PHIL 104 (STOLZE)
Notes on James Nickel,
Making Sense of Human
Rights, chapters 1-6
Chapter 1: The Contemporary Idea of
Human Rights
• Defining Features of Human Rights
• Old and New Rights
• The International Protection of Human Rights
Eight Defining Features of Human Rights
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Mandatory norms with rightholders, addressees, and scopes
Universal in the sense of protecting all people
High priority norms with strong justifications
Not dependent for their existence on recognition by particular
governments or on legal enactment at the national level
International standards of evaluation and criticism that are not restricted
by national boundaries
Political norms whose primary addressees are governments rather than
interpersonal standards
Numerous and specific norms dealing with matters such as security,
due process, liberty, equal citizenship, and basic welfare
Minimal standards that constrain rather than replace legislation and
policy-making at the national level
Old and New Rights
Rights today compared with older conceptions of rights are:
--more egalitarian
--less individualistic
--more internationally oriented
Chapter 2: Human Rights as Rights
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Elements of Rights
Rights and Goals
Problems with “Claiming One’s Rights”
Rights and Duties in Morality and Law
Four Elements of Rights
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Rightholders
Scope or Object
Addressees
Weight
Rights and Goals
• Rights have the following three features: (a) they have high
priority, (b) they are definite, and (c) they are mandatory.
• Nickel distinguishes rights from goals or ideals, because the
latter only have the first two features in common.
Problems with “Claiming One’s Rights”
• The notion of “claiming a right” is ambiguous and can mean:
(1)
insisting that one has a right to something;
(2)
(3)
triggering an already recognized right;
demanding compliance with a recognized right in the face
threatened violation
of a
• Another problem: who is the claimant?
• Finally, no one activity exhausts what we can do with rights:
“Besides claiming rights, we can recognize them, question them,
take them into account, disregard them, respect them, and use
them as the basis for a decision” (p. 28).
Rights and Duties is Morality and Law
• The Entitlement Theory = rights are “claims-to” certain benefits
• The Entitlement-Plus Theory = rights are (a) “claims-to” certain
benefits and (b) “claims-against” certain parties to supply these
benefits
• The Legally Implemented Entitlement Theory
Chapter 3: Making Sense of Human
Rights
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Human Rights as Minimal Standards for Governments
Who Has Human Rights?
Assigning Responsibilities for Human Rights
Scope, Weight, and Trade-Offs
Are Human Rights Inalienable?
The Existence of Human Rights
How Human Rights Guide Behavior
Human Rights as Minimal Standards for
Governments
Human rights are a “political morality of the depths” (p. 36); and
their “modality” is “must do” not “would be good to do”;
according to Nickels, human rights should be minimal standards
for four reasons:
(1)
Ensures their high priority and universality;
(2)
Leaves room for democratic decision-making at the
national level;
Makes them acceptable to countries who prize their
independence and autonomy;
Makes them more likely to be feasible in the vast majority of the
world’s countries.
(3)
(4)
Who Has Human Rights?
• Problems with simply saying “all human beings everywhere and
at all times” (p. 37)
Assigning Responsibilities for Human
Rights
• Primarily governments, but also international organizations and
especially individuals.
• Ex: torture (p. 41)
Scope, Weight, and Trade-Offs
• Nickel argues that “it is not plausible to suggest that all human
rights are absolute, that they can never be suspended or
sacrificed for other goods” (p. 42).
• Human rights and their exercise are generally subject to
regulation by law “so that they harmonize with each other and
with other important considerations” (p. 42).
• Ex: possible conflict of free speech and right to a fair trial (pp.
42-3)
Are Human Rights Inalienable?
• Inalienabilty = “a right cannot be permanently forfeited or given
up entirely” (p. 44).
• Nickel argues that human rights “are hard to lose but that few
are strictly inalienable” (p. 45).
