Philosophical Foundation Of Human Rights [2 ed.] 3031322916, 9783031322914, 3031322924, 9783031322921, 9783031322945
This textbook presents a range of classical philosophical approaches in order to show that they are unsuitable as a foun
112 12 9MB
English Pages 425 Year 2023
Preface to the Second Edition
Preface
Contents
Abbreviations
List of Figures
1: Introduction
1.1 The Aims of the Lecture
1.2 The Concept of Human Rights
1.3 The Concept of Philosophy
1.4 The Reasons in Favor of a Philosophical Analysis and Foundation of Human Rights
Reading Recommendations
Case Law
2: Utilitarian and Aristotelian Approach
2.1 The Utilitarian Approach
2.2 The Aristotelian Approach
2.3 Requirements for an Adequate Theory of Foundation
Reading Recommendations
3: The Social Contract Approach
3.1 The Theory of Social Contract
3.2 Thomas Hobbes
3.3 John Locke
3.4 Jean-Jacques Rousseau
3.5 John Rawls
3.6 Why Social Contract Theories Cannot Serve as a Foundation for Human Rights
3.7 A New Approach After World War II
Reading Recommendations
Case Law
4: The Human Dignity Approach
4.1 Human Dignity in International Law
4.2 The History of the Notion “Human Dignity”
Reading Recommendations
Case Law
5: The Human Dignity Principle I
5.1 Dignity as a Value Judgment
5.2 Dignity as a Specific Category of Value
5.3 Personhood as the Value Standard of Dignity
5.4 “Me-Dignity” and General Human Dignity
5.5 The Risk of Empirical Error
Reading Recommendations
6: The Human Dignity Principle II
6.1 The Equiprimordiality Thesis
6.2 Dependence on Passive Recognition of Personhood
6.3 Dependence on Active Recognition of Personhood
6.4 Verification or Failing of Falsification?
6.5 The Generality of the Equiprimordiality Thesis
6.6 Human Dignity in Cases of Doubt
Reading Recommendations
7: From Human Dignity to Human Rights
7.1 What Is a Right?
7.2 What Is Meant by Having a Right?
7.3 Deriving Duties from Values
7.4 Deriving Rights from Duties
Reading Recommendations
8: Human Rights Concerning the Protection of Physical and Mental Integrity
8.1 The Multitude of Human Rights
8.2 The Ban on Inhuman/Degrading/Cruel Treatment and Torture in International Law
8.3 Philosophical Analysis
8.4 Critique of the Case Law
Reading Recommendations
Case Law
9: Freedom of Movement and the Rights Under Detention
9.1 The Habeas Corpus Rights
9.2 Humane Living Conditions While Under Detention
9.3 The Function of Article 10 ICCPR
9.4 Total Institutions
9.5 The Right to Freedom of Movement
Reading Recommendations
Case Law
10: Human Rights Concerning the Protection of Intellectual Integrity
10.1 The Freedom of Information
10.2 Freedom of Expression
10.3 Freedom from Censorship
10.4 The Right to Free Assembly and the Right to Free Association
10.5 Restriction Clauses
Reading Recommendations
Case Law
11: The Human Right to Privacy
11.1 The History of Privacy Rights
11.2 The Need for Privacy
11.3 The Particular Rights to Privacy in Light of Goffman’s Theory
11.3.1 The Right to Privacy in One’s Home
11.3.2 The Right to Private Life
11.3.3 The Right to Freedom of Marriage
11.3.4 The Right to Freedom of Establishing a Family
11.3.5 The Right to Family Life
11.3.6 The Right to Privacy in One’s Correspondence
11.3.7 The Right to Data-Protection
11.4 Protection of Social Ties (“Rootedness”)
11.5 Limiting Clauses of the Codified Human Rights to Privacy
Reading Recommendations
Case Law
12: The Right to Freedom of Conscience
12.1 The History of the Legal Concept “Conscience”
12.2 The Mechanism of Conscience
12.3 Is the Right to Freedom of Conscience a Human Right?
Reading Recommendations
Case Law
13: The Right to Spiritual Freedom
13.1 The Generality of Freedom of Religion
13.2 The Freedom to Believe or Not to Believe
13.3 The Freedom to Practice Religion
13.4 Religious Practices and the Maintenance of Personhood
13.5 The Criticism of Case Law
13.6 The Timeliness of Religious Freedom
Reading Recommendations
Case Law
14: The Right to Life
14.1 The Codification of the Right to Life
14.2 The Unique Character of the Right to Life
14.3 The Existence-as-Attribute Thesis
14.4 The Basis Thesis
14.5 The Sanctity of Life Thesis
14.6 The Mortal Fear Thesis
14.7 The Function of the Right to Life
Reading Recommendations
Case Law
15: Social Human Rights
15.1 The Distinction Between Liberal and Social Human Rights
15.2 The Codification of Social Human Rights
15.3 The List of Codified Social Human Rights
15.4 The Goods of the Social Human Rights and Its Relevance for Humane Living Conditions
15.5 Addressees of Social Human Rights
15.6 Duties to Refrain from Doing Something and Duties To Do Something
15.7 “Social Human Rights” As State Goal Resolutions
15.8 The Redundancy of Social Human Rights
15.9 The Right to Natural Resources
15.9.1 The Rights to Water
15.9.2 Right to Compatible Global Climate
Reading Recommendations
Case Law
16: Right to Asylum
16.1 The Right to Asylum in International Law
16.2 Is There a Moral Human Right to Global Free Movement?
16.3 Is There a Moral Human Right to Asylum?
16.4 Right to Asylum for Asylum Seekers Inside the State Borders
16.5 The Refoulement Ban in Positive Asylum Law
16.6 Right to Asylum for Asylum Seekers Outside the State Borders
Reading Recommendations
Case Law
17: Fake Human Rights
17.1 The Right to Property
17.1.1 The Concept of Property
17.1.2 Philosophical Conceptions of Property
17.2 Collective Human Rights
17.2.1 Collective Rights in Positive Law
17.2.2 Critique of the Idea of Collective Rights
Reading Recommendations
Case Law
18: The Principle of Liberty
18.1 Liberty in Positive Law
18.2 The Content of the Principle of Liberty
18.3 Rules and Principles
18.4 The Philosophical Foundation of the Principle of Liberty
18.5 The Legal Instruments for Taking Care of Liberty
Reading Recommendations
Case Law
19: The Principle of Equality
19.1 The General Appearance of Equality Within Human Rights Codifications
19.2 Is There a Human Right to Equality?
19.3 Is There a Human Right Against Discrimination on Reasons of “Race”, Color, Sex, Etc.?
19.4 Is There a Human Right Against Discrimination on Reasons of Making Use of Human Rights?
Reading Recommendations
Case Law
20: Rights in Conflict
20.1 Methods for Resolving Norm Conflicts
20.2 Freedom of Action v. Freedom of Action
20.3 Margin Human Right v. Freedom of Action
20.4 Margin Human Right v. Margin Human Right
20.5 Freedom of Action v. Core Human Right
20.6 Margin Human Right v. Core Human Right
20.7 Core Human Right v. Core Human Right
Reading Recommendations
Case Law
21: Do You Still Remember: The Answers
Index
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Springer Textbooks in Law
Paul Tiedemann
Philosophical Foundation of Human Rights Second Edition
Springer Textbooks in Law
Springer Textbooks in Law compiles high-quality educational content aimed at undergraduate and graduate students in all areas of law. All self-contained volumes are authored by accomplished academics and suitable for use in class as well as individual study. Many of them include chapter abstracts, definitions of technical terms, cases and self-assessment exercises, as well as recommended reading sections. This series is an invaluable resource for students and lecturers alike and spans the full range of topics in international and European law, including fundamentals of law and comparative law. Special attention is paid to current and emerging topics such as IT law, intellectual property, human rights as well as dispute resolution, mediation, arbitration – and many more.
Paul Tiedemann
Philosophical Foundation of Human Rights Second Edition
Paul Tiedemann Justus Liebig University Giessen, Germany
ISSN 2509-999X ISSN 2510-0009 (electronic) Springer Textbooks in Law ISBN 978-3-031-32291-4 ISBN 978-3-031-32292-1 (eBook) https://doi.org/10.1007/978-3-031-32292-1 © Springer Nature Switzerland AG 2020, 2023 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
V
Preface to the Second Edition The second edition of this textbook takes into account the human rights issues and problems that have arisen as a result of the global Corona epidemic as well as important developments in human rights jurisprudence (climate protection judgement of the German Federal Constitutional Court of 2021, abortion judgement of the US Supreme Court of 2022). Numerous inaccuracies of the first edition have been corrected and important passages have been made clearer and easier to understand. I thank the reviewers of the first edition for important comments that I was able to take into account in the second edition. My special thanks go to Felix van Groningen, who checked the complete book once again with regard to correct expression as well as grammatical and orthographical correctness. Paul Tiedemann
Frankfurt a. M., Germany 2023
Preface This textbook presents a series of lectures, which I held between 2016 and 2020 during the winter semester at the Justus Liebig University in Giessen. It was aimed primarily at German law students who have to pass a course in a foreign language in preparation for the exam. The lecture was also always very well attended by Erasmus and other exchange students from all over the world. Most of the participants were already advanced in their law studies. Nevertheless, philosophical thinking was still completely new and foreign to them. The textbook is therefore particularly suitable for advanced law students, who are at the same time beginners in the field of philosophy. The style of an oral lecture was largely retained. The textbook presents the classical approaches of legal and social philosophy in order to show that they are unsuitable as a foundation of human rights. Only the conception of human dignity provides a sufficient basis if it is developed out of the Kantian distinction of price and dignity. Deriving human rights from the principle of human dignity makes it possible to identify the crucial characteristic of human rights, namely the protection of personhood. This makes it possible (1) to distinguish real moral human rights from spurious ones, (2) to analyze the protection scope of codified human rights according to the criteria of “core” and “yard,” and (3) to have a starting point for the discovery of new, unwritten human rights. This philosophical basis makes a substantial criticism of the case-law on human rights possible and allows a substantial contribution to its improvement with regard to legal certainty, clarity, and cogency. The textbook is primarily addressed to advanced law students who are interested in a deeper understanding of human rights. But the textbook is also suitable for students of humanities who want to delve into human rights as well as for anyone in the political or social arena who refers to human rights or fights for the enforcement of human rights. It is not the aim of this textbook to deal with the entire stock of the international human rights law. Some relevant human rights are not mentioned (e.g., the ban of slavery or the right to use one’s own mother tongue or the specific rights of children). Those who study this textbook with sufficient attention, however, should be able to deal with all these real, or alleged, human rights from a solid foundation. The manuscript was completed before the coronavirus pandemic blocked almost all public life worldwide, including severe restrictions on freedoms in the area of some important human rights. It was therefore not possible to discuss the very specific human rights issues in this unique situation. However, readers of this book should be able to properly discuss and resolve these issues. I am full of gratefulness toward Arman Nikkhoo JD, Washington, and Lee University School of Law, Lexington, VA, who corrected the text of the book in terms of grammar, orthography, and style. All remaining insufficiencies are on my own account. I also thank Sophie Reinisch for her great support. She drew some
VII Preface
very important graphics and she did so very carefully, reliably, and in short time. Finally, I thank the Springer Editor Anke Seyfried and Senior Editorial Assistant Manuela Schwietzer for the proven and professional support of the project. Paul Tiedemann
Giessen, Germany March 2020
IX
Contents 1
Introduction.................................................................................................................................. 1
1.1 1.2 1.3 1.4
The Aims of the Lecture................................................................................................................. 4 The Concept of Human Rights..................................................................................................... 5 The Concept of Philosophy........................................................................................................... 14 The Reasons in Favor of a Philosophical Analysis and Foundation of Human Rights................................................................................................................................... 18 Reading Recommendations................................................................................................................ 21
2
Utilitarian and Aristotelian Approach......................................................................... 23
2.1 2.2 2.3
The Utilitarian Approach............................................................................................................... 27 The Aristotelian Approach............................................................................................................ 31 Requirements for an Adequate Theory of Foundation....................................................... 40 Reading Recommendations................................................................................................................ 42
3
The Social Contract Approach........................................................................................... 43
3.1 3.2 3.3 3.4 3.5 3.6 3.7
The Theory of Social Contract...................................................................................................... 46 Thomas Hobbes................................................................................................................................ 47 John Locke.......................................................................................................................................... 49 Jean-Jacques Rousseau.................................................................................................................. 53 John Rawls.......................................................................................................................................... 57 Why Social Contract Theories Cannot Serve as a Foundation for Human Rights....... 60 A New Approach After World War II........................................................................................... 62 Reading Recommendations................................................................................................................ 63
4
The Human Dignity Approach........................................................................................... 65
4.1 4.2
Human Dignity in International Law......................................................................................... 68 The History of the Notion “Human Dignity”........................................................................... 71 Reading Recommendations................................................................................................................ 78
5
The Human Dignity Principle I.......................................................................................... 79
5.1 5.2 5.3 5.4 5.5
Dignity as a Value Judgment........................................................................................................ 84 Dignity as a Specific Category of Value.................................................................................... 87 Personhood as the Value Standard of Dignity....................................................................... 90 “Me-Dignity” and General Human Dignity.............................................................................. 94 The Risk of Empirical Error............................................................................................................ 97 Reading Recommendations................................................................................................................ 98
6
The Human Dignity Principle II.........................................................................................101
6.1 6.2 6.3 6.4
The Equiprimordiality Thesis........................................................................................................104 Dependence on Passive Recognition of Personhood..........................................................105 Dependence on Active Recognition of Personhood............................................................110 Verification or Failing of Falsification?......................................................................................116
X
Contents
6.5 6.6
The Generality of the Equiprimordiality Thesis.....................................................................116 Human Dignity in Cases of Doubt..............................................................................................119 Reading Recommendations................................................................................................................121
7
From Human Dignity to Human Rights.......................................................................123
7.1 7.2 7.3 7.4
What Is a Right?.................................................................................................................................126 What Is Meant by Having a Right?................................................................................................133 Deriving Duties from Values.........................................................................................................135 Deriving Rights from Duties.........................................................................................................138 Reading Recommendations................................................................................................................140
8
Human Rights Concerning the Protection of Physical and Mental Integrity................................................................................................................141
8.1 8.2 8.3 8.4
The Multitude of Human Rights..................................................................................................143 The Ban on Inhuman/Degrading/Cruel Treatment and Torture in International Law........................................................................................................................................ 144 Philosophical Analysis....................................................................................................................146 Critique of the Case Law................................................................................................................153 Reading Recommendations................................................................................................................157
9
Freedom of Movement and the Rights Under Detention................................159
9.1 9.2 9.3 9.4 9.5
