critique of human rights
Topic 3
Marxist critique of human rights
Topic 4
Three generations of rights
Topic 5
Cultural relativism and the Asian critique of human rights
Topic 6
African foundations for human rights
Topic 7
Islamic foundations for human rights
Topic 8
The rights of minorities as human rights
Topic 9
Women's rights
Topic 10
Main human rights institutions
READINGS
Two key publications accompany this module and are recommended for purchase. They are:
* Smith, R.K.M. and van den Anker, C. (eds), 2005, The Essentials of Human Rights, London: Hodder
Arnold
# Centre for the Study of Global Ethics Summer School on Human Rights, Week One: Human Rights
Theory and Debates, Reading Pack (available when the course starts)
All of the key readings for this module are covered between these two publications. Readings marked * are
in the Essentials of Human Rights and those marked # are from the dedicated course reading pack. Reading
back as well as the The Essentials of Human Rights. will be available at the Social and Moral Philosophy
department office on Friday 1.2. for copying purposes. Otherwise most of the key readings are available at
the university libraries. A wide variety of other additional and further readings are also suggested for each
topic below, but these are not course requirements.
1
Topic 1: Philosophical foundations of Human Rights
Topic 1 examines some of the philosophical foundations of modern notions of rights by looking specifically at
the Natural Rights theorists of the seventeenth century. We will discuss various conceptions within this
tradition, and examine in more detail what is understood by the notions “State of Nature”, “Natural Law” and
“Natural Rights” and "the Social Contract". Secondly, we will discuss current philosophical justifications of
human rights focusing on the extent to which they rely on natural rights. We will be assessing their validity
and question how the philosophical dispute over the origins of human rights is related to the current issues of
global justice.
Key Questions:
1.
Do human beings have any natural rights?
2.
Does Natural Law provide a defensible foundation for rights?
3.
What philosophical foundations do human rights have?
Key Readings:
#
Shestack, J.J., 1998, ‘The Philosophical Foundations of Human Rights’, Human Rights Quarterly, 20,
201-234
#
Fagan, A., 2004, ‘Human Rights’, in Internet Encyclopedia of Human Rights, available at:
http://www.iep.utm.edu/h/hum-rts.htm [Accessed 3 June 2005]
*
Freeman, M., 2005, ‘The Historical Roots of Human Rights Before the Second World War’, in R.K.M.
Smith and C. van den Anker (eds) the Essentials of Human Rights, London: Hodder Arnold, pp. 151154
Topic 2: Utilitarian critique of human rights
Topic 2 explores the philosophy of utilitarianism, which is a branch of the liberal tradition which is critical of
human rights. Specifically, we will look at Bentham's claim that talk of human rights was 'nonsense upon
stilts', and evaluate his critique of rights. More generally, we will debate the alleged anti-individualism of
utilitarianism as a 'consequentialist morality' -- i.e. one that is concerned with outcomes, and the
maximisation of the 'general good', rather than individual freedoms. We will include historical texts and
contemporary versions of utilitarianism in our deliberations, assessing whether or not modern utilitarians
have adequately dealt with the objections raised against Bentham’s and Mill’s original versions of the theory.
Key Questions:
1.
What are the basic principles of a radical utilitarian critique of human rights?
2.
In what way was Bentham's positivism part of his precisely formulated version of utilitarianism?
3.
Should the general good take precedence over individual freedoms?
4.
Can we reduce morality to a 'moral calculus' of maximising pleasure and minimising
pain?
5.
Could a utilitarian defend human rights?
Key Readings:
#
Lyons, D., 1984, ‘Utility and Rights’, in J. Waldron (ed) Theories of Rights, Oxford: Oxford University
Press, pp 110-136
*
Law, I., 2005, ‘Utilitarianism and Human Rights’, in R.K.M. Smith and C. van den Anker (eds) the
Essentials of Human Rights, London: Hodder Arnold, pp. 356-358
Topic 3: Marxist critique of human rights
2
Topic 3 considers the Marxist critique of human rights. Surprisingly to many, Marx was critical of the
discourse of human rights that arose out of the French Revolution. Although he was not against all human
rights, he accused liberal rights theories of being divisive. In this topic we will look at the Marxist critique as a
reaction both against the radical individualism of rights theories, and the allegedly “possessive” nature of the
historical origins of ’universal’ human rights. We will explore Marx's notion of the difference between the
'rights of man' and the 'rights of citizen'; and discuss the difference between liberal and Marxist ideas of
'freedom'. We will also look into the human rights record of the ‘real existing socialist’ states and ask whether
or not this has an effect on our assessment of Marx’ critique of rights.
