How can human rights exist?

A philosophical question that many people have about human rights is how such rights can exist.

The most obvious way human rights arise is through national and international law, created by laws, customs and judicial decisions. At the international level, human rights norms exist through treaties that have turned them into international law. For example, the right of a person not to be in slavery or servitude in Article 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe, 1950) and in Article 8 of the International Covenant on Civil and Political Rights (UN 1966) exists because these treaties establish it. At the national level, human rights norms exist because, through legislation, court decisions or custom, they have become part of the law of the land. For example, the right against slavery exists in the United States because the 13th Amendment to the US Constitution prohibits slavery and servitude. When rights are included in international law, we speak of them as human rights; but when they are enacted in national law, we more often describe them as civil or constitutional rights.

Being enshrined in national and international law is obviously one way in which human rights exist. But many believe that it is not the only way. If human rights exist only through laws, their availability depends on domestic and international political developments. Many people have sought a way to support the idea that human rights have deeper roots and depend less on human decisions than on legal acts. One version of this idea is that people are born with rights, that human rights are somehow innate or inherent to people (see Morsink 2009). One way in which normative status can be inherent in people is that they are God-given. The US Declaration of Independence (1776) states that people are “endowed by their Creator” with natural rights to life, liberty and the pursuit of happiness. From this perspective, God, the supreme lawgiver, has instituted some basic human rights.

Rights plausibly attributable to a divine decree must be very general and abstract (life, liberty, etc.) so that they can be applied to thousands of years of human history, not just to recent centuries. But modern human rights are specific, and many of them involve modern institutions (for example, the right to a fair trial and the right to education). Even if people are born with God-given natural rights, we need to explain how to move from these general and abstract rights to the specific rights found in modern declarations and treaties.

Attributing human rights to God’s commandments may give them a secure status on a metaphysical level, but in a very diverse world it does not make them practically secure. Billions of people do not believe in the God of Christianity, Islam and Judaism. If people do not believe in a God or in the kind of God that prescribes rights, and if you want to base human rights on theological beliefs, you have to convince those people of a theological view that supports rights. This will probably be even harder than convincing them of human rights. Legislation at the national and international level provides a much more secure status for practical purposes.

Human rights can also exist independently of legal acts, being part of genuine human morality. All human groups seem to have morality in the sense of imperative norms of interpersonal behaviour underpinned by reasons and values. This morality contains specific norms (e.g., the prohibition of intentionally killing an innocent person) and specific values (e.g., valuing human life). If almost all human groups have a morality containing norms prohibiting murder, these norms may partly constitute the human right to life.

The idea that human rights are norms contained in all human morality is attractive but has serious difficulties. Although recognition of human rights around the world has grown rapidly in recent decades (see 4. Universal human rights in a world of diverse beliefs and practices), there is no global moral unanimity on human rights. Declarations and treaties on human rights aim to change existing norms, not just to describe the existing moral consensus.

Another way to explain the existence of human rights is to say that they exist mainly in true or justified ethical views. In this regard, to say that there is a human right against torture is basically to say that there are good reasons to believe that the use of torture is always morally wrong and that it should be protected against. Such an approach would see the Universal Declaration as an attempt to formulate a justifiable political morality for the whole planet.