Rights:
I. The Word “Right”:
The word “right” has many meanings which are etymologically and semantically related with each other.
It has a long etymological history. To begin with, let us take up French word droit and German word Recht. Both have a common etymological origin: the Proto-Indo-European stem reg-, which meant “straight.” Droit, together with Italian diritto and Spanish derecho, is derived from Latin words rectum and directum, whose origin is PIE reg. So are Recht, Dutch regt and English right. Droit and Recht are etymological cousins.
Droit and Recht have similar
meanings: straight, justice, law, right, and the antonym of left. The original idea might have been: “straight
is good, crooked is evil.” We must here
raise three points concerning these concepts: 1) concerning the Latin word jus, 2) concerning the Continental
European words lex, loi and Gesetz, 3) and concerning the English words law and right.
1) Although droit derived from directum, the ordinary Latin word which corresponds to droit is not directum but jus, which is the origin of justice. Jus may have been derived from iurare (which means “to pronounce ritual formula”), suggesting magical or religious source of ancient Roman law. In later usage, it means justice, law, right and jurisprudence, just as droit and Recht.
2) Continental languages have other words for law: lex, loi and Gesetz. The dispute concerning the etymological origin of lex is not settled. According to the later usage, lex tended to signify concrete legal prescription or legal code, in contrast to abstract and ideal jus, although sometimes they, especially French words droit and loi, were used synonymously, as droit naturel and loi naturelle. The meaning of the word lois in Montesquieu’s book L’ésprit des lois is rather abstract. German word Gesetz, on the other hand, usually means positive and written statutes in contrast to ideal and abstract Recht, probably because the German verb setzen means “to set” or “to put.” “Gesetz ist lückenhaft, Recht ist lückenlos” (Gesetz is full of gaps, whereas Recht has no gap) is a famous adage (attributed to Joseph Unger (1828-1913)).
Lex, loi, Gesetz and law have another meaning: regular sequence of cause and effect, as “law of gravitation.” The origin of the concept of causal law was normative law, which combines crime and punishment. The Greek word for “cause” is aitia (originally, guilt)(cf. the word “aetiology”).
3) There are some differences between these Continental concepts and their English counterparts. There is no distinction of jus and lex in English. The word law includes both. Although the English word right, just as jus, droit and Recht, has the meaning of justice, it does not mean law in the ordinary usage. Because droit and Recht mean law and right at the same time, Continental jurists have tried to distinguish them by adding adjectives “objective” and “subjective.” Droit or Recht in the subjective sense means right, in the objective sense, law. In this usage, we can see the idea that right is the subjective reflection of law. “It is right to do something” is an objective statement of law, whereas “it is my right to do something” is its subjective reflection.
2. Law and Right:
The question as to the priority of law and right, or expressed in the terminology of Continental jurisprudence, as to which of the objective and subjective right is logically prior to the other, has something to do with the fundamental antagonism in political philosophy: Aristotle or Hobbes?
Aristotelians teach that individuals are born into preexisting political communities, which have predetermined their status. The legal order of the communities imposes duties on community members, but allows them some space for autonomy in which individuals can determine their conditions by their own initiative. This space is the area of rights. Law precedes rights, in this theoretical scheme.
Hobbes-interpretation is a very controversial topic into which we cannot enter here. According to one of the interpretations (by no means unorthodox), Hobbes taught that, in the “state of nature,” there were only natural rights of individuals who had no duties. Everyone has the right to do what one wants. The state of affairs in this world was an utter anarchy which he depicted as “the war of all against all.” As there was no security there, their lives were miserable and short. To save themselves from this situation and to secure their natural rights, they made a contract and established a state power whose legislation introduced duties and defined meum and tuum (mine and thine). Here, right is prior to law. Whereas rights are pervasive, duties which state law legislates are only complementary corrections to rights.
Howard Warrender espoused a Hobbes-interpretation according to which there had been a duty to respect contracts even in the Hobbesian “state of nature.” Its effectiveness, however, is very limited even according to his view, because a partner of a contract need not perform his/her duty before the other side performs. There is no guarantee of counter-performance where state power does not exist. The individuals in the state of nature are egotists who are not supposed to play the fool.
John Locke followed Hobbes in the teaching of the primacy of right. He taught that property which individuals earned by their labor is the natural right, for the protection of which the state was established afterwards. The natural right may presuppose the validity of a kind of natural law which authorizes it, but in any case, the natural right precedes the positive law.
This doctrine of natural rights has found a theological justification. They say that, as human beings were created as the “images of God,” they are the supreme existence in the universe. After Adam’s sin brought evils in the human world, state and law were introduced to suppress them. Whereas orthodox doctrines justify state and its law as the expression of divine will, some modern theologians assert that individuals with their divine rights precede the state and law.
