With human rights
mania, I’ve always asked myself, what differentiates a plausibly human right from an unwarranted one. The reason why the difference should be made is
because contemporary experience shows a huge variety of human rights, so varied
that we have grounds to ask ourselves if such wide expansion of basic rights
doesn’t make them spurious in the end. By human rights I assume we are talking
about the basic rights that belong to a human being by virtue of his human
condition. The question, then, is about the basic rights of human beings.
Let me
illustrate my point with an example. If having food is a basic right, and there
is no possible way to provide food for lack of it, then the right becomes
spurious, i.e. a mere rhetorical act without denoting an empirical fact. This
is actually what happens with many so called basic rights. Take access to
internet as another example. If there is no technology and technical resources
to provide internet freely, how can it be a basic right? We would be forced to
admit that the configuration of the universe itself is breaking this basic
right, which is the same as to say that the universe is illegal. Sounds
ridiculous, isn’t it?
So, no
access to any kind of resource can be reasonably considered a basic right,
because it is not in the hands of human capabilities to provide these rights
indefinitely. This is the reasonable conclusion from the empirical facts that
material resources are subject to changes of fortune, i.e. it is subject to
natural changes in the environment, so that its supply cannot be considered absolute
or eternal. And because its supply cannot be expected to be absolute, they
cannot be basic. Nothing which is changing and tangent is absolute, so it is
not basic at all. When we catalogue tangent rights with basic rights, we make
the notion of basic rights itself spurious. And because we, in the West, don’t
want to do that, we should simply discard as mere nonsense any pretention to
make out of a tangent right a basic right.
This is
not to say that tangent rights are not important. Nothing farther from what I’m
trying to say. They are important, but we must acknowledge that they are of a
different nature. They are always subject to environmental changes of fortune;
which includes, of course, history. To clarify, tangent rights are positive
rights. The reason why I call them tangent is because they are the kind of
rights that belong to persons when they are positioned in the historical and
cultural context that allows them to have those rights, assuming that under
another context, persons would not have them.
What is,
then, a basic right? It is the guarantee of non-interference from other human
actors in an aspect of the human condition without which the person would not
survive. This assumes that individuals want to remain alive. It also assumes
that a basic right is an aspect of the human condition that it would not be
reasonable to ask of a person to surrender. And by reasonable I mean that it
cannot be asked of a person to surrender a right without which it would cease
to exist. To illustrate with an example, it cannot be asked of a person to
cease to eat to the point of starvation. Access to food might not be a basic
right, but access to the possibility of eating by one’s capacities is.
Technically
speaking, basic rights relate to physiological necessities, which is not the
same to say physiological impulses. All physiological necessities are impulses,
but not all impulses are necessary for the purpose of survival. Eating,
sleeping and defecating are necessary for survival. Reproduction or coitus is
not. But eating, sleeping and defecating imply other things, because they
cannot be accomplished without certain actions from the person. In order for
these needs to be met, the person must be able to move, and must own the
product of his labor force. In order to move and labor, the person needs to
think, and to associate himself with other thinking and acting human beings.
Because without thinking, men cannot do anything, and without associating
himself with other men, he cannot combine his labor force in order to make it
productive, without these two rights, men would not be able to survive as men.
Besides these, it sounds very unlikely that there would be other basic rights.
Summarily
they are:
1)
Eating, sleeping and defecating.
2)
Freedom of movement.
3)
Property ownership (which can be collective or individual, because both
work).
4)
Freedom of thinking (which is not the same as freedom to express
everything that one thinks).
5)
Freedom to associate with other men for the purpose of economic
production.
I assume
that if any person takes any of these from any other person, the latter would
not survive for long. And I also assume that all human societies have generally
respected these rights for the vast majority of their populations, institutionally forming them distinctively according to historical and cultural context. Any
society denying any of these to a population is truly denying basic human
rights. This definition allows us to define precisely the notion of crimes
against humanity, when it can be proved that some persons deprived a particular
population of these rights systematically. Other kinds of violations are upon
tangent rights; which means that they are relative to historical, normative and
cultural context, i.e. there can be no crimes against humanity with the
systematic violation of tangent rights.
To
clarify rights (3), (4) and (5), it does not imply that the individual lives in
a liberal society. A slave might not own himself, but the product of his labor
is reattributed by the master in order to keep the slave alive. What we see in
slave-master relationships is a division of labor where the master puts all the
thinking and the slave puts all the labor, and the fruits are distributed
unevenly. Right (5) is the indispensable requirement for division of labor,
which includes any kind of division of labor, e.g. slavery, serfdom or wage labor.
The only problem of a state of slavery is that it is in the hands of the master
to deprive the slave of any of these basic rights. So a state of subjection of such
nature does not protect effectively the basic rights of slaves, even though he might still enjoy them by virtue of the slave being fed and clothed by the master.
What I’m saying is that even a slave has basic rights when the master allows
him to survive, even when they are not positively established. But such
guarantee of protection of basic rights is very poor. That’s why we have
created tangent rights that are more effective in the protection of basic
rights.
This is a
ius naturale conception, because any
pretention of reaching basic rights is ius
natural as opposed to ius positum.
It assumes that all human beings have these rights by virtue of their human
condition, independently of positive law.
Citizenship
rights, on the contrary, are always tangent rights, because they depend on a
republican constitution in order for a person to have them. The enfranchisement
of citizenship rights will also depend on the form of the republic itself, i.e.
if it’s democratic or oligarchic. These will always be positive rights. Persons
have them because they are established in positive law. Otherwise they don’t
have them. These form part of a huge Western tradition of citizenship that includes
rights as freedom of speech, right to vote, to access to office, freedom to
form political associations, etc. Because they are tangent, they cannot be
filed among human rights. Otherwise we would have to reach the absurd
conclusion that the universe has been illegal for most of the time.
I conclude
by saying that tangent and positive citizenship rights are the most effective
institutional arrangements in order to protect everyone’s basic rights. This is
one of the reasons they are so important. It assumes that people will engage in
these rights in order to make them effective. Inaction makes positive citizenship
rights spurious.
Besides
the basic rights already listed, we cannot speak of anything else as basic. In
few words, if a right is not established, and it’s not basic, the person doesn’t
have it. Hence, liberal claims to protect tangent rights that are not
positively established are mere rhetorical arguments.
