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A CRITIQUE OF H.L.A HART’S CONCEPT OF HUMAN RIGHTS


Project topic for Philosophy department

CHAPTER ONE

INTRODUCTION

Background to the Study

The doctrine of human rights rests upon a particular fundamental philosophical claim: that there exists a rationally identifiable moral order, an order whose legitimacy precedes contingent social and historical conditions and applies to all human beings everywhere and at all times. On this view, moral beliefs and concepts are capable of being objectively validated as fundamentally and universally true. The contemporary doctrine of human rights is one of a number of Universalist moral perspectives. The origins and development of the theory of human rights is inextricably tied to the development of moral universalism. The history of the philosophical development of human rights is punctuated by a number of specific moral doctrines which, though not themselves full and adequate expressions of human rights, have nevertheless provided a number of philosophical prerequisites for the contemporary doctrine. These include a view of morality and justice as emanating from some pre-social domain, the identification of which provides the basis for distinguishing between ‘true’ and merely 'conventional’ moral principles and beliefs. The essential prerequisites for a defense of human rights also include a conception of the individual as the bearer of certain ‘natural’ rights and a particular view of the inherent and equal moral worth of each rational individual.

Human rights are said to be possessed equally, by everyone. A conventional corollary of this claim is that everyone has a duty to protect and promote the human rights of everyone else. However, in practice, the onus for securing human rights typically falls upon national governments and international, inter-governmental bodies. Philosophers such as Thomas Pogge argue that the moral burden for securing human rights should fall disproportionately upon such institutions precisely because they are best placed and most able to effectively perform the task.

On this reading, non-governmental organizations and private citizens have an important role to play in supporting the global protection of human rights, but the onus must fall upon the relevant national and international institutions, such as the governments of nation-states and such bodies as the United Nations and the World Bank. One might wish to argue that, for example, human rights can be adequately secured by the existence of reciprocal duties held between individuals across the globe. However, ‘privatizing’ human rights in this fashion would ignore two particularly salient factors: individuals have a tendency to prioritize the moral demands of those closest to them, particularly members of their own family or immediate community; individuals’ ability to exercise their duties is, to a large extent, determined by their own personal financial circumstances.

Thus, global inequalities in the distribution of wealth fundamentally undermine the ability of those in the poorer countries to reciprocate assistance provided them by those living wealthier countries. Reasons such as these underlie Pogge’s insistence that the onus of responsibility lies at the level of national and international institutions. Adequately protecting and promoting human rights requires both nation-states ensuring the adequate provision of services and institutions for their own citizens and the co-operation of nation-states within international institutions acting to secure the requisite global conditions for the protection and promotion of everyone's human rights.

With specific reference to the area under study Hart is one of the many theorists on human rights and law who believes that there is one basic natural law from which we derive the moral relationship which we have with each other. Hart claims that if we can recognize the existence of at least one basic or natural right, it is the equal right to liberty. This right is implied negatively as a basis for justifying interference in the freedom of others to ultimately be able to protect the liberty of all persons, based upon this idea of the freedom of men being a natural right. Emerge two principle concepts that make this right to liberty function. In essence Hart contends that firstly, there is a "right to forbearance on the part of all others from the use of coercion or restraint against him (the individual)”. And secondly, that the man "is at liberty to do any action which is not one coercing or restraining or designed to injure other persons”. Within the realm of the right to liberty, each man consequently is able to stop others from coercing him, and may do whatever he feels the need to do as long as it does not endanger or threaten others.

The philosophy of human rights addresses questions about the existence, content, nature, universality, justification, and legal status of human rights. The strong claims made on behalf of human rights (for example, that they are universal, or that they exist independently of legal enactment as justified moral norms) frequently provoke skeptical doubts and countering philosophical defenses. Reflection on theses doubts and the responses that can be made to them has become a sub-field of political and legal philosophy with a substantial literature (Stanford Encyclopedia of Philosophy). It is under this sub-field of political and legal philosophy that Hart is classified.

1.2       Statement of the Problem

Hart argued that all rights are reducible to a single fundamental right which he referred to ad “equal rights of all men to be free”. He submitted that if we can recognize one basic or natural right it is the equal right to liberty. This entails that each individual is free to do whatever he or she wants but the act must not coerce another person or interfere with the liberty or freedom of another. It is a man’s natural right to speak his mind but he must do that without interfering in another man’s natural freedom to be happy, it is a man's natural liberty to walk naked if he pleases but then another's liberty will keep that man from doing so because the later has the liberty to not see a person walking naked. When all these rights are analyzed they go into and interfere with others’ fundamental rights. This is the problem this research shall be addressing in particular reference to Hart’s theory of human rights.

1.3       Aim and Objectives

This research work intends to achieve the following aims and objectives: which includes these.

To critically analysis the concept of human rights by Hart and to such the solution to the inconsistencies that may be present in this concept.

  1. To review the concept of human right and remove all the weakness or loophole these former works may have had.
  2. To trace the historical evolution of the concept of and identify the original of the term and what it meant to the amount of scholarship throughout to our modern day understanding of the term.
  3. To unveil a philosophical look at the concept as proposed by earlier works and especially as proposed by that and a scholarly conclusion by the researcher, including a personal understanding of the critique, will be put forth.

However, many other objectives shall be achieved n order to give researchers or readers who wish to find an easy to read and renders tend materials on the critical analysis of the concept of human rights by Hart an available reference work.