Almost all the nations and states in the world history were founded on the ideological basis of the Aristotelian doctrine of man and society. It is the United States which was established on the Hobbes-Lockian natural rights doctrine. The Declaration of Independence (1776) starts with the following passage:
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. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
The concept of rights in the writings of many American writers is foremost the concept of natural rights, as we see Ronald Dworkin’s Taking Rights Seriously, whereas, when jurists of other nations talk about rights, they mostly refer to the rights in positive law. Americans have tried hard to universalize their concept of rights, with some success. General MacArthur’s Constitution of Japan is one example. How far they have succeeded is an interesting sociological problem which may differ from country to country.
3. Rights in Positive Law:
Theorists in the German-speaking world have elaborated the definition and systematization of legal concepts in positive law. Hans Kelsen (1881-1973) is one of them. Kelsen defined the positive law as coercive order. Legal order is, according to him, composed of norms which combine conditions and effects. Coercive order is the system of norms whose ultimate effects are coercion (punishment, civil execution etc.). Legal duty is to avoid the conditions for coercive effects (there are technical arguments as to avoidance of which conditions constitute legal duties, into which we cannot enter here). Vast areas of human actions which are not the conditions of coercive effects are area of freedom. From legal point of view, human actions belong either to duty or to liberty. Then, where are rights?
When a person robs my purse, the state power shall punish him independent of my will. To punish the culprit is not “my” right. In civil cases, however, it is my will which sets in motion the legal procedure from court procedure to civil execution. Then it is “my” right to get back the purse. Right is the legal possibility to set in motion the legal procedure which leads up to coercion. In primitive communities where there was no centralized coercive organization, each individual had the right to revenge for their suffered damages. In authoritarian communities, where the state power punish and execute with its own initiative, no subjects have rights. They may “petition” to the authority for the recovery of suffered damages, but the state is free to adopt or reject it.
The difference between the so-called constitutional rights to freedom and the simple freedom (in the meaning of “not prohibited”) is that, in the former system, if violated according to the ordinary statutes, there are procedures to review the statutes, either through the judicial review by the ordinary court (as in the United States) or by the special Constitutional Court (as in the continental European states). If no such procedure is instituted, the guarantee of the constitutional rights is nominal. “Political rights” of citizens (right to vote, e.g.) are their legal possibility to take part in the legislation, directly or indirectly.
German jurists have developed a concept Rechtsfähigkeit (ability to be the subject of right) as the precondition for enjoying rights. Ancient slaves were called “speaking tools” and were not recognized as the subjects of rights. In the medieval law, persons who were sentenced as “outlaws” were deprived of legal personality. They could be killed with impunity, their property was divided by successors, and their wives became widows. Modern jurists have discussed as to from what time point a human embryo becomes rechtsfähig. Another contemporary problem is the Rechtsfähigkeit of corporate bodies.
4. Human Rights:
In 1789, the National Constituent Assembly in Paris declared the “Rights of Man and the Citizen.” Whereas the “rights of the citizen” can only be enjoyed by the French citizens, the expression “rights of man” refers to all the mankind.
Predecessors of the idea of “rights of man” or “human rights” can be found in ancient writings, in the fragments of enlightened thinkers who criticized slavery (Antiphon and Lycophron), or in the natural law doctrine of the Stoics. Institutionalization of this idea started with the American and French revolution and it was gradually accepted by the Western nations. Most constitutions stipulate the catalogue of rights, some articles of which are called “basic” or “human.”
The idea of human rights with its insistence of the equality of all human beings has given rise to many trends of “liberation movements.” Abolishment of slavery in Britain (1806) was monumental as an early accomplishment of such movements. Feminist movements have succeeded in abolishing legal inequalities in many countries, although there are still social problems even in the “developed countries.” Suffering women in poverty and discrimination are not limited in the “developing nations.” One of the contemporary problems of the idea of human rights is its conflict with the international system of sovereign states. The rights of national and religious minorities, of aborigines and immigrants, and of refugees are some examples of them.
After mankind experienced the catastrophe caused by the racism of National Socialism in the first half of the twentieth century, it was felt necessary to effectuate human rights internationally by the authority of the United Nations. The Universal Declaration of Human Rights adopted by the General Assembly on 10 December 1948 was its product. Although it has not a strict legal effect, because it is not a treaty but a “declaration,” it has been implemented by a series of UN legislations (The International Covenants of Human Right (1966), and establishment of such organs as Human Rights Council (2005), e.g.).