Key Questions:
1.
What is Marx's central criticism of the idea of human rights?
2.
According to Marx, what is the difference between the rights of man and the rights of the citizen?
3.
On Marx's view, what is required for the "full-blooded emancipation" of human beings?
4.
How is this related to his broader notions of human nature and society?
5.
How does the experience in communist countries relate to the Marxist critique of human rights?
6.
How would you rate the possibility of a practical Marxism protecting the vital interests of individuals?
Key Readings:
One of the following:
#
#
*
Lukes, S., 1985, ‘Justice and Rights’ in S. Lukes, Marxism and Morality, Oxford: Clarendon Press
Tay, A. E-S., 1978, ‘Marxism, Socialism and Human Rights’ in E. Kamenka and A.E-S. Tay (eds),
Human Rights, London: Edward Arnold
Corlett, J.A., 2005, ‘The Marxist Critique of Human Rights’, in R.K.M. Smith and C. van den Anker
(eds) the Essentials of Human Rights, London: Hodder Arnold, pp. 247-249
And one of the following:
*
*
*
Stearns, L., 2005, ‘China: The Reality of Human Rights’, in R.K.M. Smith and C. van den Anker (eds)
the Essentials of Human Rights, London: Hodder Arnold, pp. 44-48
Miklós, A., 2005, ‘Central and Eastern Europe: The Reality of Human Rights’, in R.K.M. Smith and C.
van den Anker (eds) the Essentials of Human Rights, London: Hodder Arnold, pp. 36-39
Bowring, B., 2005, ‘Commonwealth of Independent States: The Reality of Human Rights’, in R.K.M.
Smith and C. van den Anker (eds) the Essentials of Human Rights, London: Hodder Arnold, pp. 5053
Topic 4: Three generations of rights
Topic 4 examines the generations of human rights and categories of rights including ‘first generation’ civil and
political rights, ‘second generation’ social and economic rights and ‘third generation’ cultural and collective
rights. We will read the documents in international law protecting these rights and assess the methods of
their implementation. We will discuss the state of their protection worldwide and evaluate their universality.
We will look at the debate on the place of social and economic rights in comparison with civil and political
rights and the third generation of rights, cultural or group rights, that is, the most recent claims for an
extension to the human rights agenda.
Key Questions:
1.
Can a society based solely on individual human rights truly be a just society?
2.
Would you define citizenship in terms of individual rights or in terms of duties to communities?
3.
What is the present state of affairs in the world with respect to the protection and implementation of
civil and political rights?
3
6.
7.
8.
9.
10.
1.
2.
3.
4.
Which rights are protected in international law in the category of economic, social and cultural rights
(welfare rights)? And how well are they implemented worldwide?
Does the human rights doctrine subordinate the value of economic, social and cultural rights to the
value of civil and political rights?
Do social rights have a legitimate place in international human rights law?
How would you justify a stronger position for economic, social and cultural rights?
In what ways could development policy contribute to better protection of economic, social and
cultural rights?
Is the existence of human rights a peculiarly Western idea? Does it have universal applicability?
Could human rights be justified without relying on arbitrary foundations?
Are liberals able to successfully defend autonomy as a central value beyond western societies?
Why is the concept of collective rights problematic?
Key Readings:
#
Lillich, R.B., 1992, ‘Civil Rights’, in R.P. Claude and B.H. Weston (eds), Human Rights in the World
Community: Issues and Action – Second Edition, Philadelphia: University of Pennsylvania Press, pp
90-101.
#
United Nations, 1966, International Covenant on Civil and Political Rights, United Nations Publishers
#
‘Optional Protocol to the International Covenant on Civil and Political Rights’, 1992, in R.P. Claude
and B.H. Weston (eds), Human Rights in the World Community: Issues and Action – Second Edition,
Philadelphia: University of Pennsylvania Press, pp. 446-447
*
Nowack, M., 2005, Indivisibility of Human Rights, in R.K.M. Smith and C. van den Anker (eds) the
Essentials of Human Rights, London: Hodder Arnold, pp. 178-180
Topic 5: Cultural relativism and the Asian critique of human
rights
There have been philosophical and political debates on whether human rights really are universal or whether
are they relative to time, place, culture, and/or resources available. In recent times, many scholars of the ‘non
western’ world have regarded ‘rights talk’ (including human rights) as purely ethnocentric and functioning as
a tool of western global hegemony. In this session, we shall introduce non-Western approaches to human
rights in Asia and examine the possibility of a cross-cultural dialogue emanating from the discussion between
these alternatives and those who champion the universality of western inspired human rights discourse and
values. We discuss human rights in relation to Asian values and particularly to Buddhism and Confucianism.
