PHIL 104 (STOLZE)

Notes on James Nickel, Making Sense of Human Rights, chapters 1-6

Chapter 1: The Contemporary Idea of Human Rights

• Defining Features of Human Rights• Old and New Rights• The International Protection of Human Rights

Eight Defining Features of Human Rights

• Mandatory norms with rightholders, addressees, and scopes

• Universal in the sense of protecting all people

• High priority norms with strong justifications

• Not dependent for their existence on recognition by particular governments or on legal enactment at the national level

• International standards of evaluation and criticism that are not restricted by national boundaries

• Political norms whose primary addressees are governments rather than interpersonal standards

• Numerous and specific norms dealing with matters such as security, due process, liberty, equal citizenship, and basic welfare

• Minimal standards that constrain rather than replace legislation and policy-making at the national level

Old and New Rights

Rights today compared with older conceptions of rights are:

--more egalitarian

--less individualistic

--more internationally oriented

Chapter 2: Human Rights as Rights

• Elements of Rights• Rights and Goals• Problems with “Claiming One’s Rights”• Rights and Duties in Morality and Law

Four Elements of Rights

• Rightholders• Scope or Object• Addressees• Weight

Rights and Goals

• Rights have the following three features: (a) they have high priority, (b) they are definite, and (c) they are mandatory.

• Nickel distinguishes rights from goals or ideals, because the latter only have the first two features in common.

Problems with “Claiming One’s Rights”

• The notion of “claiming a right” is ambiguous and can mean:

(1) insisting that one has a right to something;

(2) triggering an already recognized right;

(3) demanding compliance with a recognized right in the face of a threatened violation

• Another problem: who is the claimant?• Finally, no one activity exhausts what we can do with rights:

“Besides claiming rights, we can recognize them, question them, take them into account, disregard them, respect them, and use them as the basis for a decision” (p. 28).

Rights and Duties is Morality and Law

• The Entitlement Theory = rights are “claims-to” certain benefits• The Entitlement-Plus Theory = rights are (a) “claims-to” certain

benefits and (b) “claims-against” certain parties to supply these benefits

• The Legally Implemented Entitlement Theory

Chapter 3: Making Sense of Human Rights

• Human Rights as Minimal Standards for Governments• Who Has Human Rights?• Assigning Responsibilities for Human Rights• Scope, Weight, and Trade-Offs• Are Human Rights Inalienable?• The Existence of Human Rights• How Human Rights Guide Behavior

Human Rights as Minimal Standards for Governments

Human rights are a “political morality of the depths” (p. 36); and their “modality” is “must do” not “would be good to do”; according to Nickels, human rights should be minimal standards for four reasons:

(1) Ensures their high priority and universality;

(2) Leaves room for democratic decision-making at the national level;

(3) Makes them acceptable to countries who prize their independence and autonomy;

(4) Makes them more likely to be feasible in the vast majority of the world’s countries.

Who Has Human Rights?

• Problems with simply saying “all human beings everywhere and at all times” (p. 37)

Assigning Responsibilities for Human Rights

• Primarily governments, but also international organizations and especially individuals.

• Ex: torture (p. 41)

Scope, Weight, and Trade-Offs

• Nickel argues that “it is not plausible to suggest that all human rights are absolute, that they can never be suspended or sacrificed for other goods” (p. 42).

• Human rights and their exercise are generally subject to regulation by law “so that they harmonize with each other and with other important considerations” (p. 42).

• Ex: possible conflict of free speech and right to a fair trial (pp. 42-3)

Are Human Rights Inalienable?

• Inalienabilty = “a right cannot be permanently forfeited or given up entirely” (p. 44).

• Nickel argues that human rights “are hard to lose but that few are strictly inalienable” (p. 45).