The Habeas Corpus Rights............................................................................................................162 Humane Living Conditions While Under Detention.............................................................165 The Function of Article 10 ICCPR.................................................................................................166 Total Institutions...............................................................................................................................168 The Right to Freedom of Movement..........................................................................................172 Reading Recommendations................................................................................................................173
10
Human Rights Concerning the Protection of Intellectual Integrity.........175
10.1 10.2 10.3 10.4 10.5
The Freedom of Information........................................................................................................179 Freedom of Expression...................................................................................................................181 Freedom from Censorship.............................................................................................................183 The Right to Free Assembly and the Right to Free Association........................................185 Restriction Clauses...........................................................................................................................186 Reading Recommendations................................................................................................................198
11
The Human Right to Privacy...............................................................................................201
11.1 11.2 11.3 11.4 11.5
The History of Privacy Rights.......................................................................................................206 The Need for Privacy.......................................................................................................................208 The Particular Rights to Privacy in Light of Goffman’s Theory..........................................210 Protection of Social Ties (“Rootedness”)..................................................................................214 Limiting Clauses of the Codified Human Rights to Privacy................................................215 Reading Recommendations................................................................................................................219
XI Contents
12
The Right to Freedom of Conscience............................................................................221
12.1 12.2 12.3
The History of the Legal Concept “Conscience”.....................................................................224 The Mechanism of Conscience....................................................................................................228 Is the Right to Freedom of Conscience a Human Right?.....................................................232 Reading Recommendations................................................................................................................236
13
The Right to Spiritual Freedom........................................................................................237
13.1 13.2 13.3 13.4 13.5 13.6
The Generality of Freedom of Religion.....................................................................................239 The Freedom to Believe or Not to Believe...............................................................................240 The Freedom to Practice Religion...............................................................................................242 Religious Practices and the Maintenance of Personhood..................................................244 The Criticism of Case Law..............................................................................................................253 The Timeliness of Religious Freedom........................................................................................257 Reading Recommendations................................................................................................................258
14
The Right to Life..........................................................................................................................259
14.1 14.2 14.3 14.4 14.5 14.6 14.7
The Codification of the Right to Life..........................................................................................261 The Unique Character of the Right to Life...............................................................................263 The Existence-as-Attribute Thesis..............................................................................................264 The Basis Thesis.................................................................................................................................266 The Sanctity of Life Thesis.............................................................................................................268 The Mortal Fear Thesis....................................................................................................................270 The Function of the Right to Life.................................................................................................271 Reading Recommendations................................................................................................................273
15
Social Human Rights................................................................................................................275
15.1 15.2 15.3 15.4
The Distinction Between Liberal and Social Human Rights..............................................280 The Codification of Social Human Rights.................................................................................280 The List of Codified Social Human Rights................................................................................283 The Goods of the Social Human Rights and Its Relevance for Humane Living Conditions..........................................................................................................................................284 Addressees of Social Human Rights..........................................................................................289 Duties to Refrain from Doing Something and Duties To Do Something.......................291 “Social Human Rights” As State Goal Resolutions................................................................294 The Redundancy of Social Human Rights................................................................................296 The Right to Natural Resources...................................................................................................298 Reading Recommendations................................................................................................................303
15.5 15.6 15.7 15.8 15.9 16
Right to Asylum...........................................................................................................................305
16.1 16.2 16.3 16.4
The Right to Asylum in International Law...............................................................................308 Is There a Moral Human Right to Global Free Movement?.................................................311 Is There a Moral Human Right to Asylum?...............................................................................314 Right to Asylum for Asylum Seekers Inside the State Borders.........................................316
XII
Contents
16.5 16.6
The Refoulement Ban in Positive Asylum Law.......................................................................318 Right to Asylum for Asylum Seekers Outside the State Borders......................................320 Reading Recommendations................................................................................................................321
17
Fake Human Rights...................................................................................................................323
17.1 17.2
The Right to Property.....................................................................................................................326 Collective Human Rights...............................................................................................................334 Reading Recommendations................................................................................................................339
18
The Principle of Liberty..........................................................................................................341
18.1 18.2 18.3 18.4 18.5
Liberty in Positive Law....................................................................................................................343 The Content of the Principle of Liberty....................................................................................349 Rules and Principles........................................................................................................................350 The Philosophical Foundation of the Principle of Liberty..................................................354 The Legal Instruments for Taking Care of Liberty.................................................................355 Reading Recommendations................................................................................................................359
19
The Principle of Equality.......................................................................................................361
19.1 19.2 19.3
The General Appearance of Equality Within Human Rights Codifications...................363 Is There a Human Right to Equality?..........................................................................................365 Is There a Human Right Against Discrimination on Reasons of “Race”, Color, Sex, Etc.?..............................................................................................................................................368 Is There a Human Right Against Discrimination on Reasons of Making Use of Human Rights?.....................................................................................................................371 Reading Recommendations................................................................................................................373
19.4 20
Rights in Conflict........................................................................................................................375
20.1 20.2 20.3 20.4 20.5 20.6 20.7
Methods for Resolving Norm Conflicts.....................................................................................379 Freedom of Action v. Freedom of Action.................................................................................380 Margin Human Right v. Freedom of Action.............................................................................381 Margin Human Right v. Margin Human Right........................................................................383 Freedom of Action v. Core Human Right..................................................................................385 Margin Human Right v. Core Human Right.............................................................................386 Core Human Right v. Core Human Right..................................................................................389 Reading Recommendations................................................................................................................396
21
Do You Still Remember: The Answers...........................................................................399
Index�������������������������������������������������������������������������������������������������������������������������������������������������� 411
XIII
Abbreviations Afghanistan Constitution
of Afghanistan of 03/01/2004 (7 https:// web.a rchive.o rg/web/ 20101127090617/) Banjul Charter Banjul Charter on Human and Peoples’ Rights of 01/06/1981 (7 https://au.i nt/en/ t r e a t i e s / a f r i c a n - charter-h uman-a nd- peoples-rights) BGH B u n d e s g e r i c h t s h o f (Federal Court of Justice) Constitution of Bosnia Bosnia and Hercegovina and Hercegovina of 31/05/1994 (7 http:// www.ccbh.ba/osnovni- akti/ustav/ ?title=preambula; English: 7 http:// www.ohr.int/?page_ id=68220) BVerfG Bundesverfassungsgericht [Federal Constitutional Court of Germany] BVerwG Bundesverwaltungsgericht [Federal Administrative Court of Germany]
CAT Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10/12/1984 (UNTS 1465, 85 7 https:// treaties.u n.o rg/Pages/ showDetails.aspx?obji d=080000028003d679) CETS Council of Europe Treaty Series No 194 (2003) and following (7 https://www.c oe. i n t / e n / web / c o nve n tions/full-list) CJEU Court of Justice of the European Union ECHR European Convention of Human Rights of 04/11/1950 and additional protocols: ETS No 5 (7 https://www. coe.i nt/en/web/conventions/full-list) ECLI European Case Law Identifier: (7 https:// curia.e uropa.e u/jcms/ jcms/P_126035/en/) EComHR European Commission of Human Rights ECtHR European Court of Human Rights
XIV
Abbreviations
ETS European
Treaty Series No 1 (1949) to No 193 (2003) (7 https://www.c oe. i n t / e n / web / c o nve n tions/full-list
FCNM Framework
Convention for the Protection of National Minorities of 01/02/1995 (ETS No 157, 7 https:// www.c oe.i nt/en/web/ conventions/full-list) EU Asylum Directive 2011/95/EU of the European Par- GG Grundgesetz – Basic Directive Law (constitution) of liament and of the Germany of Council of 13/12/2011 23/05/1948 (7 https:// on standards for the w w w.bu n d e s t ag .d e / qualification of thirdgrundgesetz; English: country nationals or 7 h t t p s : / / w w w . stateless persons as gesetze-im-internet.de/ beneficiaries of interenglisch_gg/) national protection, for a uniform status GRC Convention Relating for refugees or for perTo The Status of Refusons eligible for subgees of 1951 (7 https:// sidiary protection, and w w w .u n h c r . for the content of the org/4d934f5f9.pdf) protection granted ICCPR International CoveOJEU L 337/9 of nant on Civil and Polit20/12/2011 (7 https:// ical Rights of e u r -l e x .e u ro p a .e u / 19/12/1966 (UNTC IV, l e g a l -c o n t e n t / D E / 4 7 https://treaties.un. ALL/?uri=celex:320 o r g / P a g e s / 11L0095 ViewDetails.aspx?src= EUChartaFR Charter of FundaT R E AT Y & m t d s g _ mental Rights of the n o = I V -4 & European Union of chapter=4&clang=_ 12/12/2007 (Official en) Journal EU 2007 C ICD International Classifi303/1 7 https://eur- cation of Diseases lex.e uropa.e u/legal- Covec o n t e n t / ICESCR International nant on Economic, EN/TXT/?uri=celex: Social, and Cultural 12012P/TXT) Rights of 19/12/1966 ECRML European Charter for (UNTS IV, 3 7 https:// Regional or Minority treaties.u n.o rg/Pages/ Languages of V i e w D e t a i l s . 05/11/1992 (ETS No aspx?src=TREATY& 148, 7 https://www. m t d s g _ n o = I V - coe.i nt/en/web/con3&chapter=4& ventions/full-list) clang=_en)
XV Abbreviations
KSG K l i m a s c h u t z g e s e t z
(Climate Protection Act) OJ EU Official Journal of the European Union UDHR Universal Declaration of Human Rights, adopted by the UN General Assembly on 10/12/1948 (7 https:// w w w .u n .o r g / e n / universal-declaration- human-rights/) UN Charter Charter of the United Nations Organization of 26/06/1945 ( 7 https://www.un. org/en/sections/un- charter/un-c harter- full-text/) UNCRC Convention on the Rights of the Child of 20/11/1989 (UNTS IV,
11 7 https://treaties. u n .o r g / P a g e s / ViewDetails.aspx?src= T R E AT Y & m t d s g _ no=IV-1 1&chapter= 4&clang=_en) UN(O) United Nations (Organization) UNESCO United Nations Educational, Scientific and Cultural Organization UNTC United Nations Treaty Collection, [chapter], [Number] UNTS United Nations Treaty Series [volume], [page] USA Constitution of the USA (7 https://www. senate.g ov/civics/constitution_item/ constitution.htm) WHO World Health Organization
List of Figures Fig. 1.1 Hermeneutic circle��������������������������������������������������������������������������������������������� 6 Fig. 1.2 Just order��������������������������������������������������������������������������������������������������������� 13 Fig. 1.3 Corrupted order����������������������������������������������������������������������������������������������� 14 Fig. 1.4 Unjust order����������������������������������������������������������������������������������������������������� 14 Fig. 2.1 The trolley problem. (© Sophie Reinisch)������������������������������������������������������� 29 Fig. 2.2 The hospital case. (© Sophie Reinisch)����������������������������������������������������������� 29 Fig. 3.1 Hobbes’ conception����������������������������������������������������������������������������������������� 49 Fig. 3.2 Locke’s conception ����������������������������������������������������������������������������������������� 50 Fig. 3.3 Virginia bill of rights section 1 ����������������������������������������������������������������������� 51 Fig. 3.4 Rousseau’s conception������������������������������������������������������������������������������������� 54 Fig. 3.5 French declaration of the rights of man and citizens������������������������������������� 57 Fig. 3.6 Rawls’conception��������������������������������������������������������������������������������������������� 58 Fig. 5.1 The specific terms and sub-terms of the term “value”. (© Paul Tiedemann)���������������������������������������������������������������������������������������� 88 Fig. 6.1 Dignity distribution desk (© Sophie Reinisch)��������������������������������������������� 117 Fig. 8.1 Article 3 ECHR��������������������������������������������������������������������������������������������� 144 Fig. 8.2 Article 1 CAT������������������������������������������������������������������������������������������������� 145 Fig. 8.3 Article 16 (1) CAT����������������������������������������������������������������������������������������� 145 Fig. 8.4 The circle of deprivation of personhood. (© Sophie Reinisch)������������������� 150 Fig. 8.5 Jews cleaning a street in Vienna with their hands (1938). (© Yad Vashem Photo Archive, Jerusalem. 1495/9)������������������������������������� 152 Fig. 8.6 Article 2 (2) GG��������������������������������������������������������������������������������������������� 153 Fig. 8.7 Report of the EComHR on the “Greek Case “ ������������������������������������������� 154 Fig. 9.1 Article 5 (1) ECHR��������������������������������������������������������������������������������������� 163 Fig. 9.2 Article 10 (1) ICCPR������������������������������������������������������������������������������������� 166 Fig. 9.3 Article 7 ICCPR ������������������������������������������������������������������������������������������� 166 Fig. 9.4 Process of hospitalization. (© Paul Tiedemann)������������������������������������������ 170 Fig. 10.1 Freedom of information and expression������������������������������������������������������� 181 Fig. 10.2 Right to assembly and association ��������������������������������������������������������������� 185 Fig. 10.3 Restriction clauses����������������������������������������������������������������������������������������� 187 Fig. 10.4 Performative contradiction��������������������������������������������������������������������������� 194 Fig. 10.5 “Core” and “Yard” of a positive human right ��������������������������������������������� 197 Fig. 11.1 Article 8 and 12 ECHR��������������������������������������������������������������������������������� 207 Fig. 12.1 Listen to God’s commandments������������������������������������������������������������������� 225 Fig. 12.2 Article 14 Belgian constitution of 7. Feb 1831��������������������������������������������� 227 Fig. 12.3 Article 9 (1) ECHR��������������������������������������������������������������������������������������� 227 Fig. 12.4 Lawful and unlawful personalities���������������������������������������������������������������� 234 Fig. 12.5 Forced evil actions����������������������������������������������������������������������������������������� 235 Fig. 13.1 Profane places: skyline of Frankfurt������������������������������������������������������������� 245 Fig. 13.2 Sacral places: pyramids of Giza ������������������������������������������������������������������� 245 Fig. 13.3 “My Wife and my Mother-in-Law”. (© Public Domain (anonymous German postcard of 1888))����������������������������������������������������� 247