Finally, we also spend some time examining how human rights actually work and examine their usefulness in
demanding rights/entitlements from the state.
Key questions:
1.
Is the Human rights doctrine essentially universalist?
2.
What is the contextual nature of rights?
3.
What are the main features of the Asian Conception(s)/Values of Human rights?
4.
What examples do you know of the practice of Human rights in the non western world?
Key Readings:
#
Yasuaki, O., 1999, 'Toward an Intercivilizational Approach to Human Rights' in J.R. Bauer and D.A
Bell (eds), The East Asian Challenge for Human Rights, Cambridge: Cambridge University Press, pp
103-123
#
Sen, A., 1997, ‘Human Rights and Asian Values’, Sixteenth Annual Morgenthau Memorial Lecture on
Ethics and Foreign Policy, Carnegie Council on Ethics and International Affairs
(Reprinted with the Permission of the Carnegie Council on Ethics and International Affairs)
*
Baik, T-U, 2005, ‘Asia: The Reality of Human Rights’, in R.K.M. Smith and C. van den Anker (eds)
the Essentials of Human Rights, London: Hodder Arnold, pp. 13-16, Press, New York: Oxford.
4
Topic 6: African foundations for human rights
In this session we shall discuss the validity of universalism-relativism debate in human rights doctrine and in
the practical promotion of human rights across the globe, we shall particularly study African conceptions of
human rights by discussing the history of the African Charter on Human Rights and People’s rights, the basic
differences and traditional and historical elements of the concept of human rights in Africa. We shall
particularly analyse how the African concept of human rights is related to African post-colonial political
thought, to the Western concept of Human Rights and to the value of human dignity. We shall discuss the
prospects and problems of the African alternative formulation for the human rights agenda in relation to the
individualism-collectivism debate on human rights. We shall also examine the overall human rights situation
in various parts of Africa.
Key questions:
1.
What is the African concept on human rights based on philosophically?
2.
What is the African concept of human rights based on politically and historically?
3.
What are the main problems with collective rights?
4.
What are the prospects of cultural interpretations of human rights?
5. What is the major problem with the polarization between individual-universalist and collectivist-relativist
approaches to human rights?
Key Readings:
#
Hellsten, S.K., 2004, ‘Human Rights in Africa: From Communitarian Values to Utilitarian Practice’,
Human Rights Review, 5 (2), 61-85
*
Ouko, J.O., 2005, ‘Africa: The Reality of Human Rights’, in R.K.M. Smith and C. van den Anker (eds)
the Essentials of Human Rights, London: Hodder Arnold, pp. 1-3
*
Murithi, T., 2005, ‘Ubuntu and Human Rights’, in R.K.M. Smith and C. van den Anker (eds) the
Essentials of Human Rights, London: Hodder Arnold, pp. 341-342
Topic 7: Islamic foundations for human rights
One major critique of the universalist pretensions of human rights discourse has come from the framework of
the ‘Islamic Values’. In this session we discuss the relationship between Islam and human rights and see
whether Islamic approaches to human rights can be complementing the international human rights agenda or
whether it remain to be distinctive approach to human rights because of its religious nature. We also discuss
the differences in promotion of human rights within Islamic state vs. within Islamic community in a pluralist
and multicultural society.
Key Questions:
1.
Is there such a thing as Islamic human rights?
2.
What are the grounds for the recognition of Islamic human rights beside internationally recognised
human rights?
3.
Should cultural relativism justify a different implementation of human rights in Islam? What would be
the consequences of doing so?
Key Readings:
#
Tibi, B., 1990, ‘The European Tradition of Human Rights and the Culture of Islam’, in A.A. An-na‫ ٴ‬im
and F.M. Deng, Human Rights in Africa: Cross-Cultural Perspectives, Washington, D.C.: The
Brookings Institution, pp.104-133
*
Dalacoura, K., 2005, ‘Islam and Human Rights’, in R.K.M. Smith and C. van den Anker (eds) the
Essentials of Human Rights, London: Hodder Arnold, pp. 207-209
*
Mayer, A.E., 2005, ‘The Islamic Declaration on Human Rights’, in R.K.M. Smith and C. van den
Anker (eds) the Essentials of Human Rights, London: Hodder Arnold, pp. 209-211
5
Topic 8: The rights of minorities as human rights
This session will look specifically at the rights of minorities in multicultural societies and the right to selfdetermination as examples of collective or group rights (also called 'peoples'’ rights). We will discuss why the
notion of group rights is a problematic concept, both in terms of justification and in terms of practical
implementation. The next two sessions will continue to look at group rights first from the point of view of
feminism and the defence of women's rights then from the perspective of the rights of the child.