1.4       Scope and Limitations

The scope of this study is limited to H.A.L. Hart's concept of human rights, with the sole aim of evaluating the concept as to whether it is respected in our contemporary society Nigeria, this means that the researchers limitations here is that some of the materials used are art originals, they are translated document and commentaries about H.A.L. Hart’s concept of human rights. This research is concerned with the theory of human rights in particular reference to Hart’s concept of the term.

1.5       Significance of the Study

Human rights have been an issue of constant debate with varying conceptions and understanding brought forward by scholars and various theories have of the term proposed. This study is significant in the part of discussing these theories and in exposing critically Harts understanding of the term. Perhaps this singly means that both theoretical and practical significant may be put together. Its theoretical significant is that it will be a source of literature for further studies in this area, While the practical significance may be such that this study draws attention to the fact that there can be an improvement in the application of the said right on human beings especially in Nigeria where imposition is highly noticed.

Human rights have been an issues of constant debate with varying conceptions and understanding brought forward by Scholars and various theories of the term proposed, this study is significant in the part of discussing these theories and in exposing critically, Hart’s understanding of the term.

1.6       Research Methodology

The information needed for this study is drawn mostly from secondary sources that is from existing literature on the topic in forms of text books, journals, periodicals encyclopedia and unpublished materials like lecture notes their, and interest source among others. This study will be ethically analyzed and presented. Te study is descriptive and evaluative in nature.

1.7       Organisation of Chapters

The chapter one of this study is concerned with the introduction, the general background, the statement of the problem, the aims and objectives of the study, scope and limitations and conceptual clarification. The chapter two will make a literature review of the research taking into account the former contributions made by scholars in the area of human rights and their loopholes and shortcomings.

The third chapter of this research shall be discussing Hart's concept of human rights, human right as a concept shall be discussed, the evolution of the term shall be discussed under this chapter and other individual philosophers and scholars that have made various contributions to the term in various ways shall be considered. They include Hugo Grotius, Thomas Hobbes, John Locke and Immanuel Kant. The fourth chapter shall be dedicated to making an appraisal of Hart’s concept of human rights; a critique of Hart’s concept of human rights shall be considered first, then a philosophical criticism of human rights by Hart shall follow, then an epistemological criticism of the term, philosophical justification and a distinction between social habits and social rule. The last and final chapter shall be on the summary, recommendation of the research.

1.8       Definition of Terms and Concept

            For want of clarity, some words need to be clarified

1.8.1    Human Rights

Human rights can be defined as the right which is believed to belong justifiably to everyone by virtue of being human. Human rights are norms that help to protect all people everywhere from severe political, legal, and social abuses. Examples of human right to freedom of religion, the right to a fair trail when charged with a crime, the right not to be tortured, and the right to engage in political activity. These rights exist in morality and in law at the national and international levels.

Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible.

Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law, general principles and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups (web).

Two people can have the same general idea of human rights even though they disagree about which rights belong on a list of such rights and even about whether universal moral rights exist. We shall be making outlining the four major characteristics of human rights under this definition of terms. These characteristics have been made by the Saford Encyclopedia of philosophy and they include;

1.8.2    Human rights and Universality

All living-or perhaps all living persons-have human rights. One does not have to be a particular kind of person or a member of some specific nation or religion to have human right. Included in the idea of universality is some conception of independent existence. People have human rights dependently of whether they are found in the practices, morality, or law of their country or culture. This idea of universality needs several qualifications, however, first, some rights, such as right to vote, are held only by adult citizens or residents and apply only to voting in one’s own country. Second, the human right to freedom of movement may be taken away temporarily from a person who is convicted of committing a serious crime. And third, some human rights treaties focus on the rights of vulnerable groups such as minorities, women, indigenous peoples, and children.

Maurice Cranston held that human rights are matters of “paramount importance” and their violation “a grave affront to justice” (Cranston 67). If human rights did not have high priority they would not have the ability to compete with other powerful considerations such as national stability and security, individual and national self- determination, and national and global prosperity. High priority does not mean, however, that human rights are absolute. As James Griffin says, human rights should be understood as “resistant to trade-offs, but not too resistant (38). Further, there seems to be priority variation within human rights. For example, when the right to life conflicts with the right to privacy, the latter will generally be outweighed.

If someone accepted that there are human rights but held that there is only one of them, this might make sense if she meant that there is one abstract underlying right that generates a list of specific rights. But if this person meant that there is just one such specific right such as the right to peaceful assembly this would be a highly revisionary view. Human rights address a variety of specific problems such as guaranteeing fair trails, ending slavery, ensuring the availability education, and preventing genocide. Some philosophers advocate very short lists of human rights but nevertheless accept plurality. Lest we miss the obvious, human rights are rights. Most if not all human rights are claim rights that impose duties or responsibilities on their addresses or duty bearer. Rights focus on a freedom, protection, status, or benefit for the right holders.

The duties associated with human rights often require actions involving respect, protection, facilitation, and provision. Rights are usually mandatory in the sense of imposing duties on their addresses, but some legal human rights seem to do little more than declare high- priority goals and assign responsibility for their progressive realization. One can argue, of course that goal-like rights are not real rights, but it may be better to recognize that they comprise a weak but useful notion of a right for a defense of the view that not all human rights are rights in a strong sense. A human rights norm might exist as (a) a shared norm of actual human moralities, (b) a justified moral norm supported by strong reasons, (c) a legal right at the national level (where it might be referred of as a “civil” or “constitutional” right), or (d) a legal right within international law. A human rights advocate might wish to see human rights exist in all four ways.


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