XVII List of Figures
Fig. 13.4 Fig. 13.5 Fig. 13.6 Fig. 14.1 Fig. 14.2 Fig. 15.1 Fig. 15.2 Fig. 15.3 Fig. 16.1 Fig. 16.2 Fig. 16.3 Fig. 16.4 Fig. 16.5 Fig. 16.6 Fig. 16.7 Fig. 17.1 Fig. 17.2 Fig. 17.3 Fig. 17.4 Fig. 17.5 Fig. 17.6 Fig. 18.1 Fig. 18.2 Fig. 18.3 Fig. 18.4 Fig. 18.5 Fig. 18.6 Fig. 18.7 Fig. 18.8 Fig. 19.1 Fig. 19.2 Fig. 19.3 Fig. 19.4 Fig. 19.5 Fig. 19.6 Fig. 20.1 Fig. 20.2 Fig. 20.3 Fig. 20.4 Fig. 20.5 Fig. 20.6 Fig. 20.7 Fig. 20.8
LAO-TSE, Tao-Tê-King 76, 182������������������������������������������������������������������� 251 Article 9 ECHR��������������������������������������������������������������������������������������������� 255 Article 4 GG ������������������������������������������������������������������������������������������������� 256 Article 2 ECHR��������������������������������������������������������������������������������������������� 262 Article 2 (2) GG��������������������������������������������������������������������������������������������� 263 Article 22 UDHR ����������������������������������������������������������������������������������������� 281 Article 26 (2) UDHR������������������������������������������������������������������������������������� 285 Article 1 (1) GG��������������������������������������������������������������������������������������������� 291 Article 12 (3) Banjul Charter������������������������������������������������������������������������� 308 Article 14 (1) UDHR������������������������������������������������������������������������������������� 308 Article 16 (1) GG������������������������������������������������������������������������������������������� 309 Article 13 (1) UDHR������������������������������������������������������������������������������������� 309 Article 12 (1) ICCPR������������������������������������������������������������������������������������� 310 Article 33 Geneva Refugee Convention ������������������������������������������������������� 318 Article 3 (1) CAT������������������������������������������������������������������������������������������� 319 Article 17 UDHR ����������������������������������������������������������������������������������������� 326 Article 1 ECHR first Add. Protocol������������������������������������������������������������� 326 Article 14 GG ����������������������������������������������������������������������������������������������� 333 Article 27 ICCPR ����������������������������������������������������������������������������������������� 336 Article 1 (1) UN Resolution 47/135��������������������������������������������������������������� 336 Article 22 (1) Banjul Charter������������������������������������������������������������������������� 337 Constitution Bosnia and Herzegovina ��������������������������������������������������������� 344 Article 4 Declaration of the Rights of Man and Citizen 1789��������������������� 344 Article 24 Constitution of Afghanistan 2004����������������������������������������������� 345 US Constitution��������������������������������������������������������������������������������������������� 346 Article 2 (1) GG��������������������������������������������������������������������������������������������� 347 Freedom of action but not freedom of will. (© Paul Tiedemann)��������������� 353 Freedom of will but not freedom of action. (© Paul Tiedemann)��������������� 353 Process of Balancing������������������������������������������������������������������������������������� 356 Article 1 UDHR ������������������������������������������������������������������������������������������� 363 Article 2 UDHR ������������������������������������������������������������������������������������������� 363 Article 14 ECHR������������������������������������������������������������������������������������������� 364 Article 20 EU Charter����������������������������������������������������������������������������������� 365 Article 3 (1) GG��������������������������������������������������������������������������������������������� 366 Scales (© Sophie Reinisch) ��������������������������������������������������������������������������� 366 Three areas of freedom��������������������������������������������������������������������������������� 379 Freedom of action v. freedom of action������������������������������������������������������� 380 Freedom of action v. margin of HR������������������������������������������������������������� 382 Margin of HR v. margin of HR������������������������������������������������������������������� 383 Freedom of action v. core of HR ����������������������������������������������������������������� 385 Margin of HR v. core of HR ����������������������������������������������������������������������� 387 Core of HR v. core of HR����������������������������������������������������������������������������� 389 Induction of morals/deduction of law. (Created by author, © crowd: Sophie Reinisch; © Man Icon: Sophie Reinisch) ������������������������� 393
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Introduction Contents 1.1
The Aims of the Lecture – 4
1.2
he Concept of Human T Rights – 5
1.3
he Concept of T Philosophy – 14
1.4
he Reasons in Favor T of a Philosophical Analysis and Foundation of Human Rights – 18 Reading Recommendations – 21
© Springer Nature Switzerland AG 2023 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-031-32292-1_1
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Chapter 1 · Introduction
Hermeneutic Circle Hermeneutics is the methodology of interpreting meaningful human action as well as the products of such actions, most importantly in texts (Greek: hermeneia = interpretation). The Hermeneutic Circle refers to the fact that any interpretation is based on, and must start from, a certain pre-understanding of the text. This pre-understanding is based on the context in which the text concerned is integrated. The circle results from the fact that one must already know about the meaning of the text in order to be able to get further knowledge about the meaning of the text. In the first lesson, the term “human rights” is interpreted in the context of the preamble and Article 1 of the Universal Declaration of Human Rights (UDHR) in order to receive an initial pre-understanding.
Rights A right is a non-violent source of power over fellow humans which makes the holder of the right able to steer the behavior of others for the sake of his own protected interests. This ability is caused by normative acceptance. Normative acceptance is based on the belief that the subjects of the right are to be normatively bound (=obliged). So, a right consists of the following 3 elements: 1. Protection Scope (reference to the content of the right) 2. Commandment (reference to the holder—obligee) 3. Belief to be bound (reference to the addressee—obligor) The idea of subjective rights was developed in the Middle Ages by analyzing the meaning of the term “property.”
3 Introduction
Human Rights The term human rights refers to subjective rights that manifest the following properties (see preamble and Article 1 of the UDHR): 55 Generality and Individuality
–– “All members of the human family” are holders of human rights.
55 Unavailability (not created but found)
–– Human beings are “born in rights.” –– Human rights are a matter of “recognition.”
55 Absoluteness
–– Human rights are “inalienable.”
55 Morality
–– Human rights are a matter of the “conscience of mankind.”
55 Universality
–– Human rights are a matter of a “common faith of all peoples of the United Nations.”
55 Super-Positivity
–– Human rights should be “protected by law.”
Philosophy Currently, there are two different understandings of philosophy: 55 Analytic Philosophy: The analysis of (basic) concepts in order to improve our understanding of our own language and thoughts. 55 Naturalistic Philosophy: Natural science without empirical means.
Methods of Analytic Philosophy Revisionist explication of concepts (sharpening): 55 Adequateness (connectability with ordinary language use) 55 Empirical Significance 55 Metaphysical Parsimony 55 Distinctness Descriptive Explication: 55 Transcendental Analysis (investigating the conditions of possibility) 55 Thought Experiments (testing the range and the consequences of certain interpretations of concepts).
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he Reasons in Favor of a Philosophical Foundation T of Human Rights
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1. Appropriate interpretation of the scope of protection of the codified rights. 2. Appropriate interpretation of the limits of restriction of the codified rights. 3. Discovery of new (unwritten) human rights. 4. Distinction between genuine and merely alleged human rights.
1.1 Legal Doctrine Approach
Historical Approach
Philosophical Approach
The Aims of the Lecture
This lecture does not address human rights in the way that is typical of the framework of legal education. Legal education normally consists of an introduction to legal texts that address human rights. Such legal texts tend to be the chapters concerning fundamental rights in national constitutions or international treaties or covenants specifically dealing with human rights. The student should not only know the content of these texts, but also how to apply them. For that purpose, students must study the case law of the highest national courts related to human rights and the case law of the international human rights courts and similarly oriented judicial bodies. We can call this approach the legal doctrine approach.Start. Another approach to human rights is the historical one. Under this approach, students study the historical development of human rights from their beginning up through their recent developments. The historical approach sometimes starts with the Cyrus-Cylinder, a law of the Persian king Cyrus from the year 538 BC. Others start with a famous letter written by the Christian lawyer Quintus Septimus Tertullianus Florens (160–220), in which he coined the expression “ius humanus”—human right (Ad Scapulam). A third group of historical stories starts with the English Magna Carta Libertatum of 1215. Most historical presentations, however, start with the Virginia Bill of Rights of 1776. In this course, we will neither follow the legal doctrine approach nor the historical approach—although it will sometimes be necessary to illustrate our results with references to doctrine and history. We will follow the philosophical approach. This is a distinct approach, but it is also closely connected to the doctrinal approach and the
5 1.2 · The Concept of Human Rights
historical approach. Only philosophical analysis makes clear what has really occurred throughout history. Contemporary agents within the historical play very rarely have a sufficient awareness of what they are doing and thinking. Only through philosophical reflection of what happened in history can one begin to explain and reveal the real significance and consequences of ideas developed in the past. Philosophical analysis is not a purely abstract and theoretical venture. Rather, it supports the rationality of case law and doctrine. By uncovering the meaning, significance, and logical consequences of human rights, philosophical analysis can contribute to the improvement of case law and legislation. Skillful philosophical analysis of human rights enables lawyers to develop an independent critical view on case law and makes them capable of finding a convincing argumentation in matters of human rights that may support the interest of their clients and the development of rational human rights case law. Before we can start with the philosophical analysis, we have first to clarify the basic concepts. A lecture on the philosophy of human rights can only start if we have sufficient clearness on the two key concepts: 55 What are we referring to when we talk about human rights and what is meant by “human rights” in the context of this lecture? 55 What do we actually mean when we speak of a philosophical analysis? What is meant by philosophy?
1.2
The Concept of Human Rights
The first question may appear confusing to you. The clarification of what human rights really are is the aim that we want to follow by means of philosophical analyses. Therefore, it seems to be true that this question can only be answered at the end of the lecture and not before we start. It is not possible, however, to begin our investigation if we do not have any idea of the concept that we want to analyze. What we intuitively know about the idea may be nebulous. But without this initial understanding, we cannot begin to say what we are wrestling with. This situation—already knowing something about a certain idea before you can start to collect knowledge
Hermeneutic Circle
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. Fig. 1.1 Hermeneutic circle
about the exact meaning of that idea—is called the hermeneutical circle (see . Fig. 1.1). We must always start with a certain preconception of what we want to discover (= n). Philosophical work, then, consists in the development of a more sophisticated version of this preconception (=n + 1). This new version becomes the preconception of any further analysis (n + 1 = n) and so on. The process only comes to an end if the capacity of our fantasy is exhausted and if we reach the feeling that everything that may possibly be said about the concept has been said. Nevertheless, this is only a temporary end of the analyses. We can never be truly sure whether the extent of our fantasy may expand in the future and give rise to new questions that may coerce us into continuing the philosophical analyses. So, we first have to determine our provisional understanding of the concept of human rights that should serve as the starting point of our reflections. I start with the element “right” in the concept “human right.” What is meant by “right”? “Right” is meant as a subjective right. The concept of subjective rights was developed slowly in the Middle Ages in the context of discussions about property. Until then, subjective rights were rather alien to traditional legal thinking. The law consisted only of obligations. There were, so to say, only obligors but no obligees. Legal obligations were considered
Right
7 1.2 · The Concept of Human Rights
obligations toward the legislator. If someone did not fulfill his obligations, he was threatened with public punishment, which had no direct effect toward those who were harmed. The Roman private law recognized the procedural right to take legal action against someone who hurt the property of another. But the Roman jurists had no clear awareness of the fact that the right to take legal action depends logically on having a material right to property. Only in the Middle Ages did it become more and more clear that property was not a relationship between human beings and things, but rather a relationship among human beings, more specifically between an obligor and one or more obligees, and thus a material right to which a claimant of legal action may refer. In contrast to liabilities, which are based on individual contracts, the obligations owed to the owner of property were considered the obligations of everyone, independent of any individual contractual relationship with the obligee. A deeper reflection about the question what property actually is led to the result that owners of property are considered as having a certain kind of power over others, according to which they could force these others to respect a certain sphere of belongings or activities of the owner. This was the introduction of the idea of subjective rights. Subjective rights can be understood as a source of power of an obligee over one or more obligors. It is the right holder’s power to steer the behavior of others for the sake of his own interests. Subjective rights only exist where fellow humans accept the power of the right holder by recognizing themselves as obligors toward an obligee. This acceptance is not only a kind of understanding of factual inferiority, but rather a normative acceptance according to which the obligor feels obliged to recognize a certain sphere of freedom of the obligee and to follow his commandments so long as these commandments relate to the sphere of freedom that is the subject of the right. A subjective right, therefore, always has a certain structure. We can distinguish three elements: 1. A subjective right defines a certain scope of power or freedom, which is the content of the right. This aspect of a right is called protection scope. Every single right refers to a specific protection scope. The protection scope can refer to certain material things, like an area of land or particular mobile things (cars, pencils, clothes, etc.). If the protection scope refers to such
Definition
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Chapter 1 · Introduction
material things and if the respective right demands respect of the exclusive power of a certain individual over these things, we talk about property. The protection scope can, however, refer to other spheres of exclusive power, for example, the power to determine what someone wants to speak out loud, or the power to behave in a certain manner etc. In these cases, we talk about freedoms or privileges. 2. The second element of a right is the actual normative element which we call a commandment: Be respectful! Do not touch or infringe upon the scope of protection! Do not disturb me while I am behaving deliberately within the frame of the protection scope! 3. The third element of a right is the conviction of the addressees of the commandment to be normatively bound by that commandment. When members of a particular society collectively believe in certain obligations, the beliefs become a cultural reality. In such cases, well defined rights exist as part of the culture of the society.