Key Questions:
1.
Can human rights only be vested in individuals or are collective rights also human rights?
2.
Does the provision of 'equal rights' ensure equality? Discuss the case for 'positive discrimination'.
What are its strengths and weaknesses?
3.
Why is self-determination a problematic concept? Is the right to self-determination a human right?
4.
Does the anti-universalist nature of multiculturalist policies threaten or protect human rights?
5.
Is multiculturalism bad for women?
6.
Should multiculturalism be an international principle alongside good governance, human rights and
sustainable development?
Key Readings:
Waldron, J., 1995, ‘Minority Cultures and the Cosmopolitan Alternative’, in Will Kymlicka (ed), The Rights of
Minority Cultures, Oxford: Oxford University Press, pp 93-123
Castellino, J., 2005, ‘Minority Rights’, in R.K.M. Smith and C. van den Anker (eds) the Essentials of Human
Rights, London: Hodder Arnold, pp. 260-262
Cynthia Price Cohen (ed.) The human rights of indigenous peoples Ardsley, N.Y. : Transnational
Publishers, 1998 (KS40.5/H)
Sarah Pritchard Indigenous People, the United Nations and Human Rights London: Zed Books, 1998 (JC
571/I)
Topic 9: Women’s rights
This topic will look specifically at the issue of women’s rights from a human rights law perspective. We’ll
introduce the feminist critique of the universalist concept of human rights based on autonomy. We will see
how the issue has been approached on the international scene and ask whether human rights offer a
relevant way to approaching women’s concerns. We will suggest alternatives and address to what extent
women’s rights occupy a specific place in the human rights field.
Key Questions:
1.
Should we talk of ‘women’s rights’ or ‘gender and human rights’?
2.
Should there be special rights for women at all?
3.
What is the validity of the public-private divide and to what extent does it apply to issues such as
domestic violence?
4.
Is international human rights law a good forum to address women’s interests?
5.
How efficient are strategies such as mainstreaming and positive action to work toward gender
equality?
Key Readings:
#
Bunch, C., 1990, ‘Women’s Rights as Human Rights: Towards a Revision of Human Rights’, Human
Rights Quarterly, 12, 486-498
*
Cook, R.J. and Cusack, S., 2005, ‘Women’s Rights, in R.K.M. Smith and C. van den Anker (eds), the
Essentials of Human Rights, London: Hodder Arnold, pp. 366-369
6
Topic 10: Main Rights Institutions
In this session we will discuss the main national and international human rights institutions and instruments,
and set them in their philosophical and historical context.
Learning Objectives:
By the end of this topic you should be able to:

Be familiar with the main national, regional and international human rights insitutions and instruments

Related these instruments to their philosophical and historical context

Critically assess their functionality and normative status in the reginal and global human rights
protection
Key questions:
1. What the main international human rights instruments?
2. What the the main national human rights instruments?
3. What are the main regional human rights institutions?
4. Do the regional and international human rights arrangments conflict or compliment each other?
5. What are the main debates and dilemmas in international human rights protection?
6. Does the UN effectively protect the human rights of individuals?
7. Which regional instruments of human rights protection do you find most useful? Why?
Key Readings:
Study notes and list of readings to be provided at the beginning of the course
Steiner, H.J. and Alston, P., 2000. Section B and Section D. Chapter 8: ‘Intergovernmental Enforcement of
Human Rights Norms: The United Nations System’ in Steiner, H.J. and Alston, P. International Human
Rights in Context: Law, Politics, Morals – 2nd Ed. Oxford: Oxford University Press: pp. 597-601, 611-618.
Baehr, P.R. 2005, ‘The United Nations since the Universal Declaration of Human Rights
of 1948’ in , in R.K.M. Smith and C. van den Anker (eds) the Essentials of Human Rights,
London: Hodder Arnold, pp. 345-348.
Additional readings:
Some of the most important human rights instruments:
The Universal Declaration of Human Rights (1948)
The UN Covenant on Civil and Political Rights (1966) and on Economic, Social and Cultural Rights (1966)
The Convention of the Elimination of all forms of Discrimination Against Women—The Convention Against
Torture
The Convention of the Right of the Child
The Declaration on The Right to Development
These are available on several international law manuals or on the Office of the High
Commissioner for Human Rights web site: www.unhchr.ch
The UN Security Council Resolutions 1325 and 1820
7