As for the philosophical foundation of the idea of human rights, thinkers and scholars have argued with each other ever since. Within the Western intellectual world, there are those who find their supports in the age-old traditions (natural law doctrine, Christianity etc.) and others who subscribe to the modern Enlightenment traditions (natural right theories and “secular humanism”). Many non-Western thinkers have found or dug out humanistic traditions in their own cultural backgrounds.
5. Critics of the Idea of Human Rights:
As we are all humans, there are few who radically oppose the idea of human rights. However, there have been harsh arguments and disputes about it.
Theoretically, natural law doctrine is not universally accepted. There are value relativists and legal positivists, who reject the idea of universal validity of natural law and natural rights as “metaphysical.”
Among its critics are some utilitarians. Individualist utilitarians are in many cases allies of the human rights school because they presuppose the right of individuals to pursue happiness, seek pleasure and avoid pain. Right is the legal form to protect utilitarian desires. There are, however, collectivist utilitarians who prefer collective welfare to individual happiness. Bentham’s thesis “the greatest happiness for the greatest number” implies the majority’s right to override minority’s will and interests, though Bentham’s personal orientation was not very collectivist as an modern Englishman. One problem of his thesis is who judges their “greatest happiness.” If it is decided by simple majority vote, it is compatible with modern democratic principles. If, however, it is judged by an enlightened despot who decides “for the sake of the people,” it means a paternalism contrary to democratic majority principle. Bentham sent his draft of legislation to the Russian tsar. Collectivist utilitarianism was by no means invented by Bentham. In a sense, any undemocratic regime has found its justification in collective utilitarianism, in which those who have authority judges what is the best interest for the group.
Communitarians can also be critics of the idea of human rights. Communitarianism is not the invention of modern thinkers such as Alasdair MacIntyre, but shared opinion of the people who lived in a traditional community. It was too self-evident for them to speak or write. There, individuals are born into community which allots them their “places.” What to do and what to refrain from is determined by the age-old custom and tradition. If they have problems, people understand what they are and show them the way how to deal with.
Such a community was by no means composed of equal members. Urbanization caused the gradual disintegration of such a community. Introduction of the idea of human rights “awakened” the youths of lower social strata. Their self-assertions shocked the traditionally-minded people who accused them as destroyers of the “harmony,” which consisted in the grateful acceptance of benevolence by the people of lower strata, and especially by women. The traditionally minded Japanese openly showed antipathy to the introduced word kenri (right) since the second half of 19th century. Everywhere in the disintegrating traditional communities, ideological and material conflicts between proponents of rights and “communitarians” were seen, probably not only in Japan.
In the big cities where inhabitants from all quarters of life constitute Gesellschaft instead of Gemeinschaft, they missed the communities they left behind. Many of them became “Romantic communitarians.” Some of them cursed the modern civilization and became rightists. Others cursed capitalism and became leftists. There are phenomena in which radical leftists converted to radical rightists and vice versa, perhaps because they share common communitarian romanticism. Individuals, who have worked in big cities, grew old and retired, find themselves in a very lonesome situation and murmur, “I need a community to belong.” Such a sentiment can be called “egotistic communitarianism.”
David Riesman characterized urban residents who have no communities to belong as “lonely crowd.” Some of them try to form “substitute communities” in cities. In small companies, the boss behaves like the father, his wife, mother, and employees are told to regard themselves as brothers and sisters. “The company is our family.” The Japanese big companies, with their lifelong employment system, were sometimes called the “second village,” which were composed of the people who came from the “first village,” i.e., the local communities. Mushrooming new religious sects in big cities are also interpreted as “substitute communities.” The psychological root of fascist and national socialist movement in the first half of twentieth century can be found in the communitarian sentiment, with Hitlerjugend and similar substitute communities.
Some non-Western politicians and writers criticize the idea of human rights as biased by the Western values. Communists represented by the Soviet Union have pointed out the “bourgeois character” of the concept of human rights. Even after 1989, when the Soviet bloc collapsed, China and North Korea are refusing the Western accusations for their infringements on human rights. Islamic writers have pointed out the Christian or secular bias of the concept of human rights. They sometimes accuse the human rights arguments as neo-imperialist attempt at intervention into the non-Western world.
Some economists criticize the idea of human rights as too microscopic. Robert Malthus argued that, however moralistically we behave, the structural relationship between population and supply of food will bring about mass starvation. Although his assumption about the supply of food was too pessimistic, the imbalance between growing population and the possible limitation of resources has become more serious than in the age of Malthus. The environmental crisis, a holocaust for which no specific persons are responsible, is threatening the mankind in a macroscopic scale.
6. Humanity and Animals:
Human rights have been defined as rights which any human being as human being have. There are several problems concerning “what is human being?” and “why only human beings?” Recent introduction of new technologies has complicated the problems.