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The function of a philosophical foundation of human rights thus becomes clear. As rights are based on a common belief in binding power, it is important to question the basis of this belief. This basis may be formed on the belief that the liability of rights can be irrational or rational. If our belief in rights is based on irrational considerations, then it is possible to destroy it simply by pointing out the irrationality. Human beings are (ideally) rational living entities. They tend to be incapable of feeling bound to ideas which they consider irrational. The task of philosophical reflections is therefore to examine the idea of human rights in terms of a rationally based belief in them. Now I come to the second part of the term “human rights”. What is meant by “human”? The idea of rights is a human idea. It is potentially part of human culture. In this sense we can say that rights are always human rights. Animal rights insofar as animals have their own authentic idea of rights do not exist. The meaning of the concept “human” is so broad and so vague that it is not possible to understand the meaning simply by analyzing the word. We must examine the context in which the word appears in order to find an appropriate pre-understanding of “human.” For that reason, we should look to documents that address human rights.
9 1.2 · The Concept of Human Rights
The most fundamental document for the current conception of human rights is the Universal Declaration of Human Rights that was adopted by the UN General Assembly on December 10, 1948 (UDHR). The preamble of the UDHR provides:
»» Whereas recognition of the inherent dignity and of the
equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind […] Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, […] Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights
Article 1 further provides:
»» All human beings are born free and equal in dignity and rights.
These quotations give a first look of what we may come to understand in the word “human”: 1. All members of the human family are holders of human rights. 2. Human beings are born in rights. 3. Human rights are a matter of recognition. 4. Human rights are inalienable. 5. Human rights are a matter of the conscience of mankind. 6. Human rights are a matter of a common faith of all peoples of the UN. 7. Human rights should be protected by law. The word “human” in “human rights” tells us something about the holder of these rights. All members of the human family are holders of human rights (Alexander & Moore, 2012). Family obviously refers to mankind as such while member obviously refers to each human individual. From this first statement we can grasp the individuality and generality of human rights.
Individuality and Generality
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1 Unavailability
Inalienability
Importantly, the wording in the UDHR differs from that of the preamble of the UN Charter of 26 June 1945. The Charter does not refer to the rights of each member of the human family, but rather to the rights of each human person. We should this difference keep in mind. By which process do human individuals become holders of human rights? The preamble of the UDHR notes that human individuals are born in rights (Beaney, 2017). This expression is to be understood as a metaphor because rights are normative ideas. They belong to the world of thoughts and not to the world of natural facts. The characteristics that human beings are born with are only a matter of natural facts and not a matter of their internal thinking. But what is being said with this metaphor is that there is no act of conferring that endows human beings with human rights. Human rights do not depend on someone arbitrarily or deliberately deciding whether to confer human rights upon another. Humans always have these rights and they have them without any involvement of any authority. Therefore, ascribing human rights to human individuals is not a matter of willingness and decision making, but rather a matter of recognition (Beaney, 2017). Nobody is entitled to decide whether or not human rights should be conferred to a human individual—that is, whether or not a human being is to be considered a holder of human rights. We have only to recognize that human rights have already been conferred to human individuals. What is said by inalienability (Clapham, 2015)? Because human rights are considered as always already being conferred and therefore not based on any possible act of conferring them, human rights must also be considered as something that cannot be revoked. Accordingly, there is no recognizable normative power or recognizable procedures or reasons and justifications for the deprivation of human rights. It is simply not possible to deprive a human individual of their human rights. It follows that human individuals cannot be partially deprived of their human rights by reducing the scope of human rights protections or by making the recognition of human rights a matter of balancing other interests. Inalienability leads to the conclusion that human rights must be considered absolute rights. Specifically, absoluteness means the following: 1. There is absolutely no situation or condition under which it is possible to deny the recognition of one’s
11 1.2 · The Concept of Human Rights
human rights. Criminals, prostitutes, and terrorists have exactly the same rights to the same extent as anybody else. However evil or bad behavior may be, it never leads to the result that someone may have forfeited their human rights. 2. The recognition of human rights can come into conflict with the recognition of other values, rights, and traditions. But whatever the conflict is, human rights always prevail. It is not possible to rank any human right lower than any other value or interest. We should keep in mind that this idea could lead to serious problems if it comes to a conflict between two interests when both of them are protected by a human right. The recognition of human rights is not an act of discovery that we express in propositional sentences of the form “It is the case that …”. Rather, it is a discovery of normative obligations. This becomes clear in the reference to conscience (Cruft et al., 2015). Conscience stands for our convictions in the moral rules to which we feel bound. The reference to the common faith of mankind (Ernst, 2012) claims the universality of human rights. The UDHR claims that the faith in human rights is not only relative to a certain regional or religious tradition or culture. It claims, rather, that it is a common faith of mankind that is recognized and appreciated worldwide by every member of the human family, independent of time, region, or culture. I think it is not difficult to understand that this claim is empirically false. Throughout history and in current times, there have been cultures in the world that do not have an idea of human rights. Therefore, human rights are not a matter of a common faith. The proposition in the preamble cannot deny this empirical fact. It can be understood, rather, as the expression of the belief that it is generally possible to convince mankind, i.e., every member of the human family, of the binding power of certain inalienable human rights. The last relevant claim of the preamble of the UDHR states that human rights should be protected by law (Foot, 1978). From this we can conclude that human rights as defined by the UDHR are not considered legal rights. Otherwise, they would be part of the law and it would not make any sense to say that they should be protected by law.
Absoluteness
Morality
Universality
Super-Positivity
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Chapter 1 · Introduction
Comparatively, it is clear that those human rights, which are codified in several international covenants and treaties as well as in national constitutions, are of course legal rights. What the clause wants to say is that non-legal (moral) human rights should be transformed into legal rights in order to protect them more efficiently. The connection between legally codified human rights and human rights into which human beings “are born” is expressed in the distinction between positive law and its relation to super-positive standards. Human rights must be considered extra-systemic sources of the legal system. This is what is meant when we say that human rights have a super-positive character. “Positive” in this context is not the opposite of “negative.” It means, rather, that the norms of the legal order are put down by the legislator of that system. “Positive” is derived from the Latin past participle of ponere (to put) and means “settled by agreement.” It is the traditional opposite of “natural.” Positive laws, as such, are created by men while natural laws are created by God or by nature. However, I do not use the word “natural” in order to talk about the opposite of “positive.” Instead, I use the word “super-positive” to indicate a kind of law that is not made by the sources of the legal system (legislator, parliament, etc.) but from something else. Furthermore, this extra- systemic source is “super” insofar as that it has a higher rank than the positive law. The higher rank makes it possible for the legal system to be evaluated on such a scale. “Super-positive,” however, does here not mean “natural.” The term leaves it intentionally open what the sources of super-positive law are. The term is thus not already fixed on God or on nature as a source of non-positive law. Generally, when we speak of human rights as super- positive rights, we think of rights in a moral meaning. This does not force us to think that the rules of morality, including moral rights, must be something that are not invented or created by men, but rather revealed by God or by nature. Even if we think of morality as a product of human culture, it is nevertheless not a product of the legal system. Rather, it is something created outside of law, based on standards and considerations that are different from those within the legal system. Thus, moral rules can also be understood as positive (man-made) rules. But from a legal point of view, they can be considered as being super-positive in that they are created beyond the boundaries of the legal system. Moral
13 1.2 · The Concept of Human Rights
rules are an extra-systemic source to which the law may or may not refer. The super-positive characteristic of human rights, in turn, provides for the most important function of these rights. They serve as instruments by which it is possible to evaluate an entire legal system. They are a means to question its justness, corruption, or unjustness. Indeed, the function of a legal system is to produce standards of justice and corruption. But as long as these standards are positive legal standards, they can only function to evaluate particular parts of the legal system as opposed to the legal system as a whole. In other words, you can evaluate the justice of a judicial or administrative decision on the standards of a communal regulation. The justice of the regulation can be evaluated on the standard of the parliamentarian statute. That statute can be evaluated on the standards of the constitution. But there is no legal standard beyond the constitution by which the constitution can be evaluated. In order to evaluate the constitution of a legal system, i.e., the system as a whole, there must be some reference to a super-positive standard—e.g., a moral standard. Human rights are moral standards that lend themselves to the evaluation of legal systems as a whole. A legal system is only legitimate if it is in line with human rights. This is the case if there is no principle conflict between any part of the legal order and human rights (see . Fig. 1.2). A legal system is corrupted if important parts of the legal order are in conflict with human rights and the legal system does not include any self-healing functions (see . Fig. 1.3).
. Fig. 1.2 Just order
Function of Moral Human Rights
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Chapter 1 · Introduction
1
. Fig. 1.3 Corrupted order
. Fig. 1.4 Unjust order
Finally, we can call it an unjust legal order when no important part of it is in line with human rights, which is to say that the legal order is outside the frame of human rights (see . Fig. 1.4).
1.3
The Concept of Philosophy
So far, we have described the preconception of what we want to understand by human rights. You should further recognize that this preconception of the term “human rights” is not undisputed. In particular, many American philosophers share the opinion that human rights are only characterized by their specific content. But they consider these rights to be pure legal rights which have nothing to do with morality. Additional references to this view may be found in the bibliography at the end of this chapter (Raz, 2010; Waldron, 2013). The focus now shifts to the other concept that needs some reflection and clarification. This lecture deals with a philosophical foundation and a philosophical analysis of human rights. Thus, we must clarify what should be under-
15 1.3 · The Concept of Philosophy
stood by “philosophy.” Today we can distinguish between two different conceptions of philosophy. According to the first and more traditional conception, philosophy deals with the world of facts. It is a kind of science that addresses everything that any other science may address. The only true difference to other sciences is that philosophy asks broader questions and comes to more abstract answers. Unlike the empirical sciences, however, it does not use empirical research methods. This is what is called the naturalistic conception of philosophy. According to the second conception, philosophy deals with the meaning of concepts. Its aim is to clarify concepts in order to avoid confusion and to make us able to understand our own thoughts. This is what we call the analytical conception of philosophy. I personally do not share the naturalistic approach. I think that questions concerning the facts of the world are always empirical questions that demand empirical answers. It is the task of empirical sciences to deal with empirical questions and empirical sciences can ask these questions with different levels of abstractness. We do not need a non-empirical discipline in this field. Non-empirical approaches cannot lead to any real understanding and discovery of empirical reality. It might be that something exists beyond the empirical reality. Nevertheless, whatever may lie beyond our empirical world is not accessible to us as human beings. It is not possible to gain any knowledge about it. Naturalistic philosophy therefore tends to replace knowledge with simple speculation and a play of imagination. Although that often sounds very interesting, it is in fact an aspect of science fiction rather than a component of a serious, rational approach. Therefore, I follow the analytic conception of philosophy. The clarification of concepts can give us a clearer understanding of our own thoughts and aims. The clarification of concepts is done by explication. We distinguish between two different sorts of explication— the descriptive and the revisionist explication. The revisionist explication deals with the concepts of ordinary language that are much too vague for the purposes of science, law, and ethics. The vagueness is mostly the result of a more or less intuitive development of the meaning of concepts. The concept of human rights is an excellent example of a concept to which meaning may be intuitively associated. The task of analytic philosophy is
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Naturalistic Philosophy
Analytical Philosophy
Revisionist Explication
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Chapter 1 · Introduction
1 Connectability
Empirical Significance
Metaphysical Parsimony
Distinctness
to improve the concept in order to make it sharper and to delete vagueness as much as possible. It is clear that the explicated concept may not be identical to the original concept in its ordinary language. Nevertheless, the explication is not arbitrary. It is necessary to make sure that the explicated concept is materially adequate in light of the original concept. There must thus be a connection between the original and the explicated concept. Although both do not need to have the same meaning, they must have a similar meaning. The explicated concept must serve the same function and purpose as the original. Whether the explicated concept is materially adequate depends on the purpose. To elaborate, it is possible to explicate the concept of “fish” as “vertebrates that live in the sea” when the purpose is to distinguish different animal habitats in the sea. Such a definition, however, would not be adequate for the purpose of zoological classification. The explicated concept may be different from the original in terms of extension, but not in terms of function. Another requirement of revisionist explication is that the explicated concept must be adequate to reality (empirical significance). It must be possible to state which empirical facts must be given in order to satisfy the notion. This is also true for the revisionist explication of norms. There must be some connection between the normative concept and objective reality. Otherwise, we would be thinking about a normative order for nowhere-land. The explication should also be adequate with respect to what I will call metaphysical parsimony. It is necessary to explicate the notion in question in such a way that its meaning depends as little as possible, or preferably not at all, on metaphysical presuppositions. This becomes clear when we consider the feature of the universality of human rights. The concept of human rights should be explicated in such a way that, if possible, it can be understood by all people regardless of their culture or religion. Metaphysical ideas are almost always, or at least very often, a matter of religious or quasi-religious belief without any possibility of rational confirmation. Metaphysical ideas are therefore dependent on religion, tradition, and other regional and cultural influences that cannot be universalized. Finally, the explication should lead to a distinct concept. Only by means of unambiguous terms are important distinctions possible. Distinctness means that it must always be clear on what conditions and attributes the con-
17 1.3 · The Concept of Philosophy
cept depends, regardless of whether the concept refers to a certain entity or to a specific idea. The other kind of explication is the descriptive explication. This kind of explication does not modify the meaning of the concept, but it should bring the deep structure of its content to light. One of the most prominent methods of descriptive explication is the transcendental analysis as developed by Immanuel Kant. The transcendental analysis investigates the conditions of the possibility of a term. A famous example is the concept of a promise. According to Kant, the binding power (validity) of a promise is based on the fact that holding the promise is the condition of the possibility that promises as a social reality really exist. If people made promises without feeling obliged to honor them, the concept of a promise would lose all meaning. It would become an empty phrase. Thus, liability (binding power) is the condition of the possibility of promises existing or working at all. A very common and useful instrument of philosophical thinking is the so-called thought experiment. Thought experiments are invented short stories with a contra factual scenario. By telling the story, we make use of a particular concept which may be tested through the experiment. A very famous example is Plato’s so-called “Cave Parable.” Plato uses this story in order to show the meaning of the concept “idea.” Thought experiments show the consequences of a particular understanding of a concept. In some cases, the consequences turn out to be absurd. In these cases, the thought experiment shows that our understanding of the concept in question is not appropriate and that we should think about another, better understanding of the concept. In other cases, thought experiments show the range of the concept, which can appear as very surprising but nevertheless meaningful. This explanation might sound very abstract. The next lesson will familiarize you with thought experiments. As I mentioned before, the foundation of human rights is not solely a philosophical business. We must also note the findings of the empirical sciences. Therefore, the lecture is not only a philosophical lecture. Furthermore, we must always ask whether our philosophical or empirical findings can be implemented into the structure of our legal system and our legal thinking. Accordingly, our lecture is neither a pure philosophical one nor a pure empirical one nor a pure juridical one. It is, rather, an interdisciplinary venture on a very sophisticated level.