The Existence of Human Rights
• Human rights are often said “to exist independently of
acceptance or enactment as law” (p. 45)
• Ex: Not just as wishes or aspirations but as any or all of the
following: (a) rights within a justified morality that is “well
supported by appropriate reasons” (p. 47), (b) rights within the
domestic legal system, or (c) rights within international law
Ex: torture
How Human Rights Guide Behavior
• Ex: a right to freedom from torture “guides behavior by defining
torture, forbidding everyone to engage in it, and imposing a duty
on governments to protect people against it” (p. 48)
• However, difficulties remain with the implementation of this and
other rights (pp. 48-51)
Chapter 4: Starting Points for Justifying
Human Rights
• Prudential Reasons for Human Rights
• Utilitarian and Pragmatic Justifications for Human Rights
• Four Secure Claims
Prudential Reasons for Human Rights
• See Nickel’s model argument on pp. 55-6
• Objection: stronger groups may take advantage of weaker
groups when creating a system of rights (p. 57)
Utilitarian and Pragmatic Justifications for
Human Rights
• Utilitarianism = “a theory in philosophical ethics that…holds that
we should judge norms and institutions entirely on the basis of
their likely consequences for the general welfare” (p. 59)
Four Secure Claims
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A secure claim to have a life
A secure claim to lead one’s life
A secure claim against severely cruel or degrading treatment
A secure claim against severely unfair treatment
“A unifying idea for these four secure claims is that, perfectly
realized, they would make it possible for every person living
today to have a lead a life that is decent or minimally good” (p.
62); moreover, “all four principles should be thought of as
requirements of human dignity” (p. 66)
Chapter 5: A Framework for Justifying
Specific Rights
• Six Tests for Specific Rights
• Resources and Rights
• Deriving Rights from Other Rights
Six Tests for Human Rights
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Substantial and Recurrent Threats
The Importance of What is Protected
Can It Be a Universal Right?
Would Some Weaker Norms Be as Effective?
The Burdens are Justifiable
Feasible in a Majority of Countries
Resources and Rights
• The Feasibility Standard
• Identifying and Counting Costs
• What Happens to Otherwise Justified Rights that Fail the
Feasibility Test?
The Feasibility Standard
• Inability to fulfill a moral or legal duty is generally an excuse
from that duty.
• The genuine inability of the addresses to fulfill their duties does
not cancel a pre-existing right.
• The duties imposed by rights should be ones that a majority of
the addresses are able to fulfill.
Identifying and Counting Costs
• Conflict costs
• The Costs of Using Weaker Means
• Implementation Costs
Deriving Rights from Other Rights
• A general or abstract R1 => more specific R2
• Effective implementation of R1 => implementation of R2
• R2 => makes violations of R1 less likely
Chapter 6: The List Question
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Determinacy through Law
Rights Expansion and the Devaluation of Rights
Rawlsian Ultraminimalism
Unity and Diversity among the Families of Human Rights
Determinacy through Law: Families of
Human Rights
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Security Rights
Due Process Rights
Liberty Rights
Rights of Political Participation
Equality Rights
Social Rights
Rights of Distinctive Groups (e.g. women, children, minorities,
indigenous people)
Rights Expansion and the Devaluation of
Rights
• Rights expansion has led to a need for critical evaluation and
quality control, especially regarding “new rights”
• Ex: Environmental rights (pp. 97-8)
Rawlsian Ultraminimalism
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Right to Life
Right of Emigration
Property
Formal Equality
John Rawls restricts his list to allow for (a) a strong doctrine of
tolerance for other “decent” states as long as they are not
“outlaws” and (b) to specify when outside intervention into a
country is permissible; Nickel criticizes Rawls’ approach as too
narrow (pp. 101-2)
Unity and Diversity among the Families of
Human Rights
• Three Sources of Diversity among Human Rights (p. 103):
(1)
(2)
(3)
There are “lots of ways in which people can be harmed and mistreated.”
“The underlying values are several not unitary.”
“The institutions needed to protect the underlying values against the
standard threats and abuses are various.”
• Ex: Hospital Analogy (pp. 103-4)
• Three Sources of Unity among Human Rights:
(1)
Functional Role
(2)
(3)
Harmony
Intersupport