A Theory of Human Rights

Freedom is the goal rather than the ground of human rights. But freedom is also essentially dependent on others and other cultures. Achieving the conditions for freedom - human rights - is humanity's overriding moral obligation.
James R Mensch
12 February 2010

Since the original UN Universal Declaration of Human Rights laid out the general principles of human rights, there has been a split between what have been regarded as civil and political rights as opposed to economic, cultural and social rights.  It was, in fact, the denial that both could be considered “rights” that prevented them from being included in the same covenant.[1]  Essentially, the argument for distinguishing the two concerns the nature of freedom.  The civil rights to the freedoms of speech,religion, assembly, association, and so on do not specify the content of the speech, the theology of the religion or the purpose of the assembly or association. Freedom in such cases is necessarily value-neutral.  In leaving the choice up to the individual, these rights purposefully abstract from the content of this choice. 

The case is quite different for economic, cultural and social rights.  All of these necessarily express values with regard to the forms of our social organization.  This is because they move beyond individual choices to consider the purposes or goals of our existence together.  Thus, the rights to the cultivation of a cultural identity necessarily impact more than the individuals exercising them.  As collective, they affect the society as a whole.  The same holds for the UN sponsored rights of a person “to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services.” For a society to honor these rights involves specific choices with regard to its social content and collective organization.  Such choices embody a particular value—in the UN’s words, that of the “social security” of the individual. Freedom, here, is freedom for specific social goals.  Since these goals are collective, they have an impact on our individual choices.  Thus, while my right to expressing my opinion need not impact yours, this is not the case for the economic rights the UN covenant endorses.

The question I want to explore is the nature of the relationship between these two types of rights.  Their differences are clear.  Civil and political rights, in abstracting from specific content, are value-neutral.  As such, they express an abstract freedom, generally understood as a freedom from government interference.  Economic, cultural and social rights, by contrast, are value-laden.  The freedom that they embody is not abstract since it is, by definition, directed towards specific societal goals.  Given this, can we really call both types “rights”?  Civil and political rights, because of their abstract quality, claim to be universal.  Can the same be said of value-laden rights?  Since values are necessarily embedded in a culture, does not the inclusion of such rights relativize them to specific cultures?  Doesn’t it thereby undermine any claim they might have toward universality?  To answer these questions, we have to understand the relation between rights and freedom.  My claim will be that rights are ultimately rights to freedom.  Understanding freedom as the goal rather than the ground of rights gives us an insight into how the two types of rights function together.

1. The relation of rights and freedom

In the modern period, freedom has traditionally been conceived as innate and, hence, as independent of our particular social relations.  The social contract theorists, for example, took it as a feature of our being in a “state of nature” prior to society.  Thus, according to John Locke, the “state all men are naturally in … is a state of perfect freedom to order their actions and dispose of their possessions and persons as they think fit ….” It is because they have this inherent, pre-social freedom that they can bind themselves to form the social contract.  For Hobbes, who considers the natural state of man a “war of everyone against everyone,” human freedom is also prior to society.   He writes that in this war, what is commonly called the "right of nature … is the liberty each man hath to use his own power, as he will himself, for the preservation of his own nature, that is to say, of his own life.” For both Locke and Hobbes, then, humans are naturally free.  This view is not limited to the Anglo-Saxon tradition.  We also find it in Kant, who sees freedom as a correlate of our rational nature,  Whenever we employ our reason to universalize the maxim of our action—that is, whenever we ask what would happen if everyone acted in the way we propose to act—we are using our reason to abstract this act from the determining circumstances of every possible situation.  In other words, we use our reason to apprehend the proposed act as free from all external determinations.  We thereby grasp the possibility of our freely performing it for its own sake. This is the possibility of our acting independently of the particular rewards or punishments the act might carry with it in a particular situation.[2]

The conception of political and civil rights that grows out of this view involve the necessary limitations on our original freedom once we enter into society.  In society, we no longer have a “perfect liberty” to use our power to defend our lives and interests.  We cede part of this to the state, i.e., to its laws, judges, and forces of public order, in exchange for its defense of our freedoms.  Such freedoms, such as those of expression, assembly, petition, etc., are maintained by us as rights.  The ideal here is the maximum amount of individual freedom consistent with the limitations imposed by our living together.  As Kant expresses this: “A constitution of the greatest possible human freedom according to laws, by which the liberty of every individual can consist with the liberty of every other … is …  a necessary idea, which must be placed at the foundation not only of the first plan of the constitution of a state, but of all its laws.” 