Human life is the fundament on which the whole human cultures and civilizations are erected. Orthodox theological doctrines have taught that human life is the gift of God which human beings are not allowed to dispose of. Pains before death is the ordeal God had imposed on human beings which must be accepted as they are. This doctrine is to some extent a specifically Christian doctrine. Even in the Christian Western world, there are schools which challenge the position.
Suicide happens when a person feels that his/her prospective life is not worth living. The history of the arguments concerning the right to commit suicide has more than two millenniums, even if we limit our scope in written documents. Ancient Greeks seem to have regarded suicide as a morally neutral act. The suicides of Ajax and Jocasta were neither praised nor accused. The death of Socrates was heroically depicted by Plato, because his cause for choosing death was noble. Suicide itself was not praised. The suicide of Roman philosopher Seneca was the result of his conflict with the tyrant Nero. He called his suicide as “gate to liberty.”
It is Christianity which prohibits suicide as sin, although Arthur Schopenhauer could not find any passage in the Bible which prohibits suicide. Samson died, crying “let me die with the Philistines.” (Judges 16:30) Jesus said, “the good shepherd giveth his life for the sheep.” (John 10:11) As for Moses’ commandment “thou shall not kill” (Exodus 20;13), the Hebrew word for “kill” here does not include suicide. A Jewish Bible (Tanakh: A New Translation of the Holy Scriptures, 1985) translated it as “you shall not murder.”
Emile Durkheim divided suicide into egoistic, altruistic and anomic. Japan has the tradition of glorifying altruistic suicide such as hara-kiri of samurais and the suicide attacks by kamikaze pilots, which are sometimes called the precursor of Islamic suicide bombers.
Soseki Natsume, the representative novelist of Japan, ideated a future society in which every individual will become so independent and autonomous that it becomes the human dignity to determine the end of life for oneself. From the primary school onward, teachers will teach how to die elegantly. For the ones who cannot kill themselves because of cowardice, they can affix a poster “one man wants to die” on the door, then policemen will come and execute it as their job. It is a libertarian’s paradise written in 1905.
Jurists have long discussed the beginning and end of human life, which, technical trivia apart, entails the beginning and end of Rechtsfähigkeit. Is abortion (killing of human embryos) a crime, and even a murder? As for the end of life, shall we substitute the traditional criterion of cessation of pulse and breathing with flattening of brain wave? After the cessation of the activity of brain, they think continuing to pulsate and breathe is meaningless. Euthanasia is another topic which is related to the problem of the “quality of life.” Libertarians argue that a life which has not the human quality is meaningless.
If the quality of human life consists in the sense of pleasure and happiness, do not have other animals the same sense. Perhaps in the process of the struggle for existence, other species between chimpanzee and homo sapience perished, making possible the assertion that we only are the “image of God.” If some of intermediate species (Neanderthals, for example) had survived, their legal status must have given rise to very difficult problems. Genes of apes are almost the same as human ones. They have some levels of intellect. They must have sentiments we can sympathize. Why shall they not have Rechtsfähigkeit?
One of the difficult problems with animal rights doctrine is the problem of drawing a line between those who can be treated as the subject of right and those who cannot be. A Buddhist monk in pre-modern Japan could not kill a mosquito which was sucking his blood, because he believed it had a soul.
Thank you very much for this very interesting
paper. May I bring you
some requests and suggestions.
On a formal point of
view, your article needs a bibliograhy ( 10
titles about), cross
references ( 4 or 5 headwords) and the
indication
of your affiliation.
On the substance, your long quotation of Lao
Tse is very interesting,
but not adapted tothis Encyclopedia: please
mention it, but don't quote it. I would
appreciate a transformation of
your chapter 5 by including also Macpherson and
Dumont
Comments:The article is very well written. It covers a multitude of ideas aboutindividualism like Descartes, Rousseau, Aristotle, Freud, Hobbes etc.Some may wonder why no mention is made of collectivism as collectivismis regarded as an antidote to individualism. Comments:The article is written with good familiarity with origins and meaningsof the concept. It would be improved significantly if theauthor starts with what the article covers topics X, Y, and Z with focuson X, because X is inthe author's view central to the current debates on rights, forinstance. The first section is a meticulous linguistic explorationof origins and meanings of rights. Just adding one sentence or two inthe beginning like "Discussing rights inevitably leadsus to examine a number of different origins of rights in some Westernlanguages because the meanings of rights arebroad and somewhat ambiguous, inheriting different legal traditions andadhering to linguistic practices." would clarify the direction in whichtheauthor brings readers in the article. Comments:Thank you very much for this paper. To the remrks brought by T.Inogushi,I would add the request of a tentitles bibliography, the indication of headwords as cross references andyour affiliation