The Existence of Human Rights

• Human rights are often said “to exist independently of acceptance or enactment as law” (p. 45)

• Ex: Not just as wishes or aspirations but as any or all of the following: (a) rights within a justified morality that is “well supported by appropriate reasons” (p. 47), (b) rights within the domestic legal system, or (c) rights within international law

Ex: torture

How Human Rights Guide Behavior

• Ex: a right to freedom from torture “guides behavior by defining torture, forbidding everyone to engage in it, and imposing a duty on governments to protect people against it” (p. 48)

• However, difficulties remain with the implementation of this and other rights (pp. 48-51)

Chapter 4: Starting Points for Justifying Human Rights

• Prudential Reasons for Human Rights• Utilitarian and Pragmatic Justifications for Human Rights• Four Secure Claims

Prudential Reasons for Human Rights

• See Nickel’s model argument on pp. 55-6• Objection: stronger groups may take advantage of weaker

groups when creating a system of rights (p. 57)

Utilitarian and Pragmatic Justifications for Human Rights

• Utilitarianism = “a theory in philosophical ethics that…holds that we should judge norms and institutions entirely on the basis of their likely consequences for the general welfare” (p. 59)

Four Secure Claims

• A secure claim to have a life• A secure claim to lead one’s life• A secure claim against severely cruel or degrading treatment• A secure claim against severely unfair treatment

“A unifying idea for these four secure claims is that, perfectly realized, they would make it possible for every person living today to have a lead a life that is decent or minimally good” (p. 62); moreover, “all four principles should be thought of as requirements of human dignity” (p. 66)

Chapter 5: A Framework for Justifying Specific Rights

• Six Tests for Specific Rights• Resources and Rights • Deriving Rights from Other Rights

Six Tests for Human Rights

• Substantial and Recurrent Threats• The Importance of What is Protected• Can It Be a Universal Right?• Would Some Weaker Norms Be as Effective?• The Burdens are Justifiable• Feasible in a Majority of Countries

Resources and Rights

• The Feasibility Standard• Identifying and Counting Costs• What Happens to Otherwise Justified Rights that Fail the

Feasibility Test?

The Feasibility Standard

• Inability to fulfill a moral or legal duty is generally an excuse from that duty.

• The genuine inability of the addresses to fulfill their duties does not cancel a pre-existing right.

• The duties imposed by rights should be ones that a majority of the addresses are able to fulfill.

Identifying and Counting Costs

• Conflict costs• The Costs of Using Weaker Means• Implementation Costs

Deriving Rights from Other Rights

• A general or abstract R1 => more specific R2• Effective implementation of R1 => implementation of R2• R2 => makes violations of R1 less likely

Chapter 6: The List Question

• Determinacy through Law• Rights Expansion and the Devaluation of Rights• Rawlsian Ultraminimalism• Unity and Diversity among the Families of Human Rights

Determinacy through Law: Families of Human Rights

• Security Rights• Due Process Rights• Liberty Rights• Rights of Political Participation• Equality Rights• Social Rights• Rights of Distinctive Groups (e.g. women, children, minorities,

indigenous people)

Rights Expansion and the Devaluation of Rights

• Rights expansion has led to a need for critical evaluation and quality control, especially regarding “new rights”

• Ex: Environmental rights (pp. 97-8)

Rawlsian Ultraminimalism

• Right to Life• Right of Emigration• Property• Formal Equality

John Rawls restricts his list to allow for (a) a strong doctrine of tolerance for other “decent” states as long as they are not “outlaws” and (b) to specify when outside intervention into a country is permissible; Nickel criticizes Rawls’ approach as too narrow (pp. 101-2)

Unity and Diversity among the Families of Human Rights

• Three Sources of Diversity among Human Rights (p. 103):(1) There are “lots of ways in which people can be harmed and

mistreated.”

(2) “The underlying values are several not unitary.”

(3) “The institutions needed to protect the underlying values against the standard threats and abuses are various.”

• Ex: Hospital Analogy (pp. 103-4)• Three Sources of Unity among Human Rights:

(1) Functional Role

(2) Harmony

(3) Intersupport