Rights:
I.
The Word
“Right”:
The word “right” has several meanings, which are related with each other
etymologically and semantically. In
order to understand the concept of right, we must first study the word.
The word right 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.
Recht, together with Dutch regt and English right, has the same PIE origin.
Droit and Recht are etymological cousins. The Slavic word pravo is the calque of droit and Recht.
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 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 the 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, have been 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 the 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 or tort and compensation. The Greek word for “cause” is aitia (guilt) (cf. the word
“aetiology”).
3)
There are some differences between these
Continental concepts about law and right 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, whereas, 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 about 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, the
question 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. In order to save themselves from this
situation and secure their natural rights, they made a contract and established
a state power whose legislation introduced duties and defined their meum and tuum (mine and thine). Here,
rights are prior to law. Whereas rights
are pervasive, duties which state law introduces 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. As the individuals in the
state of nature are egotists who are not supposed to play the fool, there is no
guarantee of counter-performance where state power does not exist.
John Locke followed Hobbes in the teaching of the primacy of rights. 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 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-Lockean 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 Douglas MacArthur’s
Constitution of Japan (1946) 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, who defined the positive law as coercive order. Legal order is, according to him, composed of
norms which combine conditions and effects and their ultimate effects are
coercion (punishment, civil execution etc.).
Legal duty is to avoid the conditions for coercive effects. Vast areas of human actions which are not the
conditions of coercive effects are the 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 shall punish him independent of my will.
Punishing 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, individuals had the right to revenge for
their suffered damages. In authoritarian
communities, where the state power punishes and executes with its own
initiative, no individuals have rights.
They may “petition” to the authority for the recovery of suffered
damages, but the state is free to adopt or reject it.
Constitutional rights are those
guaranteed by the bill of rights in the constitution. The difference between constitutional
rights ｔｏ fｒｅｅｄｏｍ
and the simple freedom (in the meaning of “not prohibited”) is
that, for the former, 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. Constitutions guarantee the so-called “political
rights” of citizens (right to vote, e.g.) which 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 and as to from when a dying
person becomes rechtsunfähig.
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 (although we can find its germs in the Puritan Revolution in
Britain) 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 their early accomplishment. Feminist movements have succeeded in
abolishing legal inequalities in many countries, although there are still
social problems even in the “developed countries.” 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. The fight against
every kind of discrimination has been the main arena of human rights movements.
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 the human right
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 (Stoic 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. Such thinkers as
Buddha or Mencius are sometimes quoted as precursors of the idea of human
right.
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 or natural right doctrines are not universally
accepted. There are value relativists
and legal positivists, who reject the idea of universal validity of natural law
and natural right as “metaphysical.” Theorists
of the historical school sometimes join their criticism of universal human
rights, because they insist that all the laws are historical.
Among its critics are some utilitarians.
Some of them reject any normative discourse including the concept of
right, because they accept only psychological terms of pleasure and pain. Normative thinkers, however, point out that
they must have presupposed tacitly some normative justification of the pursuit
of pleasures and avoidance of pains.
Individualist utilitarians are in many cases allies of the human rights
school because they presuppose the individual right to pursue happiness. The 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 might
have been not very collectivist. 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 kind of paternalism
contrary to democratic majority principle. There is a dictum of Frederick II: “Alles für das Volk, nichts durch das Volk.”
(Everything
is for the people, nothing is by the people).
Bentham’s inclination to paternalism is apparent as he sent his drafts
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, which
entails self-assertion of individuals.
Communitarianism is not the invention of modern thinkers such as Alasdair
MacIntyre, but shared opinion of the people who lived in a traditional
community, where individuals are born into a community which allots them their (in
most cases, unequal) “places.” What to
do and what to refrain from is determined by the age-old custom and tradition. Disintegration of community and introduction
of the idea of human rights brought about by modernization “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 masters’
benevolence by the subordinates. The
traditionally minded Japanese openly showed antipathy to the introduced word kenri (right) since the second half of
19th century.
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. They sometimes accuse the human rights
arguments as neo-imperialist attempt at intervention into the non-Western world,
though many of such arguments seem to be the justification of oppressive
regimes.
The most radical critics of the idea of human rights are social
Darwinists. In the ancient Greece,
Thrasymachos in Plato’s Republic
declared that justice is the interest of the stronger. It was a matter-of-fact or cynical
observation of the brutal reality.
Callicles in Plato’s Gorgias,
on the other hand, claimed the “right” of the stronger. In modern times, Charles Darwin depicted the
animal world as survival of the fittest. Whereas Darwin’s observation was a scientific
hypothesis, the so-called Social Darwinists espoused that the survivors
deserved their privilege. They have
their own concept of “rights,” which is very different from the egalitarian
ideas of universal human rights.
Some economists criticize the idea of human rights as unrealistic and
microscopic. Robert Malthus argued that,
however moralistically we behave, the structural relationship between
population and supply of food will bring about mass starvation. We may generalize his point to the limit of
resources compared with the ever-growing population. The environmental crisis, a possible catastrophe
for which no specific persons are responsible, is threatening the mankind in a
macroscopic scale. Some argue that the
concept of rights offers no remedy to the problem.
6. Right to Life and Death
The alpha and omega of Hobbes’
normative world is the right to life. In order to defend this right, people
make contract and establish government.
If the government threatens individuals’ right to life, the contract
became null and void for them. As there
is no normative coercion to those who are sentenced to death, there must be
physical coercions. Jailors lead
criminals to execution with armed men. (Leviathan Chap.14) The collectivist Rousseau teaches otherwise: “When
the sovereign says to him, ‘your death is convenient to the state,’ he must
die, because on this condition he has lived in safety until then.” (Social
Contract, II, v)
Orthodox theologians have taught
the duty to life. In their doctrine, 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. We should live through whichever pains and
indignities. However, the idea of “duty to life” is challenged by the concept
of “the right to meaningful life,” implying that we have no duty to live
meaningless life, a life without quality.
Euthanasia and the “dignified death” is a topic which is related to the
problem of the “quality of life.” The arguments which justify suicide claim the
right to death.
Suicide happens when a person
feels that his/her prospective life is not worth living. Ancient Greeks seem to have regarded suicide
as a morally neutral act. The suicides
of Ajax and Jocasta were neither praised nor accused. Roman philosopher Seneca called his suicide
as the result of his conflict with the tyrant Nero as “the 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, “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 1905 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.
People who cannot kill themselves because of cowardice can affix a
poster “one man wants to
die” on the door, then policemen will come and execute
it as their job.
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 mankind’s claim 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.
One of the difficult problems
with animal rights doctrine is the problem of drawing a line between those who
can be treated as the subjects 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.
Bentham, Jeremy, An Introduction to the Principles of Morals and
Legislation, London, 1781.
Dworkin, Ronald, Taking Rights Seriously, London & Cambridge, Mass.,
1977.
Engelhardt, Tristram, The Foundation of Bioethics, New York, 1986.
Kelsen, Hans, General Theories of Law and State, Cambridge Mass., 1945.
MacIntyre, Alasdair, After Virtue, London, 1981.
Maritain, Jacques, Les droits de l’homme et la loi naturelle, New York, 1942 (The Rights of Man and
Natural Law, Translated by Doris C.Anson, New York, 1943).
Rawls, John, A Theory of Justice, Oxford, 1972.
Singer, Peter, Animal Liberation, New York, 1977 (2nd ed., 1990)
Warrender, Howard, The Political Philosophy of Hobbes: His Theory of
Obligation, Oxford, 1957.