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Descriptive Explanation
Thought Experiments
Empirical Arguments
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Chapter 1 · Introduction
1.4
1
Vagueness
he Reasons in Favor of a Philosophical T Analysis and Foundation of Human Rights
Finally, in this introduction I want to summarize the reasons why it is useful to climb over the limits of legal doctrine and to reflect on the foundation of human rights in an interdisciplinary manner. There are at least four reasons why it is necessary and useful for jurists to have a proper knowledge about the fundamental ideas behind human rights: 1. The first reason relates to the challenges of appropriate interpretation of those elements in human rights which describe the scope of protection. The definition of the protection scope of many human rights is very nebulous because codifications of human rights tend to use very vague language. This vagueness has advantages and disadvantages. The formulation of the particular human rights in our human rights codifications goes back to particular historical experiences. New sources of human suffering led to new human rights. Nevertheless, human rights are not protocols of former historical events, but rather mechanisms of protection against future risks and dangers to human beings. But therein lies a problem. History does not repeat itself exactly. Future events will never occur exactly the same as those in the past. Therefore, it is necessary to describe the scope of protection of every human right in terms which are wide enough to cover future variants of past threats—that are similar but not identical to those threats of the past. This is why human rights use more or less vague concepts. By doing so, human rights can be what the ECtHR in the case “Tyrer” called a “living instrument.” This vagueness has the advantage that human rights can be applied to new, unpredictable situations. This same vagueness, however, can also lead to a large uncertainty about the proper interpretation of human rights. We are therefore dependent on reasonable and reliable criteria that allow for proper and well justifiable interpretations of the protection scopes of human rights. These criteria are the ideas and principles behind human rights. Without considering these ideas, it is not possible to interpret the scope of protection of the particular human rights in a proper way.
19 1.4 · The Reasons in Favor of a Philosophical Analysis…
Therefore, jurists need some knowledge about the foundation of human rights. 2. The second reason relates to the challenges of appropriate interpretations of the restriction clauses. As you probably know, most human rights in the national and international catalogues are subject to reservations for varying reasons. The stated reasons very often are very vague. For example, some articles of the European Convention of Human Rights provide that the rights therein may be restricted by law and if the restriction is necessary in a democratic society; in the interests of national security, territorial integrity, or public safety; for the prevention of disorder or crime; for the protection of health or morals; for the protection of the reputation or rights of others; for preventing the disclosure of information received in confidence; or for maintaining the authority and impartiality of the judiciary. The wording of these clauses is so wide and vague that it seems that the state can reduce human rights to nothing. Only if you have a clear understanding of the concept of human rights in general and of the particular human right concerned are you then able to define the limits of any possible restriction. Only on the basis of a proper understanding of the foundation of human rights can you then assess the case law about the limits of restriction and criticize it in a serious way that has a chance of convincing judges. 3. The third reason relates to the challenges that are connected to the fact that we can be confronted with new risks and dangers to human life that are beyond the scope of any written human right which require us to ask whether it is possible to formulate new, currently unwritten human rights. Only if we have a proper knowledge about the foundation of human rights are we then able to derive new human rights using these basic principles. A paradigmatic situation which has led to the discovery of a new unwritten human right, was the digital revolution, i.e., the invention of digital information technology and the invention and worldwide setup of the Internet. These developments led to the construction of new and unwritten human rights by national and international supreme courts. The first example, so far as I know, was the declaration of the Right to Informational Self-Determination by the German Federal Constitutional Court in 1983. Meanwhile
Limits of Restriction
New Risks
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Chapter 1 · Introduction
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Fake Human Rights
recent human rights codifications implemented that right so that it is now not unwritten anymore but part of the codified corpus of human rights. Consider, for example, Article 8 of the EU Charter of Fundamental Rights. Another example as recent as 2014 is the “Right to be forgotten,” as developed by the Court of the European Union in the case “Google Spain SL.” 4. The fourth reason behind the relevance of knowledge about the foundation of human rights relates to the risks that are connected with the possibility of discovering new human rights. Due to this possibility, it is not surprising that we are often confronted with the claim of alleged human rights that are not actual human rights (e.g., a right to smoke, a right to consume drugs, a right to a collective identity, a right to posthumous dignity, etc.). It is a usual strategy in political propaganda to claim the existence of a human right to push and enforce a certain partial, individual, or collective interest. We can see very often that particular political and social interests are called human rights so as to give them higher weight and immunize the same against criticism. A closer analysis, however, shows that many of these interests in fact have nothing to do with human rights. In order to be able to distinguish between genuine human rights and merely purported human rights, we must have a very clear concept of human rights. We must know the defining elements of that very concept and check whether these elements are met in a particular case. The defining elements of human rights are exactly those which deliver the foundation of human rights. And this is precisely the fourth reason why we should have some knowledge about the philosophical foundation of human rights. ? Do You Still Remember? 1. Briefly explain what is meant by the Hermeneutic Circle. 2. There are two different types of philosophy. Briefly describe the two. 3. What is meant by a right? 4. On the basis of the preamble and Article 1 of the UDHR it is possible to characterize human rights by six characteristics. Identify these characteristics and briefly explain them.
For the answers, see Chap. 7 21.
21 Reading Recommendations
Reading Recommendations Alexander, Larry / Moore, Michael: Deontological Ethics. In Stanford Encyclopedia of Philosophy, 2012 – http://plato.stanford.edu/ entries/ethics-deontological/ Beaney, Michael: Analytic Philosophy. A Very Short Introduction. Oxford 2017 Clapham, Andrew: Human Rights. A Very Short Introduction. second ed. Oxford 2015 Cruft, Rowan / Liao, S. Matthew / Renzo, Massimo: The Philosophical Foundations of Human Rights. An Overview. In: Cruft/Liao/Renzo (eds.): Philosophical foundations of Human Rights. Oxford 2015, pp. 1–41 Ernst, Gerhard / Heilinger, Jan-Christoph (eds.): The Philosophy of Human Rights. Contemporary Controversies. Berlin 2012 Foot, Philippa: The Problem of Abortion and the Doctrine of the Double Effect. Virtues and Vices: Oxford 1978 Greimann, Dirk: Regeln für das korrekte Explizieren von Begriffen. Zeitschrift für philosophische Forschung 61 (2007), 3 Hohfeld, Wesley Newcomb: Fundamental Legal Conceptions as Applied in Judicial Reasoning and other Legal Essays. New Haven. Yale University Press 1920. https://archive.org/details/fundamentallegal00hohfuoft Leiter, Brian: Naturalism in Legal Philosophy. In Stanford Encyclopedia of Philosophy, 2012. http://plato.stanford.edu/entries/lawphil- naturalism/ Menke, Christoph: Subjektive Rechte. Zur Form der Differenz In MenschenRechtsMagazin 13 (2008), 197 Papineau, David: Naturalism. In Stanford Encyclopedia of Philosophy, 2015. http://plato.stanford.edu/entries/naturalism/ Preston, Aaron: Analytic Philosophy In: Internet Encyclopedia of Philosophy, http://www.iep.utm.edu/analytic/ Raz, Joseph: Human Rights without Foundation. In: Samantha Besson/John Tasioulas (ed.): The Philosophy of International Law, Oxford 2010 Schaber, Peter: Human rights without foundations? In: Gerhard Ernst & Jan-Christoph Heininger (eds.), The Philosophy of Human Rights. Contemporary Controversies. Berlin/Boston 2012 Tasioulas, John: On the Foundations of Human Rights. In: Cruft/Liao/ Renzo (eds.): Philosophical foundations of Human Rights. Oxford 2015, pp. 45–70 Wenar, Leif: Rights. In: Stanford Encyclopedia of Philosophy, 2015. http://plato.stanford.edu/entries/rights/ Waldron, Jeremy: Human Rights: A Critique of the Raz/Rawls Approach. In: NYU School of Law, Public Law Research Paper, June (2013)
Case Law ECtHR, jud. of 25/04/1978–5856/72 –, “Tyrer v UK” n.d., http:// hudoc.echr.coe.int/ BVerfG, jud. of 15/12/1983–1 BvR 209, 269, 362, 420, 440, 484/83 -, “Informationelle Selbstbestimmung”, BVerfGE 65, 1. n.d. CJEU jud. of 13/05/2014 – C-131/12 –, “Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González,” n.d. http://eur-lex.europa.eu/collection/eu-law/eu-case- law.html
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The Utilitarian Approach – 27
2.2
The Aristotelian Approach – 31
2.3
equirements for an Adequate R Theory of Foundation – 40 Reading Recommendations – 42
© Springer Nature Switzerland AG 2023 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-031-32292-1_2
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Chapter 2 · Utilitarian and Aristotelian Approach
Foundation of Human Rights: The Appropriate Moral Theory
2
In order to set up a sufficient philosophical foundation of human rights as moral rights, it is first necessary to choose the appropriate understanding of morality. So, we must determine whether there is at least one among the classical theories of morality that could serve this purpose.
Moral Theories: Hedonism The moral theory of Hedonism was developed in ancient Greece. A famous representative of this approach is Epicurus of Athens (351–270 BC). According to this theory, human beings are morally obliged to follow the rules to maximize their individual, sustainable happiness. Hedonists have no obligations toward others, only to themselves. Thus, there are no moral rights toward others because there are no duties owed toward others.
Moral Theories: Utilitarianism The moral theory of Utilitarianism was developed in the nineteenth century by Jeremy Bentham (1748–1832) and John Stuart Mill (1806–1873). According to this theory, human beings are morally obliged to achieve the “greatest happiness for the greatest number” of all living entities who can experience pleasure and sadness and are able to suffer—the theory thus takes into account not just human beings, but also animals. The happiness or suffering of individuals or a minority can be offset against the happiness or suffering of a majority. Therefore, this theory is not appropriate to justify subjective rights.
25 Utilitarian and Aristotelian Approach
Moral Theories: Aristotelianism In this lecture, Aristotelianism stands for a pattern of moral theories that are based on a certain understanding of “the nature,” deriving moral obligations and rights from this factual source. Aristotle identified this source with the polis and considered the human individual a “political entity” (i.e., one whose meaning of life is to serve the community). The philosophers of the Stoa referred to the nature of the cosmos—the natural world order—as the source of moral duties. The Islamic philosopher Ibn Rushd (1126–1198) tried to bring this approach in accordance with the Islamic religion. His influence led the Christian philosopher and theologian Thomas Aquinas (1225–1274) to the opinion that the will of God as the creator of nature is the last source of morality. Martha Nussbaum (1947–) pursues an anthropological approach by deriving the rules of morality from the capabilities of a human person. All these variants of the Aristotelian approach suffer either from the naturalistic fallacy or from an infinite regress. The Aristotelian approach is mostly connected with a teleological view. The world as a whole or all living entities or particular human beings are considered as having an inherent aim that they must follow—that is, humans live in accordance with the meaning of life.
Naturalistic Fallacy The term Naturalistic Fallacy refers to the false logical conclusion from a fact (“Is”) to a norm (“Ought”). Originally, the term was coined by the English philosopher George Edward Moore (1883–1958), who used this term in order to describe the mistake which occurs when “the good” is not understood as a property of its own (like “yellow”) but something that refers to natural facts (e.g., health, wellbeing). The logical mistake itself was discovered by the English philosopher David Hume (1711–1776)—“Hume’s Law”.
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Chapter 2 · Utilitarian and Aristotelian Approach
Infinite Regress of Justification
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The idea that the will of God in his capacity as legislator can serve as the ultimate ground for the justification of moral rules avoids the naturalistic fallacy. Nevertheless, this notion cannot reconcile the fact that there is no reason to cut the chain of justification when it comes to God. Rather, there is a philosophical need to justify the position of God as legislator. It is necessary to show that God’s legislation—like any legislation—must be based on legitimacy. The possible legitimacy can only follow from the fact that God was endowed with the capacity of legislation by some higher ranked authority. But the legitimacy of this higher ranked authority must come from another still higher authority. This leads to an infinite regress.
Methodological Individualism The justification of moral rules requires the position of Methodological Individualism. The ultimate authority toward whom arguments of justification must be addressed can only be an entity that is endowed with reason and conscience. Reason refers to the ability to assimilate or to digest rational arguments. Conscience refers to the ability to establish a structure of meaning in life in order to set up a system of standards of orientation for rational operations. Because only individual human persons are endowed with reason and conscience, any kind of justification must be addressed toward human individual persons. A moral norm is only justified toward an individual person when this person accepts it by using her capacity of reason and conscience. Moral norms that are not covered by a person’s will are invalid for that person.
