.: From “right” to “human”: Human Rights through the Philosophical Anthropology’s gaze

by Giacomo Pezzano (giacomo.pezzano@binario5.com; I of 3)

I. Where are Human Rights?

The problematic of Human Rights (HR) is definitely important politically, ethically and even ideologically: they concern not only a new system of categories used to “classify” the reality and the human actions, but a parameter of intervention and law. HR are a crucial and difficult question owing to the economic, politic and religious tensions, which are probably increasing in the next years: they are an international question, they are the international question, the question of internationality itself. They questions the “sovereignty” of states, the right of a state to non-intervention in its internal affairs, and this produces a paradox: when states violate rights which are defined in a over-national way, it is to them that we must address to make these same rights being respected [Cassese 2009; Habermas-Taylor 1998; Wasak 1982].

The general debate on HR in the contemporary societies empathized most the “rights-side” of the question, the juridical meaning and possibility of such a right, the social and political forms of its promotion and diffusion, the international modalities of its global “penetration” (if not exportation or imposition). Even philosophically, the debate often has as main object the juridical-formal elements, the political theory (“do HR require democracy? do liberty and autonomy take place only inside a democratic space?”) and the investigation of the forms of power and institutions that HR call into question, require and expect to realize [Hayden 2001; Honneth 2011].
The academic study of human rights has been dominated by lawyers, and if this may be explained by the fact that the concept has been developed to a large extent through national and international law, the consequence is that the field of HR has become a technical, legal discourse, and lawyers dominate it because they are technical experts: law appears to provide objective standards that protect the concept of HR from philosophical, moral and political controversy. Therefore, philosophy often ends up with commenting – certainly in a meaningful way and carrying out an important task – specific decisions of the national and international courts, when not with observing that it is not important to “define” the rights, because it is much more urgent to “conquer” and “keep” them. In this perspective, critics have often remarked that making implicit or explicit appeals to some account of human nature (HN) is highly controversial and resists achieving the degree of consensus required for establishing the legitimacy of any moral doctrine founded upon an account of HN, so that HR should be better considered a great conquest of the homo societatis over the homo biologicus: HR would be in no way co-essential with HN, men would need to realize that their rights are not nature-given, because they are a permanent historical conquest [Alston 2007; Bobbio 1990; Cranston 1973].
In this scenario, we do not yet have an enough clear idea of what HR are, but we cannot establish the existence of a human right just by declaring it to be one: a judge on an international bench cannot resolve conflict by fiat, the resolution must be reasoned and even if the list of HR in current international law are authoritative, it does not give us all we need. Said otherwise, if the law contributes to greater determinateness and it is especially good at moving from particular cases to more general understanding of what is at issue, not all increases in determinateness are increases in determinateness of sense: in fact, the latter has to do specifically with determinateness in the criteria for correct and incorrect use of the term. We will not reach sufficient determination of sense without contribution from philosophy, but it is unquestionable that alone it won’t do the job [Nickel 2006; Gewirth 1982]. In other words, too much attention on the substantive “rights” risks to erase the adjective “human”: talking about HR means giving a description of what being and become human is, namely, answering the question what are and how could and should (wo)men live?

II. How to find HR?

HR are first of all, at least in part, a device for thinking about the real, and for expressing our thoughts and feelings, but there is the danger to produce a HR inflation, a devaluation of them caused by a too huge production of HR currency [Wellman 1999]: if we are to understand HR’s discourse and practice, we have to analyse this concept, and this is the goal of the philosophy. We generally agree that HR derive from “human standing” or “human nature”, but have virtually no agreement about the relevant sense of these two supposedly criteria-providing terms. Universality has been grounded – at one hand – on the inter-national or trans-national feature of the HR, or – on the other hand – on an abstract conception of human dignity which is not enough for the comprehension of the human side of HR: a satisfactory account of human rights should contain some adumbration of that exceedingly vague term human dignity, not in all of its varied uses but in its role as a ground [Griffin 2008; Orend 2002].

But we encounter soon a paradox: human rights are etched in the HN, but at the same time – because many of them deal with contemporary problems and institutions – they are not transhistorical: how can we clarify this paradox and solve the ambiguous relationship between the nature and history, or, better said, the ambiguous fact of a natural which seems to give itself only through the historical?

To keep together the universality of the philosophical analysis and the plurality of the experiences and possibilities, and to be able to bring about a rethinking of the whole of the International law of HR, we need more than a “disciplinary” approach: to understand the human rights we have to refer not only to the general philosophical work and investigation, but rather to the contemporary philosophical anthropology (PA). Only PA can shape a view able to conciliate HR’ universalism and pluralism, by describing a conception of HN able to keep together uni(versali)ty and plurality. PA offers an approach which is not as much “interdisciplinary” [Freeman 2011], but rather transdisciplinary, owing to its capacity to make dialoguing biology and philosophy, natural and human sciences: PA – more a specific Theorieprogramm than a simple Sub-disziplin – is the best and perhaps the only instrument to inquire the binding between nature and culture – thus, between universalism and pluralism [Fischer 2008].

According to the PA’s paradigm, we have to inquire the ambiguous HR status’s transformation through continuity. HR – at one hand – are the heir of the natural rights, because use of the term “human rights” began at the end of the XVIII century, while before the talk was instead of “natural rights”: the two terms come from the same continuous tradition, they have largely the same extension, though different intentions [Griffin 2008]. Yet – at the other hand – there is a “slipping” in the transition from the “natural” to the “human”, because the contemporary concept of HR differs from, and goes beyond that of natural rights: i.e., HR are far more concerned to focus the positive role of the state, recognize the importance of family and community in individuals’ lives, and are far more internationalists. But this does not deny the evolution of the natural rights into the human rights: HR are HN rights, namely, the rights rooted in the HN, which emerge as the most important object of the analysis. The publicity for the legal and social recognition of HR must necessarily be based on the assumption that some kind of “nature” or natural foundation commands the recognition of these rights: if this is generally accepted, we still need to accept that this kind of nature is the human one [Harrison 2002].