Abstract
In this chapter, we review the concept of human rights and the emergence and development of human rights thinking in history. Three competing conceptions of human rights are discussed. Their different theoretical foundations and divergent practical implications will be illustrated. Finally, questions such as the Confucian perspective on human rights and the limitations of human rights discourses will be addressed.
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Notes
- 1.
If it is moral legitimacy that we are talking about, then the right is called a “moral right”. If it is legal legitimacy that we are talking about, then the right is called a “legal right”.
- 2.
The right to housing understood as entitlement to minimal decent housing is a positive right. That is to say, something should be done to make it happen that everyone has a shelter. By contrast, to claim that everyone has an equal right to acquire housing is to say that no one should be discriminated and prevented to acquire housing that is available to others. Such a right would be called a negative right, requiring no positive action to uphold the right, but only restraint from acting against the right.
- 3.
As pointed out by Dupré, to recognize the indigenous inhabitants of the New Territories have Indigenous rights means that “reasonable amounts of state resources be allocated to the provision of these rights” (Chapter 4, p. 63).
- 4.
To recognize the indigenous inhabitants of the New Territories as having a right in the Small House Policy means that (1) the indigenous inhabitants have a legitimate interest; (2) the government owes them a duty; (3) they are justified to make a claim in defense of their legitimate interest.
- 5.
According to Alan Gewirth (1982), the full structure of a right is given by the formula: “A has a right to X against B by virtue of Y”. It takes four parts to make up a right: A, the right holder; X, the scope of the right; B, the addressee of the right; Y, the basis of the right (i.e. in what capacity or on what condition does the right holder possess the right). Human rights are particularly related to the last part, the basis of the right. In the case of human rights, the basis is simply on one’s humanity. This set of rights does not have any further condition and it applies to all human beings. Hence human rights are regarded as unconditional and universal.
- 6.
The Vietnamese “boat people” were people from Vietnam seeking asylum in Hong Kong in escape from Communist rule beginning from the mid-seventies. Many of them were not recognized by the Hong Kong government as refugees, a title which carries certain rights as recognized by the international community.
- 7.
Roman Law can be divided into three categories: ius naturale, ius gentium, and ius civile. Ius naturale is not so much a code stipulated by the mundane authority as a way of moral thinking, which kept alive the Greek idea of universal and rational standard of justice. The Roman jurist Ulpian remarked that ius naturale was that which nature, not the state, assures to all human beings, whether they are Roman citizens or not. Ius gentium is supposed to be common to all legal systems. It recognized certain rights of non-Roman citizens, and applied to cases that involved foreigners. Ius civile applied to Roman citizens. See Tuck (1979, p. 9), Stein (1988, p. 44), and Haakonssen (1996, pp. 18–19).
- 8.
- 9.
The rights enumerated in the British Bill of Rights (1689) were essentially conceived as rights of the Englishmen as recognized by the English government. The French Declaration of the Rights of Man and the Citizen (1789) covered both human rights and citizen’s rights. Human rights are universal for all human beings while citizen’s rights are only available to citizens of a country.
- 10.
The Book of Filial Piety, Chapter 9. For a full English translation of the text and a philosophical analysis, see Yu (2015). This quotation is from p. 157.
- 11.
From the “Tai Shi” chapter of the Book of Documents (Legge, 1960, p. 283).
- 12.
In his seminal paper “Two Concepts of Liberty”, Isaiah Berlin deals with “two major conceptions of liberty in the history of idea” (Berlin, 1969, p. ix) I am arguing here that just as there are multiple conceptions of liberty, there are multiple conceptions of human rights. I follow Dworkin and make a distinction between concept and conception (Dworkin, 1977, pp. 134–136; 1986, pp. 71–72).
- 13.
C. B. MacPherson points out that at the root of classical liberalism is possessive individualism, which regards human beings as owners, starting from an owner of oneself to an owner of external resources: “[T]he difficulties of modern liberal-democratic theory lie deeper than had been thought…. [T]he original seventeenth-century individualism contained the central difficulty, which lay in its possessive quality. Its possessive quality is found in its conception of the individual as essentially the proprietor of his own person or capacities, owing nothing to society for them. The individual was seen neither as a moral whole, nor as part of a larger social whole, but as an owner of himself” (MacPherson, 1962, p. 3).
- 14.