This, briefly, is the theory behind the notion of value-neutral rights.  Their neutrality stems from the abstract nature of the freedom they rest on.  For Locke and Hobbes, this is the freedom of the isolated self, the self in a state of nature prior to society.  For Kant, it is the freedom of the self abstracted from all determining circumstances.  Put in these terms, the objections of those who advocate cultural, economic and social rights is clear.  It is that a self abstracted from its cultural, economic and social situation is an empty abstraction; and so is the freedom ascribed to this self.

The dependence of freedom (and, hence, of the rights that express it) on our relations with others is based on the insight that for our freedom to be real, we must have choices.  Such choices are not abstract; they are not pulled from thin air.  We grasp them through our encounters with others.  Thus, the child first becomes aware of them as she learns how to make her way in the human world: how to eat at the table, dress herself, read, ride a bicycle, and so on.  Each new project gives her another option, another way of being and behaving.  It enriches the range of the choices she can conceive.  The same happens in later life.  As adults, whatever we see others do tends to be regarded (whether favorably or unfavorably) as a human capacity.  As such, we regard it as one of our own possibilities.  Even though we might never choose to actualize a possibility, it still forms part of what we could be capable of given the appropriate motivations and circumstances. 

This enrichment of our options is also an enrichment of the meanings the world has for us.  These meanings are both linguistic and disclosive.  When a child’s caregivers teach her her initial projects, they accompany this with a constant stream of verbal commentary.  She first learns, for example, the word spoon as she learns to use it to eat.  Its meaning is given by its function, and its function is set by the particular projects her caregivers introduce her to.  As is obvious, the more multiple the projects an object is involved in, the more multiple are its meanings.  Paper, for example, can mean something to start a fire with (a combustible material).  It can also mean something to write upon, something to fold to make a paper airplane, a surface for drawing, and so on.  Each new use discloses a new aspect of it and adds to what comes to mind in connection with the word.  This same holds generally.  The pragmatic meanings of the objects that fill our world reflect our understanding of how we and others “make our way” in the world.  The multiplicity of meanings attached to objects and states of affairs is correlated to the multiplicity of our projects and thus indicates the options that form the content of our freedom. 

Given that others provide us with the choices that make up freedom’s content, and given as well that the very language that we use to communicate these choices is provided by them, we cannot speak of the freedom of an abstractly isolated person.  Human freedom, the freedom that goes beyond instinctively directed animal desire, is an intersubjective construct.  As such, it is vulnerable to the actions of others.  Our exposure to the choices they offer can be limited by our political, economic, cultural and social circumstances.  Politically, limitations can be placed on speech and assembly, thus limiting our exposure to alternate ways of being and behaving.  Tyrannies, for example, strive to produce a populous that has no idea of such alternatives.  Their ideal is a citizenry that thinks, acts and discloses the world according to a limited number of state approved projects.  So disclosed, this world cannot offer any evidence running counter to the claims of the state.  Freedom in such a world operates within a limited set of options, each of which, when enacted, confirms the others in disclosing a single reality, one with no evident alternatives.  Such limitations, of course, need not be only political.  They can just as well be economic, cultural and social.  Thus, our exposure to alternatives can be limited by cultural and social norms.  It can also be a function of our economic status.  If we lack a standard of living adequate for our “heath and well-being,” that is, if we lack the “food, clothing, housing and medical care” that constitute such a standard, then the choices open to us are necessarily limited.  The same holds for the “social services”—such as the opportunities to obtain an education—that would allow us to better our condition.  All of these impact the content of our freedom.  To speak of rights in this context is to recognize that both notions of rights—both the value-neutral and the value-laden—are not the expressions of an original abstract freedom.  They rather state the requirements for freedom’s concrete realization.  

2. Implications

There are several implications that can be drawn from the above.  The first is that freedom is socially constituted.  It arises in our presenting each other alternative ways of acting based on alternative ways of interpreting our common reality.  Each such alternative increases our awareness of the options available to us and, hence, enriches the content of our freedom.  To paraphrase Kant, without the experience of such alternatives, the concept of freedom is empty, just as without the concept of freedom, the experience of such alternatives is blind. Thus, without the requisite experience, freedom remains simply an abstract notion.  It designates the idea of changing our condition without any conception of what such changes would be.  Similarly, without this idea, that is, without our taking the alternatives presented to us as possibilities we could achieve, our experience of them is blind in the sense that it has no ordering principle.  We do not grasp them as alternatives possible for us.

