Human Rights and Privacy

1. Human Rights and Privacy

2. Basic Concepts • Is it good enough to know the “definition” of a concept or term? • Difference between political philosophy and political science. • Are lawyers and politicians experts on such issues?

3. Please list some concepts that are either more basic than or inter-definable with “human rights”.

4. Justice, duty, morality, power, liberty, entitlement (授權), equality, fraternity, protection, harm, utility (效益), property, fairness, coercion, interference, obligation, etc.

5. What Philosophers can Contribute • Elucidate • Critically examine • Revise • Contextualize • Argue for a position

6. Which component is more intuitive, “Human” or “Rights”?

7. Is “human” a biological, social, legal or universal concept? • Does it connote an individual or a group? • When did we assume the term to be indifferent to sex or gender?

8. What is a right? • How many types of rights are there? • What is the relationship between legal and moral rights?

9. Legal rights only make sense in the context of positive laws. • Moral rights are believed to exist just in virtue of the fact that there are humans.

10. Right is often explained together with duty. • A person A has a right to x implies that some other persons have a duty to assist A to obtain x or not to deprive A of x. • In most general terms, rights are justified claims to the protection of persons’ salient interests. • Some philosophers use the more abstract concept “dignity” to explain the necessity of upholding rights.

11. Wesley Hohfeld (霍菲爾德) introduced 4 senses of “right”: claims, liberties, powers and immunities (豁免權). • Claims rights (索賠權利) are the most important and well-understood. They entail duties and responsibilities. On the other hand, liberties rights only entail freedom or permission for the rights-holder.

12. ? Ought to P not permitted to not P • Claim rights: X has right with respect to Y to do P Y has a duty to X not to interfere with X’s doing P. • Privilege right: X has privilege with respect to Y to do P  Y has no right against X not to do P. • Power rights: some right or duty of Y is apt to be created, altered or extinguished by X’s exercise of that power. • Immunity rights: Y is disabled from altering X’s legal relations.

13. Components of Rights Claims • A has right to x against B by virtue of y. • A: Right-holder (claimant) • X: the object of the right • B: Respondent of the right (duty-bearer) • Y: Justifying ground of the right

14. Benefit Theory • To have a right is to be the directly intended beneficiary (受益人) of other’s performance of a good-providing duty. • What about the accidental beneficiary of the act?

15. Choice Theory • To have a right is to be in a justified position to determine by one’s choice how others will act. • Emphasis on inter-personal relationship. • H. L. A. Hart’s (哈特) concern: “What do rights add to our moral vocabulary that could not be accomplished with any other part?”

16. Rights give people control over other people’s freedom. Other people’s freedom depends on my choices if I have a right against them. If we only have the concept of duty, the above doesn’t hold: From the fact that A has a duty to B, it doesn’t entail that B has any control over A’s freedom. The control exercised by rights-holder has to be control of the duty such that it can be claimed or waived verbally. However, the duty-bearer cannot declare the duty waived. That party can only control the duty through performance. • What about the rights of children and animals? Are these cases better explained by the benefit theory?

17. We may analyze and understand the nature of rights by examining the 4 items in the formula: A, X, B, Y.

18. “X” is the good in the claims of rights. • For example, there are the relatively uncontroversial goods “freedom”, and “well-being”. • They are fundamental in the sense that we have already implicitly agreed that each person is entitled to act on his/her own towards achieving certain goals. Consequently, freedom and well-being are the necessary conditions for the success of any human action.

19. Three Levels of Rights • 1st generation rights: liberties and privileges of citizenship (freedom of speech and religion, and freedom from arbitrary arrest, etc.). • 2nd generation rights: socio-economic claims (education, housing, healthcare, employment, etc.). • 3rd generation rights: focused on communities (minority language rights, national rights to self-determination, rights to environmental integrity, etc.).

20. Negative vs. Positive Rights • Negative: non-interference; negative rights never conflict with each other. • Positive: assistance; may conflict with each other and are dependent on resources.

21. Entitlement • Having rights in virtue of being human. • Assumption of unconditional worth to the existence of each person. • In contrast, merit is differential and has to be earned. • On the fundamental level, there is the egalitarian (平等) assumption that everyone is entitled to the same concern and respect.

22. Justice • Most people nowadays are more familiar with the concept “justice”; thanks to Michael Sandel’s (桑德爾) famous book/lecture. • http://www.justiceharvard.org/2011/02/episode-04/#watch • John Rawls (羅爾斯) famously says that “justice is fairness”. • So, how is justice related to human rights?

23. For some, it seems more inclusive and humane to talk about promoting justice than to assert one’s rights. • Relatedly, some have criticized that the emphasis on rights obscures the more fundamental concerns about needs and responsibility. • The point is whether the antagonism between right-holder and duty-bearer is real.

24. Rawls vs. Nozick • The debate on justice between the two giants in analytic philosophy is legendary. • Understanding this may help us to see the issues about human rights more clearly. • A Theory of Justice《正義論》vs. Anarchy, State and Utopia 《無政府、國家與烏托邦》.

25. John Rawls • Justice consists in fair treatment of all agents. • Each is to have basic liberties and means of subsistence. Apart from this, differential distribution of goods is allowed so long as the arrangement is based on a fair procedure such that it is to the greatest advantage of the least privileged. • Maximin principle over aggregate or average principle.

26. Robert Nozick (諾齊克) • Human rights on material need are violation of individual rights to liberties. • Particular private entitlements “fill the space of rights, leaving no room for general rights to be in a certain material condition”. • In other words, compulsory charity and taxation are similarly unfair redistribution of goods because they infringe the rights of the original owners of the goods.