Normative Individualism As the justification of a norm order depends on the individual ability of reason and conscience, it is unthinkable that human individuals accept a norm order which does not protect their reason and conscience, or which is based on disrespect and disregard toward the individual competence of reason and conscience.
27 2.1 · The Utilitarian Approach
2.1
The Utilitarian Approach
We are looking for a foundation of human rights by philosophical means. In other words: we try to find ground on which we can erect the building of human rights. But where should we start? As we have seen in the first lesson, codified human rights are based on the idea of super-positive moral human rights. Moral human rights are rights which are based on morality. In order to find a reliable ground for human rights it is therefore a good idea to study the theory of morality. Unfortunately, there is not only one such theory. In fact, the philosophy of ethics has developed several types of moral philosophy, requiring us to choose the one which is sufficient for our purpose. In this lesson, I want to deal with two kinds of moral theory. The first one is called Utilitarianism. The other one can be called Aristotelianism or Natural Law Approach. Let’s start with Utilitarianism. It is appropriate to start with this theory because it is the prevailing moral theory in English speaking countries, particularly the USA. Interestingly, the level of discussion about the foundation of human rights in the USA is rather poor. In particular, the idea that human rights should—from a legal point of view—consider super-positive rights is not a prevailing one. I assume that this has a lot to do with the prevailing moral theory. Utilitarianism is a concept that was developed in the nineteenth century by the English philosophers Jeremy Bentham (1748–1832) and John Stuart Mill (1806–1873). There is, however, a very old predecessor of Utilitarianism. This was the so-called Hedonism, which was represented by some famous philosophers in ancient Greece, among them Epicurus of Athens. The Hedonists share the opinion that human beings are morally obliged to only follow the rules that bring them the maximum level of individual, sustainable happiness. While the Hedonists think from the standpoint of the particular person who is considering what she should do, the Utilitarians consider the problem from a super-personal point of view. They do not focus on the happiness of particular persons, but rather the total amount of happiness in the world. Maximizing happiness from each individual’s perspective is not the relevant issue. What is
Starting Point?
Hedonism
Utilitarianism
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Trolley Problem
relevant is the maximization of happiness of the whole society or, in the case of thinkers like Peter Singer, of the entireness of all living entities that can experience pleasure and sadness or suffering. The slogan is “greatest happiness for the greatest number.” It is obvious that the Hedonist approach is an inadequate foundation for human rights. Hedonists only have obligations toward themselves. They have no obligations toward others. It is possible that a Hedonist may also respect the interest of others. But the only reason for this is that the happiness of the other makes himself happy. This might be the case when he loves the other or if the other is motivated to support the happiness of the Hedonist. If the other is of no interest to the Hedonist, then there is also no obligation to respect the other’s interests. Human rights refer to mutual obligations that largely depend on the fact that the other is a human being. That is to say, such obligations are complementary and do not depend on the retroactive effect of the fulfilment or non- fulfilment to the obliged person. Even the Utilitarian approach is not an inadequate foundation for human rights. Indeed, the Utilitarian recognizes having obligations toward others, but these obligations do not relate to a right within the others. The benefits that someone receives from another who wants to fulfil a moral obligation are only an incidental side-effect of the interaction. The recipient of such an exchange is not recognized as an individual that holds rights or that has the moral power to issue commands. Fulfilling any obligation in such a paradigm is only intended to enlarge the total amount of happiness in the world and not the happiness of any particular individual. The inadequacy of the Utilitarian approach for the foundation of human rights becomes clearer through the “Trolley Problem.” (see . Fig. 2.1). The “Trolley Problem” is a thought experiment made famous by the description of the British philosopher Philippa Foot. In short, it tells the following story: A tram is out of control and threatens to overrun five people. By changing a switch, the tram can be redirected to another track. Unfortunately, there is another person there. The question is now: Is the death of that person acceptable in order to save the lives of five people? The Utilitarian answers: yes, because a world with five survivors is a better world than a world with only one survivor. This result is sensible only under the assumption that there is no such thing like subjective rights.
29 2.1 · The Utilitarian Approach
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. Fig. 2.1 The trolley problem. (© Sophie Reinisch)
. Fig. 2.2 The hospital case. (© Sophie Reinisch)
Nevertheless, it is interesting to see that even Utilitarians are no longer sure of the answer if we slightly modify the thought experiment. Consider the following case (see . Fig. 2.2): There are four individuals. One of them suffers from lung cancer. He will die unless he undergoes a lung transplant. The second one suffers from stomach cancer. He will die unless he undergoes a stomach transplant. The third person suffers from a chronic kidney
The Hospital Problem
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disease. He too will die unless he undergoes a kidney transplant. The fourth person is healthy. The moral question is whether there is an obligation to respect the life of the healthy person by accepting that the three others will die? Or, alternatively, is there an obligation to rescue the life of the three by killing the healthy person and transplanting his healthy organs to the ill persons? According to the Utilitarian approach, the answer depends on what is determined to be the relevant extra-moral value. Let us assume that this relevant value is the maximization of pleasure. Should the three ill persons die, they will have no more pleasure. Refraining from doing anything would lead to the result that three “portions of pleasure” will be destroyed while one “portion” will be rescued. Comparatively, if the healthy person is killed, then this person will not enjoy pleasure anymore. In this case, one “portion of pleasure” will be destroyed while the other three “portions” will be rescued. Therefore, the principle of maximization of pleasure leads to the moral obligation to dictate the killing of the healthy person and transplanting their organs to the three ill persons. The result of the Hospital Problem is contrary to the moral intuitions of most people. There, the healthy person must be killed directly as compared to the Trolley Problem where the death of the individual is “only” brought about by the changing of a switch—an indirect killing. The Hospital Problem thus urges Utilitarians to find a more satisfying solution that is consistent with moral intuitions. Accordingly, John Stuart Mill takes rights seriously in his book Utilitarianism. He accepts that society should protect certain interests of the individual, which presumes that society should recognize subjective rights. But according to Mill, it is only common usefulness which delivers the reason for recognizing subjective rights. In other words, rights are derived from their common usefulness to society or their capacity to create happiness in society. The advantage for those who enjoy rights is thus only a side effect. The right bearers are not the focus of the rationale for having rights. This shows that the Utilitarian approach is not able to appreciate the status of any single individual person as a bearer of absolute human rights. The benefit to society or the majority, or any other abstract concept beyond the single person, is the relevant benchmark for good and evil and not the human person.
31 2.2 · The Aristotelian Approach
To me, these short remarks seem to be enough to show that neither the Hedonist nor the Utilitarian approach can, in any case, deliver an adequate, comprehensive foundation for human rights. Nevertheless, for the contemporary discussion of human rights, it is very important to note the huge influence of the Utilitarian approach. This is confirmed by a very special thought experiment. The German play writer Ferdinand von Schirach wrote the theatre play “Terror,” which was performed in many places around the world. The story is as follows: There is a trial against the military pilot Lars Koch, who is accused of murder. A terrorist had hijacked a passenger plane headed from Berlin to Munich with 164 people aboard. As the plane got within 15 km of its probably intended target, a football stadium filled with 70,000 people, Major Koch decided to shoot the plane down with an air-to-air missile to save the lives of the people in the stadium. The passengers aboard the plane are all killed. The theatre audience is then asked whether the pilot should be sentenced for his actions. There is a website that reports the answers given by audiences from all over the world (7 http://terror. theater/). The reports show that an average of 63% of audiences vote “not guilty.” When the film “Terror” was broadcasted on German television in 2016, the result of the same inquiry was an average of 87% of audiences voting “not guilty”. This result indicates that moral feeling all over the world is seemingly steered by Utilitarian ideas. They think of the numbers of victims and not of the passengers’ human right to live. But it is certainly not the case that these people undervalue human rights. The more likely explanation is that they have a very vague concept of human rights.
2.2
The Aristotelian Approach
The label “Aristotelian approach” stands here for a great multitude of different moral theories, which have, however, important characteristics in common. Aristotle (385– 323 BC) is the famous ancient Greek philosopher who gave theories of this kind a very sophisticated shape. His philosophy thus had a huge influence on other similar approaches. However, the moral theories influenced by Aristotle are only examples of a pattern that can be found in all cultures of the world. Therefore, I use the term
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2
“Political Entities”
Public Opinion
Teleology
Aristotelian approach or Aristotelianism to refer to this very pattern. At first glance, the Aristotelian approach seems a good candidate for a foundation of human rights. His approach accepts obligations toward each other and it is compatible with the idea of mutual rights, although subjective rights are recognized neither in Aristotle’s work nor in any other classical variant of this approach. Above all, the Aristotelian approach seems to be adequate because of its universal commonness. The Aristotelian approach is characterized by the following features: 1. Human individuals are considered “political entities.” The idea that human beings are political entities means that human individuals are not subjects for themselves. They are not “ends in itself ” (Kant). Rather, they are only elements and parts of a political community. As citizens, they have to work for the common good. Only as private men (Greek: idiotes) can they pursue their own private interests. The private sphere is the family and the household. It is organized in a patriarchal manner: the father is the owner of the household and family. Spouses, children, and servants are like the animals, the house, and the ground—all of which are the property of the father. The public sphere is the sphere of politics. In this sphere, men are equal citizens. So, the meaning of life for spouses, children, servants, and animals is to serve the house (oikos) and the father in the private sphere while the meaning of life of the father is to serve the community in the public sphere as an equal among equals. 2. The second element of the classical Aristotelian approach is the responsibility toward the public opinion and not toward individual reason and conscience. The standard of morality is the public opinion. This includes standards of political or judicial action. Here, the majority decides what is right and wrong. The opinion of the single individual is only relevant in the process of forming opinions. But when the people (demos) have voted, not only is the majority opinion the strongest, it is considered the only true opinion. This is why rational opposition against the majority is unthinkable. 3. The third element is the teleological view of the world (cosmos). Aristotelianism is based on teleological metaphysics. According to this idea, every element of nature including humans, society, and culture, has a certain aim (telos) that is inscribed in it by nature. In the same
33 2.2 · The Aristotelian Approach
way as it is the natural aim of an apple tree to produce apples, it is the natural aim of humans to serve the community and to live in accordance to certain moral standards. 4. The teleological approach led to the idea of the natural law of morals. According to this idea, it is not only a fact that apple trees produce apples, but it is their duty to produce apples. A tree that does not produce apples is therefore bad not only in a functional sense but in a moral sense. The idea of the natural law of morals was first developed by the Greek philosophy of the Stoa. Islamic and Christian philosophers and theologians took over this idea. It was first the Andalusian Islamic philosopher Ibn Rushd, also known as Averoes in the West, who systematically explored the work of Aristotle, translating it into Arabic and establishing an Islamic philosophy on the basis of the Aristotelian ideas. The influence of Ibn Rushd for the Islamic world was, however, very small. His Rationalism clashed against the religious thinking of mainstream Islam outside of Europe. He was considered a heretic. The collapse of the Andalusian Caliphate in 1031 and the final surrender of the Emirate of Cordoba in 1492 finished his influence in the Islamic world. Nevertheless, his influence in the Western world was groundbreaking. He brought the knowledge of the work of Aristotle to the West and it was in particular Thomas Aquinas who established the philosophy of Aristotle as the basis of Western theological thinking. Ibn Rushd’s Rationalism developed further into the beginning of scientific thinking in Western Europe. The main change in the Aristotelian approach that the Islamic and Christian philosophers made related to the ideas of the source of natural moral law. According to the Stoa, natural moral law was considered similar to how the contemporary man understands laws of nature as within the meaning of physics and other empirical sciences. Nevertheless, the modern distinction between the laws of nature and moral laws was only possible through the distinction that philosophers and theologians have made in the Middle Ages. For them, the source of moral laws was no longer the nature as such but rather the personal will of God. God was considered a personal entity that issues commandments which human beings were obliged to follow. The theologian modification of the Aristotelian approach led to some changes in the conception of the
Natural Law
Islam Christendom
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The Will of God
Divine Law
relationship of individual and society. But the structure remained the same. 1. Human individuals were considered “subjects of God.” The society was considered a cooperation that had to serve God. The idea remained that human individuals were considered only elements and parts of a political community. But the structure of the society (Islamic: Ummah) was no longer considered as a natural structure, but one based on divine rule. 2. Furthermore, the theological approach differs from the classical Aristotelian approach by the reference to the authority toward whom there is a moral responsibility. The driver is no longer the public opinion but the will of God—that is, the moral rules issued by God. The class of priests and similar religious agents have the capacity and power to interpret the divine rules. Democracy is replaced by a hierarchical structure. On the top is a king whose legitimacy is derived from the will of God. The individual is only a subject of his power. The decision of the king, when it is in accordance with the opinion of the religious leaders, is not only the most powerful one. It is the only true one. 3. The theologian approach can also be interpreted as a teleological approach. Nevertheless, is it not one’s nature which defines the aims of life, but God. Every individual, however, has a certain aim or telos that is inscribed in it. It remains the aim of humans to serve the community and to live in accordance to certain divine moral standards. 4. The idea of natural law is converted into the idea of divine law. But the content is more or less the same. It is crucial to note that in this structure the individual only has a serving position and role. It does not possess rights. It is further necessary to mention that the theological approach in the Islamic world led to very similar results despite ignoring the Aristotelian heritage. The reason for this is easy to understand. Aristotle did not develop a new conception of the relationship between society and the individual. He only interpreted the given social structure of his culture in a philosophical manner. He gripped the world which he encountered with words. The structure and manner of thinking that he had about the world, however, is a variation of a pattern that you can find in every traditional society around the world.