Karl Marx regards Locke’s ideas of individual rights as the basis of modern capitalism: “Locke’s view is all the more important because it was the classical expression of bourgeois society’s idea of right as against feudal society, and moreover, his philosophy served as the basis for all the ideas of the whole of subsequent English political economy” (Marx, 1951).
- 15.
For John Locke, the term “property” is sometimes used in the narrow sense to mean one of the three rights. But sometimes he uses it in the broad sense to cover all the three rights. Property in the narrow sense is called “estate” in the latter case: “their lives, liberties, estates, which I call by the general name – property” (Locke, 1988, Book II, Section 85).
- 16.
For a discussion of a right to heritage preservation, see Ying, Chapter 5, p. 80ff. It is possible to argue for the idea of collective rights. For the discussion here, it is enough to point out the limitations of the understanding of human rights as property rights of individuals.
- 17.
That is, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights. The two Covenants are reprinted in Cranston (1973, Appendix B).
- 18.
Dworkin argues that a person who professes to take right seriously must accept two ideas. One is human dignity. The other is political equality.
- 19.
- 20.
James Nickel uses the concept of “decent or minimally good life”, which is clearer in meaning than the expression “human dignity”: “The great range of rights in the Universal Declaration, including privacy, due process, nondiscrimination, and welfare, raises the question of whether any unifying idea ties human rights together. One familiar and helpful view suggests that the idea of a decent or minimally good life for all people is such a unifying concept” (Nickel, 1987, p. 51).
- 21.
For a discussion of the need to control the proliferation of rights claims, see Sumner (1987, pp. 9–10).
- 22.
Nicomachean Ethics 1094b: “Our account will be adequate if its clarity is in line with the subject-matter, because the same degree of precision is not to be sought in all discussions…. So we should be content … to demonstrate the truth sketchily and in outline …. It is a mark of an educated person to look into each area for only that degree of accuracy that the nature of the subject permits” (Aristotle, 2000, pp. 4–5).
- 23.
For example, in the case of abortion, there is a clash between the pregnant woman’s right in her own body and the foetus’s right to life. Possible responses include: limiting the foetus’s right to life to those who are beyond a certain stage of development or by limiting the pregnant woman’s right in her own body by setting conditions on legal abortion (i.e. not abortion on demand).
- 24.
For a discussion of the ways to handle clashes of multiple values including clashes between human rights and other social values, see Yu (2016). Prioritization, compartmentalization, contextualization, and restriction (Yu, 2016, pp. 205–208) are more likely ways to avoid clashes, rather than ways to deal with real clashes. For real and unavoidable clashes, proportionality and compensation are crucial in determining what has to be done.
- 25.
In general, human rights can be regarded as side constraints of public policy. Public policy has its own goals, but they can be launched only if they comply with human rights. Positive rights such as a right to minimally decent housing can also be understood as setting a minimal target for housing policy.
- 26.
In the same way, members of a happy and harmonious family may not find it necessary to talk about the rights and obligations of each member, and they may think that trying to be precise with rights and obligations will not do any good to the family. However, when the relation becomes sour, the talk of rights and obligations becomes crucial. The same also applies to other kinds of human relationship, such as friendship.
- 27.
What is said here about human rights can also apply to people’s quest for justice. Michael Sandel regards justice as necessary, even though he regards it as remedial in nature (Sandel, 1982, pp. 169, 183).
- 28.
For a discussion of human rights as minimal morality, see Yu (2005, pp. 65–69) in particular.
- 29.
Rights are different from high priority goals, and the difference consists in the bindingness of rights. “Rights are distinctive not only in their high priority and definiteness but also in their mandatory character. It is these three features - high priority, definiteness and bindingness - that makes the rights vocabulary attractive in formulating minimal standards of decent government conduct. This character would be lost if we were to deconstruct rights into mere goals or ideals” (Nickel, 1987, p. 18). “[R]ights are claimed and exercised in the present. They are not goals for the future and cannot be legitimately withheld” (Nathan, 1987, p. 112).
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Yu, Kp. (2023). Approaches to Human Rights: Concepts, Conceptions, and Controversies. In: Yung, B., Mok, F.K.T., Wong, B. (eds) Rights and Urban Controversies in Hong Kong. Governance and Citizenship in Asia. Springer, Singapore. https://doi.org/10.1007/978-981-99-1272-8_2
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