27. The “human rights” we are now familiar with may be those that are consequent to the general adoption of the Universal Declaration of Human Rights (世界人權宣言) by UN in 1948. • Although such rights sound universal and natural, their development follows a tortuous course in history and it is often criticized that “human rights” are primarily Western ideas.

28. Historically speaking, rights are by-products of laws; in other words, laws confer rights on certain people. • Hence, it was not even assumed that humans are equal (slaves and foreigners are inferior to citizens).

29. Timeline • Babylon: Hammurabi’s Code (漢摩拉比法典) (1800 BC) • Roman Senate: Law for all people (jus gentium) (萬民法)(200BC) • Magna Carta (大憲章)(1215). • English Bill of rights (權利法案) (1689) • US Constitution (美國憲法) (1789) • Universal Declaration of Human Rights (1948) • International Covenant on Economic, Social and Cultural Rights (1966)

30. First World Conference on Human Rights (1968, Teheran) • International Convention on the Elimination of All Forms of Racial Discrimination (1969) • International Covenant on Civil and Political Rights (1976) • International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987) • International Convention on the Rights of the Child (1990)

31. International Convention on the Protection of the Rights of All Migrant Workers and their Families (2003) • International Convention on the Rights of Persons with Disabilities (2006) • http://legal.un.org/avl/ha/humanrights.html

32. Codes and laws do not imply the existence of human rights insofar as they are treated as political agreement between restricted parties. • What spurred the development of a universal and all-inclusive concept of rights is the Western development of liberalism (自由主義) and individualism (個人主義) in the last 300 years or so.

33. John Locke (洛克) • Natural rights (自然權利) • In a state of nature, human enjoy a state of liberty. • However, in a society humans are in bondage and in danger. • That is why a government is formed (upon tacit consent (默許) of all members to a social contract) to protect people from harming each other.

34. Jean-Jacques Rousseau (盧梭) • Social Contract 《社會契約論》 (1762) • General will (公共意志), private will, will of all (全體意志). • A hypothetical transaction: trading natural liberty for civil liberty and property ownership, etc.

35. Thomas Paine (潘恩) • Rights of Man 《人權論》(1791) • First hint of globalism and universality: “My country is the world, and my religion is to do good”. • Asserts the existence of the “natural dignity of man”. • Relatedly, the 1776 American Declaration of Independence 《美國獨立宣言》 states: “We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness”.

36. In the French Revolution, there was similar emphasis on human rights: “Men are born and remain free and equal in rights … The aim of every political association is the preservation of the natural and inalienable rights of man; these rights are liberty, property, security, and resistance to oppression”.

37. We should, however, note that despite the tone of universality, exclusivity was still tacitly assumed: for example, women were recognized to be entitled to the same rights as men only relatively recently. • Mary Wollstonecraft (沃斯通克拉夫特): Vindication of the rights of Woman 《女權辯護》.

38. Philosophical Systems • In a bigger context, the development of the concept of rights has been guided by prominent moral theories. • At around the same time, Kantian and Utilitarian ethics were the two competing systems of ethics.

39. Kantianism (康德主義) • Deontological ethics (道義論) • Emphasis on intention and duty. • All moral laws are universalizable. • Treat humans as ends, never as means.

40. Utilitarianism (功利主義) • Proposed by Jeremy Bentham (邊沁) and developed by John Stuart Mill (穆勒). • What is moral is what promotes the highest aggregate of utility: consequentialism (結果主義). • Bentham regards natural rights as “nonsense upon stilts” and that men are simply not born free. • That’s why for him there are only legal rights. • In other words, legal rights are not to be understood as being subject to a higher level of moral scrutiny.

41. Marxism (馬克思主義) • It might be easily misunderstood that Marxists are by default staunch defenders of human rights. • For Marx, natural rights as understood by Locke, et al. are simply an expression of egoism for members of the privileged class. • If the goal of Marxism is to forge an ideal community without conflicts, it follows that claims of rights would not appear.

42. As a result, the real task for a Marxist society is to liberate people from religion, property and law. • Marx wrote that “the political emancipators go so far as to reduce citizenship, and the political community, to a mere means for maintaining these so-called rights of man”.

43. Problems and Controversies

44. Is the Concept of Rights too Egoistic (利己)? • Is the concept of rights necessarily interest-driven and individually based? • If so, why is it bad? • How can rights talk be adjusted to accommodate a sense of communal (公社) morality?

45. Chinese Context • Traditional Chinese values are family-oriented. • Will rights claims cause disharmony among family members? • From a communitarian point of view (社群主義) the assumption that each person lives a life on his/her own terms is a myth. • Is the upholding of social hierarchy always in conflict with individual rights?

46. It may also be claimed that talks of rights imply debts. But this does not sound right in the Chinese ears: no parents would welcome the idea that they owe to their children or that their children have claims rights on them • In fact, if the debt metaphor holds, it is the reverse: children naturally owe to their parents.

47. Symmetry of Rights • Do you allow that for some important rights, the relationship between the right-holder and the duty-bearer is asymmetrical?

48. Amartya Sen (阿馬蒂亞·森) • “To see Asian history in terms of a narrow category of authoritarian values does little justice to the rich varieties of thought in Asian intellectual traditions. Dubious history does nothing to vindicate dubious politics.” • The politics of rights is a means to achieve economic dominance. • US Department of State’s Country Reports on Human Rights Practices leaves US out!

49. State and Paternalism (父愛主義) • Just as children’s rights are sometimes usurped by the parents for their own good, can a citizen’s right be likewise violated? • Do the rights of the majority always trump the rights of an individual?

50. In 2000, Madeleine Albright (奧爾布賴特) (US Secretary of State) said: “China has signed the International Covenant on Civil and Political Rights. Unfortunately, its official policies have always fallen well short of these standards, and deteriorated markedly this past year”.