35 2.2 · The Aristotelian Approach
The Aristotelian approach is still alive. Nowadays, it is very often expressed with vocabulary that was not common in ancient Greece or in the Middle Ages or in any traditional society. Still, this modern vocabulary is used to express very old ideas. You can find papers and books defending the Aristotelian approach by using phrases like “human rights” or “human dignity.” Human rights or human dignity in this sense partly refer to a certain kind of freedom and partly to a certain kind of duties. Freedom is meant as freedom from any obstacles which could hinder the pursuit of the natural aims of a human being. It is the freedom to meet your duties and nothing else. For example, because it is the natural aim of a woman to give birth to children, or the divine will that she does so, women have the human right to not be hindered from marrying and begetting children. On the other side, if a woman decides not to marry and/or beget children (or not to get more children), then she pursues aims that are contrary to the law of nature or to the will of God. Therefore, she not only has no human right to act as she has decided to do, but according to the natural or the divine law, she is obliged to abandon pursuing her own plans. Consequently, it is permitted to force her to marry or to beget (more) children, etc. This Aristotelian concept of human rights is thus more accurately characterized as a concept of human duties. Put differently, every human has certain rights but they will forfeit these rights if they act contrary to their natural aims. An example for this modern variant of the Aristotelian Approach is Miklós Maróth’s paper about “Human Dignity in the Islamic World.” According to Maróth, the elevated position of humans, as compared to that of the angels, is based on free will. God has endowed humans with free will and “in turn”, he charged them with duties. If a man obeys Allah’s commandments, he will be dignified and receive benefits, otherwise he will be punished. Maróth concedes that the word “human dignity” was not known in the times when Islam was founded and the Quran was written. Nevertheless, he uses this expression in order to explain very old religious ideas with modern words. A Christian variation of this approach is portrayed in the book Persons. The Difference between “Someone” and “Something” by Robert Spaemann. Spaemann recognizes that the essential characteristic of persons is to be able to decide between Good and Evil. They are also able to rec-
2
Aristotelianism Today
Example 1
Example 2
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ognize what is the Good. But they have in themselves no reason to act according to the Good. He writes:
»» That everything is permissible if God does not exist … is
2
true even if the content of morality is accessible independently of any religious conviction. What remains incomprehensible without such a conviction is why we should do what we have recognized as the best for all, if important interests of our own are opposed to it. Indeed, what does it mean at all that we ought to do anything. Having insight in values does not compel people to submit to them. (p. 105, German edition).
Example 3
Be/Ought Confusion
Another example of the Aristotelian approach is the socalled Capability Approach of the American philosopher Martha Nussbaum. She starts neither from the traditional morality of a given society nor from the will of God, but from an intuitive anthropological approach that concerns itself with the basic capabilities that are crucial for being a human being. One of these basic capabilities is, for example, the awareness of corporeality. From this capability follows the capability to eat or fast. Human beings are therefore endowed with the right to choose between eating and fasting. It is a violation of their rights if they are deprived from this choice—as is the case of starving. Here we again find a teleological thinking. Nussbaum concludes from the natural capability of eating or omitting to eat a right to food and a right to fast according to one’s own free will. Regardless of which variant of the Aristotelian approach we consider, none of them are convincing when it comes to identifying an adequate philosophical basis for human rights. This can be shown by a deeper analysis. The most relevant counter-argument against every conception of natural law is the fact that they confuse the meaning of “be” and “ought”. The assumption that everything in nature has an inherent aim does not imply that something or someone has the duty to follow its aim. A natural tendency is a simple fact, something that we describe with the word “be.” The natural tendency for apples to emerge from apple trees is only a fact in this sense. This does not entail that apple trees have an obligation to produce apples. In contrast, the word “ought” is used not when talking about natural tendencies but about free decisions between alternatives. Duties, obligations, or statements with “ought” can only play a role where we have to face behav-
37 2.2 · The Aristotelian Approach
ior based on the ability to not only follow natural tendencies, but also to refuse to follow such tendencies and act contrary to them. Where such abilities are exercised, we talk about free will. Free will is based on the consideration of arguments and on a process of balancing of alternatives. This is a completely different procedure than following natural tendencies. When we want to allege certain duties, we have to point to arguments in favor of such duties while at the same time indicating that the counter- arguments are less convincing. Natural-Law-theories are always based on a conclusion from facts to norms, from descriptions to prescriptions. Nevertheless, conclusions of that kind are logically flawed. Inherent aims within the meaning of Aristotle, or capabilities within the meaning of Martha Nussbaum, are only facts. Aristotle as well as Nussbaum move from facts to norms, but such a conclusion is logically flawed. The gap between “is” and “ought” and the logical Hume’s Law impossibility of finding a norm from a fact was first addressed by the English philosopher David Hume (1711– 1776). It is called Hume’s Law. Very often, it is also called a naturalistic fallacy. This notion was coined by the British philosopher George Edward Moore (1873–1958), but it had a slightly different meaning originally. (He meant that the word “good” refers to an independent property of things and cannot be translated with words for other properties such as healthy, brave, rich etc.) The theological modification of the natural law conception into a legality conception recognizes this counter- argument. It replaces natural facts through a divine rule. The divine rule is a norm and from this norm follows what we ought to do. Norms follow norms. God is considered a legislator and human beings are considered the subjects of the divine law who are bound to it. The binding tie between a rule and a person is what we call an obligation or duty. So, at a first glance, we can see that the theological approach seems to avoid the naturalistic fallacy. But let us have a deeper view. What is the element that leads to the binding effect of the divine law? The answer of the Qur’an, for example, includes a reference to punishment by God. Nevertheless, punishment is only a matter of facts. We have to once again ask how it should be possible to conclude the existence of an obligation from a crude fact. It is important to see that the threat of punishment is never an argument in favor of duties. Otherwise, we would
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2
Meaning of Life
be obliged to give our wallet to a robber when he threatens us with a knife. If we were to think that we are obliged to give our wallets to the robber only because he forces us to do so, we would inadvertently recognize that the robber has a right to get our wallets. In other words, we would consider crude violence as the source of rights. This is obviously nonsense. Therefore, force can never give rise to duties and obligations. From this insight follows that we can never be obliged to follow the commandments of God simply because God threatens us with punishment. It might be strategically smart to follow the commandments of God in order to avoid punishment. Nevertheless, this would be analogous to the case where we decide to follow the demands of a robber in order to avoid severe harm. Accordingly, duties and obligations, or rules in general, do not find a valid basis in natural tendencies or divine penalty or any other kind of violence. So, we need alternative reasons to underlie the validity of norms. There is a more sophisticated argument in favor of the possibility of deriving norms from natural tendencies. This is the argument of the meaning of life which follows from the teleological view of nature. Importantly, meaning of life is to be distinguished from meaning in life. Meaning in life refers to the aims and targets that we choose on the basis of our own free will. If you have decided to become a lawyer, you will read certain books, visit certain lectures, meet certain people, pass certain exams, etc. All these activities are directed to one aim, namely the aim of becoming a lawyer. Becoming a lawyer is one of your possible meanings in life. The concept of meaning of life means something different. It means that your entire life, your existence as a whole, serves a certain purpose beyond your life. If such a meaning of life exists, it would be prudent to orientate your life in that direction. But, can such a meaning beyond your life exist? According to Aristotle, citizens must serve the benefit of the community. Aristotle considers the benefit of the community to be an aim beyond the life of the individual citizen. But beware: Aristotle does not argue that we should serve the benefit of the community because benefitting the community is in fact tantamount to benefitting its members. In other words, Aristotle did not believe that we serve our own benefit when we serve the benefit of the community. Instead, he thought that the ultimate aim is
39 2.2 · The Aristotelian Approach
the benefit of the community and not the benefits of its members. The benefits of its members were considered only contingent side-effects rather than the meaning of serving the benefit of the community. This is why citizens can be obliged to sacrifice their lives for the benefit of the community. Nevertheless, we have to realize that from the view of the citizen it makes no sense to serve the benefit of the community if the community as such does not have a meaning for itself. There must be a meaning and purpose beyond the benefit of the community. If the existence of the community does not have some further meaning, then, of course, serving the community is also meaningless. But what could be the meaning of life of the community? Aristotle and the philosophers of the Stoa would answer that the meaning of life of a community is to follow the cosmological order. On this step the same question occurs: Serving the cosmological order only makes sense if there is a meaning beyond the cosmological order, which the cosmological order then serves. The ancient Greek philosophers didn’t ask this question and therefore their entire approach shows severe deficiencies. The theologians of the Middle Ages—both Islamic and Christian—delivered an answer to the question posed above. The meaning of the entire cosmological order or, in other words, the meaning of creation, is the satisfaction of God. Nature serves the benefit of God. The community serves the benefit of nature. The citizen serves the benefit of the community. The first link in the chain is connected with the last link in the chain. By serving the benefit of the community, the citizen ultimately serves the benefit of God. Accordingly, there is a meaning of life for every individual. Nevertheless, this conclusion is short-circuited. The benefit of God ensures a meaning of life for human individuals only if there is a meaning beyond the benefit of God. So, we have to ask whether there is a purpose of life for God. Thus, it is now evident that this structure of argumentation cannot lead to a final result, it only leads to an infinite regress. This shows that the concept of the meaning of life is based on a confusion of thought. There is no meaning of life. If we give up the idea of meaning of life, we give up the idea of a teleological view of nature at the same time.
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If we refuse the idea of a teleological view of nature, we have at the same time lost the basis of the idea of the human being as a political entity and the idea of responsibility toward the public opinion. There is nothing beyond individual reason and conscience that could provide a basis for the political order and justice and moral or legal compulsoriness among human beings. Please, be aware of the character of my argumentation against the Aristotelian approach and its theological modifications. I do not argue from an empirical point of view. I do not opine that natural law does not exist or that God does not exist or that God does not issue laws, etc. In other words, I do not criticize religious or metaphysical beliefs from an external point of view. I do not confront religious belief with an atheistic belief, etc. My argumentation is only based on logic. It is an internal criticism against some conclusions of metaphysical or religious beliefs which are contrary to logic. Having identified these logical inconsistencies, however, does not exclude that there is an acceptable basis for religious or metaphysical beliefs in general.
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2.3
Methodological Individualism
Requirements for an Adequate Theory of Foundation
From the criticism against the Hedonist, Utilitarian, and Aristotelian approaches, we can learn something about the requirements that an adequate theory of foundation of human rights must have. There are two fundamental requirements: 1. Methodological Individualism. Any argumentation in favor of the philosophical foundation of human rights must always be addressed to an entity that is considered the source of justification. When identifying this source, it is necessary to avoid both the naturalistic fallacy and an infinite regress. Nevertheless, the entity of justification must provide a last reference i.e., a final and stable ground. This entity must be able to assimilate or digest rational arguments. In other words, the entity of justification must be endowed with rationality or reason. Rational arguments are always aligned with a final purpose. These final purposes are what we can call the meaning in life. They are the standards of orientation for rational operations. The entity of justification must
41 2.3 · Requirements for an Adequate Theory of Foundation
therefore be endowed with the ability to establish a structure of meaning in life in order to set up a system of standards of orientation for rational operations. This ability is called conscience. In other words, entities of justification must be endowed with conscience as well. The only entity in the world that is endowed with reason and conscience is the individual human person. From this follows that every kind of ascription or justification of obligations must be acceptable for every single human individual to whom the obligation should be ascribed. Every individual person can only approve arguments for themself. It is not possible to only select some individuals as representatives for the entirety of mankind. Rather, it is inevitable that every single human individual approves the norm order vis-à-vis their own reason and their own conscience, or at least they could approve them if they took a stand on it. Therefore, it is never enough to show that the norm order serves the benefit of the community or the benefit of God or the greatest happiness of the greatest number. Instead, it is necessary to show that every single person has good reasons to accept the norm in question because the norm is useful for her in order to pursue her own meaning in life. 2. From Methodological Individualism follows what we call Normative Individualism. Recognizing that justifying a norm order depends on the individual ability of reason and conscience, it is unthinkable that human individuals accept a norm order which does not protect their reason and conscience or does not recognize or otherwise disregards the individual’s competences of reason and conscience. Regardless of the norm order that is ultimately accepted by prospective individuals, one set of normative elements must always be present, namely basic norms that protect the individual’s reason and conscience. Norms of that kind are called human rights. Human rights are nothing else than the totality of all conditions that must be met in order to ensure the conditions of reason and conscience. Human rights must protect the core of the human individual as the last and highest reference point of every legal order.
Normative Individualism
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? Do you Still Remember?
2
1. Why is the Utilitarian approach not compatible with the idea of subjective rights? 2. What is meant by Naturalistic Fallacy? 3. What is the crucial argument against an ethical theory based on teleological metaphysics? 4. What is meant by Methodological / Normative Individualism?
For the answers, see Chap. 7 21.
Reading Recommendations Mohammed Abed Al-Jabri, Arabic Islamic Philosophy. A Contemporary Critique. Austin: University of Texas Press 1999. Anscombe, Gertrude Elisabeth Margarete: Modern Philosophy. In: Philosophy 33 (1958), 1–19. https://www.pitt.edu/~mthompso/ readings/mmp.pdf Feldman, Fred: Utilitarianism, Hedonism, and Desert: Essays in Moral Philosophy. Cambridge (UK) 1997. Frankena, W. K.: The Naturalistic Fallacy, in: Mind. XLVIII (1939) 464–77. Maróth, Miklós: Human Dignity in the Islamic World. In: Markus Düwell et al: The Cambridge Handbook of Human Dignity, Cambridge (UK) 2014. Mill, John Stuart: Utilitarism, 4th ed. 1871, Google Books. Nathanson, Stephen: Act and Rule Utilitarism. In Internet Encyclopedia of Philosophy. http://www.iep.utm.edu/util-a-r/ Nussbaum, Martha: Creating Capabilities. The Human Development Approach. Cambridge (Mass) 2011. Singer, Peter: Practical Ethics. Cambridge (UK), 3rd edition, 2011. Spaemann, Robert: Persons. The Difference between ‘Someone’ and ‘Something’. Oxford 2007. Taurek, John: Should the Number Count? In: Philosophy & Public Affairs 6 (1977), 293.