That both are required leads to the second implication.  This is that the rights associated with freedom are both negative and positive.  Negative rights are the restraints on power that are required to keep open for us the various possibilities of being human.  The classic formulation of the restraints on political power occurs in the US bill of rights.  It is that “Congress shall pass no law … abridging” the freedoms of the press, speech, assembly, religion, and so on (Art 2).  Positive rights involve our ability to achieve the possibilities presented to us by others.  Thus, the right to education is fundamental to our ability to change our social-economic condition.  While we learned our original projects through the observation and imitation of our caregivers, most require the training that only public education can provide. 

The concept of freedom implies more than the simple ability to change our condition.  As involving the options presented to us by others, it is, as I said, an intersubjective construct.  Expressed subjectively, its conception expresses our capacity to surpass ourselves by changing ourselves.  This capacity points to a certain excessive quality of our selfhood.  Insofar as we internalize the possibilities presented by others—that is, recognize them as part of our human possibilities—we always exceed the predictions that can be made about us from our past behavior.  We are free in the sense of not being predictable.  The excess behind this characterizes our ontological condition as social animals.  Given our finitude, we can never exhibit all that we are capable of since the source of the latter is the others who exceed us.  In other words, the source of this excess is the richness of human possibilities presented by our intersubjective world.  Objectively regarded, freedom is this very richness.  The increase of freedom is its increase.  Such an increase is accomplished through the exercise of our human rights, both negative and positive.

With this, we have our third implication, which is that human rights are not based on some original, abstract freedom.  They are not the remnants of it reserved to us after the foundation of the state.  They are rather the means by which we first achieve our human freedom.  Freedom, in other words, is the goal rather than the ground of human rights.  As socially constructed, it is a teleological concept.  So conceived, freedom is the correlate of the possibilities open to the self.  It expresses the richness of the intersubjective realm and, hence, the richness of the lives of the subjects that constitute this realm.

This leads me to the fourth implication, which is that rights are not per se absolute; they are rather relative to this goal.  Their claim to universality must, in other words, be evaluated in terms of their serving as conditions for its realization.  Take, for example, the recent US Supreme Court ruling that treated corporate expenditures for political advertisements as a form of speech and, hence, as protected by the right of free speech.  The ruling took this right to be absolute and, hence, as universally applicable to corporations as well as individuals.  In the theory I am proposing, the corporate exercise of this right would have to be evaluated in terms of the goal of political diversity.  Would it add to or diminish the political options available to the public?  Would it increase or decrease a candidate’s ability to present such options to the public?  The right’s applicability to political donations would be conditioned on how it contributed to the richness of the intersubjective, political realm.

3. Freedom and culture

Given our nature as social animals, many of the projects we engage in are accomplished with others.  The initial “I can” of our first projects, such as “I can” ride a bicycle or I can “dress myself,” becomes expanded to an “I can” that functions along with others in various projects.  This expansion is correlated to the ways we disclose the world and, indeed, to our own identities as the accomplishers of these collective projects.  What we have here is a series of I can’s, which begins with our physical abilities to perceive, manipulate and, hence, disclose the physical characteristics of objects and which ends in our disclosure of and participation in a given, collectively constituted, cultural world.  In this series, each level serves as a foundation for the next.  Thus, the “I can” that is correlated to the grasp of a violin as a physical presence is required for the “I can” that discloses it as musical instrument by playing it.  This, in turn, is required for the “I can play with others” that discloses the violin’s role in a string quartet.  Correlated to this last is the disclosure of the player as a member of this ensemble.  It is also the disclosure of a world, that of the music written for the players, that can only exist as a correlate of their activity.  The pattern exhibited here is perfectly general.  It can, for example, be applied to the constitution of the world of an aboriginal hunting party.  The collective activities of its members enact this world, which itself rests on the activities that constitute the pragmatic senses of its individual elements—for example, those senses expressing the uses of the weapons employed.  On the basic founding level, we encounter those bodily activities, such as turning one’s head, focusing one’s eyes, grasping with our hands, etc., that are involved in manifesting their bare physical presence.

To speak of rights in this context is, first of all, to speak of the means for enacting such collective I can’s and, hence, for activating the corresponding self-identities of the participants.  This can be illustrated by a negative example.  With the enclosure of hunting grounds for the purposes of farming and pasturage, aboriginal hunting cultures in Canada suffered a collapse.  Not only were their members deprived of their means of supporting themselves, their identities as hunters and, therefore, as providers, vanished along with the world that their collective “I can” once constituted.  The result was the destruction of their societies.  The categories by which they made sense of both their world and themselves were no longer operable. Cultural rights are meant to prevent such destruction.  Once again we can speak of negative and positive rights.  Understood negatively, such rights involve the restraints on state power that keep open the possibilities of enacting a collective “I can” and thus maintaining a corresponding self-identity.  These typically include the rights to speak, write, form schools, and teach in the language that bears a particular culture.  Understood positively, such rights entail the obligations the state undertakes to support a culture.  In Canada, for example, the Charter of Rights and Freedoms obligates the state to provide its English and French minorities with an education and public services in their own language (Art 23).

To see such obligations as the fulfillment of rights, more is required than their position as means for enacting a collective “I can.”  In the theory that I am advocating, we must also see this “I can” as an option of our freedom, that is, as part of the richness of the intersubjective world.  This means that such rights are not absolute, but relative.  As with all other rights, they must be shown to contribute to our freedom, that is, increase the diversity of the world in which we dwell.  Thus, such rights cannot be limited to a dominant culture.  They must include different cultures as well as the establishment of the public spaces necessary for their interaction.  They must also include the rights of individuals to absent themselves from their cultures, that is, not follow their norms, but rather embrace other standards of being and behaving. 

4. The temporality of Culture and Citizenship

Can cultures tolerate such openness?  Can they really enter into a public space where they are forced to interact?  Such questions arise when we define culture in terms of racial identity and inherited religious traditions.  To the point that such features cannot be shared, culture is exclusionary.  As such, it is necessarily opposed to the inclusivity of modern citizenship.  To be a citizen in a modern state is to take part in its shared projects. It is to participate in its decision making and to bind oneself to fulfill the obligations such decisions entail.  So conceived, the identity of a citizen is not based on the past.  It abstracts from the ethnic or religious backgrounds of society’s members.  Its focus is on the future as present in the projects of political action.  Those who participate in this action gain their identities from it, i.e., from the roles they play in the accomplishment of the agreed-upon goals.  Given this, don’t we have two opposed conceptions of social cohesion, one based on what we inherited from the past, the other on what we want to accomplish in the the future?

Such a view is too abstract.  For society to function, both conceptions are required.  Human temporality includes both the past and the future.  Thus, a culture without a sense of the future is static.  To the point that it simply preserves its inherited traditions, it becomes a museum piece.  It gains a future in its encounter with the new.  This, necessarily, is an encounter with the other.  This is why Levinas writes, “the other is the future.” His meaning is that the future, in offering us the new, springs from an interpretation, a view of the world that is different from our own.  It springs, in fact, from the other who interprets it from a different set of experiences.  This holds both individually and collectively.  The encounter with another culture can, of course, be destructive.  But, within the framework of the cultural rights defined above, it can also allow a culture to renew itself and grow.  This is because confronting the other, it has to respond to being called into question.  Faced with an alternative way of being and behaving, its members are called on to consider why they interpret the world in the way they do. 

The point may be put in terms of the freedom that is the goal of human rights.  This, I have stressed, is the freedom afforded by others with their different ways of being and behaving.  Insofar as these ways are culturally structured, we have to say that freedom presupposes culture as the soil from which it springs.  It proposes it in the alternatives offered by the other culture.  It also presupposes one’s own culture as that which such alternatives call into question.  One’s own culture is presupposed as that which is transcended in the new perspective gained.  This perspective does not float in the air.  If it is to endure, it has to become anchored in one’s own culture, that is, become part of its accomplished past.  It is here that the abstractions from ethnic and religious identity that define modern citizenship play their crucial role.  Such abstractions embody the transcendence necessary for cultural renewal.  They do so by suspending the exclusivity that would prevent cultures from encountering each other.  Such abstractions, however, have no sense apart from the inherited factors (the contribution of the past) that are offered and transcended. The process of a living, self-renewing culture points, then, to the complex reality of human life.  To grasp it, we cannot take culture, political life, and freedom as abstract notions.  They are all part of the concrete temporalization of human life in which the encounter with the new becomes part of our collective identity.

It is in terms of this identity that we have to say that both value-neutral and value-laden rights are human rights since both are required for the realization of our freedom.  Their claim to universality is actually to the universality of this goal.  If we take freedom as essential for our being human, then the requirements for its realization are human rights in the sense that they are required by our humanity.  The point, however, is to see such humanity as a goal, not a given.  Rather than something we are born with, it is, along with the freedom that characterizes it, something we have to achieve.  This achievement is, in fact, our overriding moral obligation.[3]  To be human is to obligate ourselves to accomplish our humanity.


[1]  The result was the adoption in 1966 by the United Nations of two separate covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).  Both came into force in January 3, 1976.  The United States signed but has yet to ratify the second covenant.

[2] The reference, here, is to Kant’s categorical imperative.

[3] It is our overriding obligation, in Levinas’ sense, since it springs from the other.  As such, in involves the generosity that the encounter with the other entails. This generosity is socially expressed through positive rights.

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