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The Social Contract Approach Contents 3.1
he Theory of Social T Contract – 46
3.2
Thomas Hobbes – 47
3.3
John Locke – 49
3.4
Jean-Jacques Rousseau – 53
3.5
John Rawls – 57
3.6
hy Social Contract W Theories Cannot Serve as a Foundation for Human Rights – 60
3.7
New Approach After World A War II – 62 Reading Recommendations – 63
© Springer Nature Switzerland AG 2023 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-031-32292-1_3
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Chapter 3 · The Social Contract Approach
Social Contract Theories
3
Social contract theories always consist of three elements: (1) individualism, (2) contractual autonomy, and (3) a certain conception of a natural state (Rawls: original position). Individualism refers to the fact that only human individuals, as opposed to collectives, can be considered parties of the original social contract. Contractual autonomy refers to the ability of human individuals to give up individual freedom by binding themselves, by making promises, and by entering a contract. Natural state (original position) refers to the idea of a state of life before the social contract has been concluded. This situation explains why individuals are rationally motivated to enter a contract. The natural state is not a real historic state, but only a contra-factual story in the frame of a thought experiment. The different social-state-theories differ from each other in their respective descriptions of the natural state.
The Social Contract Theory of Thomas Hobbes (1588–1679) Hobbes describes the natural state in terms of human individuals devoid of any sense of sociality and emotional, moral, or legal ties to each other. They are lonesome, selfish agents who distrust each other and always fight each other. In such situations, human beings are driven by self-preservation to enter into social contracts. In such a contract, they mutually renounce the exercise of self-determination. Only the king is not part of the contract. Therefore, the king is the only one who is able to determine himself. This puts him in the position of sovereign ruler over all other individuals of a society, who in turn become his subjects. Recognizing that the judicial ties between the subjects only relates to the mutual renunciation of self-determination, there is then no subjective right of the subjects toward each other or toward the king. Therefore, the Hobbesian conception of the social contract does not provide any foundation or justification for human rights.
45 The Social Contract Approach
The Social Contract Theory of John Locke (1632–1704) According to Locke, human individuals in the natural state are already endowed with human rights. Human rights are considered part of their nature as created by God. The rights are vague and therefore a matter of interpretation. The fact that every individual has the right to interpret its own rights leads to partisan interpretations and misuse. Therefore, individuals have good reasons for establishing a public authority with a monopoly over the interpretation of rights and the power to protect or enforce them. The establishing of such an authority is the content of the social contract. The Lockesian approach allows two different interpretations. According to the first interpretation, human rights are considered part of the human nature. This approach is not an adequate justification for human rights because it is based on a naturalistic fallacy. According to the second interpretation, human rights are enacted by God, who is considered a legislator. This argumentation leads to an infinite regress because God as legislator needs legitimation.
The Social Contract Theory of Jean Jacques Rousseau (1712–1778) According to Rousseau, the natural state was a real era in history. It was characterized by very small groups of individuals who were closely connected through ties of love and affection. This “golden age” came to its end with the invention of agriculture and private property. The natural state thus became a state that was characterized by inequality and economical expropriation. Individuals enter into social contracts to avoid inequality through equal political participation. According to the contract, the state is ruled by the volonté générale, which consists of the unanimous vote of all members in society. In practice, however, the requirement of unanimity leads to the complete inability to act. Therefore, in practice, majority votes rule and the majority can oppress minorities.
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The Social Contract Theory (1921–2002)
of
John
Rawls
According to Rawls, the original position is characterized through a society whose members want to enter a social contract to establish rules for a fair distribution of the benefits and burdens of their cooperation. Human individuals share a conservative, careful attitude toward unpredictable risks (Maximin Principle). Individuals vote only for fair principles of distribution if they have to vote behind a veil of ignorance—i.e., under uncertainty about their own future position in society. Behind the veil of ignorance, people vote for the liberty principle, the difference principle, and the principle of equal access to privileged positions. The liberty principle refers to the maximum of liberty that is only restricted by the same amount of liberty that any other member of society enjoys. Rawls considers the content of liberty more or less identical to the catalogue of classic human rights. According to the difference principle, social and economic inequalities are acceptable if they bring greater benefits to the most disadvantaged members of a given society, placing them in a better position than under any other kind of distribution. The principle of equal access demands equal opportunity for every member of society to achieve privileged social and economic positions within society. The conception of John Rawls is an inadequate justification for human rights because it justifies rights only for the members of a particular society without providing reasons supporting a right to access that society. Rawls’ theory refers therefore only to civil rights and not to human rights.
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3.1
The Theory of Social Contract
As we have seen in the last lesson, the philosophical foundation for human rights can neither be based on the Utilitarian approach nor on the Aristotelian approach because both approaches—unlike the social contract approach—are not based on the two principles of Methodological Individualism and Normative Individualism. Therefore, we must investigate whether the social contract approach is an adequate candidate for the foundation of human rights.
47 3.2 · Thomas Hobbes
The social contract approach is strongly represented in Anglo-Saxon political philosophy. The idea rose in the beginning of the European Renaissance and was first formulated by the English philosopher Thomas Hobbes (1588–1679). Perhaps you know that some philosophers of the Middle Ages have already argued in favor of the idea of a social contract (Marsilius of Padua, Althusius). The idea of these philosophers was that the legitimization of royal power is based on a contract between the people and the king according to which there is a mutual relationship of trust and loyalty between the two. The people, as an original corporate entity, was considered one of the parties to the contract. This was an idea in the frame of the Aristotelian approach because individuals did not play any role in this conception. In the frame of the modern idea of the social contract, “the people” or the community is not considered an original agent. According to the principles of Normative Individualism, society is made up of individuals, and the individuals are the actual agents and parties of the contract. The community—we should prefer to speak of “society”—is only established through the social contract. Society is the result of the contract rather than simply one of the contracting parties.
3.2
Social Contract in Middle Ages
Thomas Hobbes
Thomas Hobbes was the first representative of the modern idea of the social contract. Although his conception of the social contract is very different from later conceptions, we can identify in Hobbes three elements which are typical for every theory of social contract. The first element is what we can call Individualism. Let us briefly go over what Individualism is. Individualism is the idea that the individual is no longer seen as merely a dependent part of the community, intended only to serve the purposes of the community. Instead, the individual is seen as self-centered, but possibly selfish entity that is interested only in maximizing its own goods. The value of the individual depends neither from its use for the community nor its use for its fellow individuals. Value depends only from the relation of the individual to itself. Individuals are not bound by nature or by God to a meaning or purpose beyond such meaning and instead freely choose their
Individualism
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Autonomy
Natural State
own purposes. There is no obligation for them by nature or by God. So, they can be bound to obligations only by self-binding, based on consent. The foundation of moral or juridical liability can, if at all, only be created by the individuals themselves. The second element of the theory of social contract is what we call Contractual Autonomy. Contractual autonomy refers to the ability to give up individual freedom by making a promise and entering into a contract. The third element of the social contract approach is the idea of what may be called Natural State. Theories of social contract always begin with the idea of a state of life before contract has been entered. This situation is traditionally called Natural State. John Rawls replaced this expression by the term Original Position. This term has the advantage of avoiding the misleading imagery of the former term. It makes clear that this element of the social contract theory does not refer to a historic state in the past, but to an element in a thought experiment. Accordingly, neither the Original Position nor the social contract should be considered real facts in history. It is, however, not clear whether Hobbes understood his own argumentation as a thought experiment or as a series of claims about certain historical events. But we should be aware that we are not talking about historical events, but about a philosophical thought experiment. The differences between the particular theories of social contract are differences in the descriptions of the natural state, i.e., the original position. According to Hobbes, the natural state is characterized through human individuals without any ability or sense for sociality (see . Fig. 3.1). They are not connected to each other by emotional, moral, or legal ties. They are lonesome, selfish agents who distrust each other and are always fighting for the scarce resources necessary for survival. The natural state endangers their interest in self- preservation and, therefore, the individuals want to end it. They want to bring themselves into a state of peace and security. In order to conclude the natural state, the individuals mutually renounce the exercise of self-determination. They take only one person out of this mutual renunciation, namely the king. The king is not a party to the contract and remains in the natural state. He can make determinations not just about himself but also all others because he is the only one who has not renounced his self-
49 3.3 · John Locke
. Fig. 3.1 Hobbes’ conception
determination. As a result, the king becomes the owner of sovereign rule. Sovereignty and legitimacy of state power is not based on law or morality, but rather solely on the subjects’ renunciation of self-determination and the will of the king to rule over all his subjects for the sake of his own interests. The only benefit of this kind of social contract is the absence of war where everyone fights against everyone. There is no moral or juridical relation between the subjects and the king; the only relations are between the subjects themselves. The judicial tie between the subjects only relates back to the mutual renunciation of self- determination. The subjects do not have a positive right toward each other or toward the king. So, the Hobbesian conception of social contract does not deliver any foundation or justification for human rights.
3.3
John Locke
Human rights come into view if we turn to the contract- theory of John Locke. Like in the theory of Thomas Hobbes, we find with Locke the three elements of every social contract theory: individualism, contractual autonomy, and a conception of the natural state. Nevertheless, the design of natural state is quite different. Like with Hobbes, the individuals are considered isolated beings without any social ties. But contrary to Hobbes, they are endowed with human rights. Human rights are particular entitlements that each individual has
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. Fig. 3.2 Locke’s conception
toward every other individual. The human rights are conferred by God and can be analyzed in three elements (see . Fig. 3.2): 1. They have a particular scope of protection: life, freedom, and property. Accordingly, there are three different human rights. The right to freedom is, however, subdivided into certain distinct freedoms. The most important one is the freedom of religion, another one is the freedom to free trade and business. 2. All human rights embrace the right to defend themselves—by means of violence, if necessary. Locke called these means of violence punishment. In other words, every bearer of a human right is authorized by God to punish those who violate or threaten to violate their rights. 3. Human rights are a subject of interpretation. They are not very clearly defined. For some situations, it is questionable whether they are even applicable. The bearer of the right, however, is endowed by God with the authority to give the authoritative interpretation.
Protection Scope
Right to Defense
Right to Interpretation
From the individual right to interpret one’s own human rights in situations in which the individual itself is involved follows that the individual’s interpretation of the right is influenced through partisan interests. Therefore, the individual interpretation is always at risk of being distorted and made false. False interpretation of human rights lead
51 3.3 · John Locke
to the risk that the right to punishment will be misused. The individual could defend a right that it does not actually hold. So, a significant high risk of unjustified violence is an essential element of the natural state. In order to avoid these risks, it is a reasonable option for the individuals to enter a social contract with the aim of establishing a state and transferring to this state the individual right to interpretation and the individual right to punishment. In doing so, the state becomes the central authority, endowed by the people (here: by every member of the society!) with the sole competence of jurisdiction over the interpretation of the rights of citizens and a monopoly over legal violence. The communization of interpretation and punishment further leads to a positive side-effect: the individual is not limited by its own weak forces, but can use the combined forces of society to protect its rights. So, the defense of everyone’s human rights is much more effective than is the case in the natural state. It is important to see that, according to Locke, the social contract is not the foundation of human rights. The foundation of human rights is the will of God, who has endowed his human creations with certain human rights. The only function of the social contract is to compensate some deficiencies of the divine gift in order to avoid injustice in the application of human rights. The Lockean conception was the paradigm of constitutional law in the United States of America. We can see that very clearly in Section 1 of the first American constitution, the Virginia Bill of Rights of 12 June 1776 (see . Fig. 3.3). In particular, the first section of this constitution deals with human rights while the other sections deal with the organization of state power. Only two other articles could be recognized as referring to human rights, namely freedom of the press under section 12 and freedom of religion under section 16.
. Fig. 3.3 Virginia bill of rights section 1
Constitutional Law
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God’s Legislation
In contrast to Locke, Section 1 of the Virginia Bill of Rights does not trace human rights back to the will of God, but to “nature.” Nevertheless, this is not really a contrast to Locke. The drafters of the Virginian constitution shared Locke’s view that “nature” is the creation of God. By nature therefore means that human rights are inherent in the same way that reason and conscience are inherent to human beings. Human rights are part of humans’ natural constitution in accordance with the master plan of God’s creation. Another important point to note is that section 1 stresses the fact that human rights cannot be deprived or divested by contract (=compact). They are not something that can be disposed of by humans because they are inalienable and irrevocable. It is also not possible to renounce them or otherwise deprive others of them. Both irrevocability and inalienability are unconditional. As long as human beings exist, they are endowed with human rights just as they are endowed with reason and conscience. Nevertheless, the consequences of that statement were not clear to the drafters of the Virginian constitution, nor are they clear to many contemporaries. So, there is still a lot of people who have not noticed that the attributes of irrevocability and inalienability are not compatible with, for example, the death penalty or the torture of terrorists and criminals. We will return to this aspect later. The Lockean approach again leads to the problem we have dealt with in the second lesson: human rights are norms and not facts. So, it is a kind of naturalistic fallacy to consider human rights natural attributes of human beings, like reason or conscience. Nevertheless, we can interpret Locke in a way that avoids this naturalistic fallacy. We can justify human rights not as the result of divine creation of facts, but as the result of a divine legislation. By doing so, we could say that God is a legislator who can enact laws. In this case, we analogize the relation between God and human rights to the relation between the national parliament and the national laws that are enacted by the parliament. Many critics argue against this construction on the grounds that it is based on a certain religious belief and that religious beliefs cannot be reasonably justified. Religious foundations of human rights would lead to the result that atheists or believers of other religions could not be convinced and motivated to respect human rights.
53 3.4 · Jean-Jacques Rousseau
I think the question of whether religion can be justified in a reasonable way is a very difficult and debatable question. Furthermore, I believe that religious justification of human rights is a matter of theology and not a matter of philosophy. This lecture is a philosophical one and not a theological one. Therefore, religious justification or foundation is not our business. Indeed, the question of religious truth is not really relevant for our purposes. We can avoid this question simply by acknowledging that even if we are willing to take as a fact that God exists and that God issues laws for humans, we nevertheless do not have a stable basis and foundation for human rights by referring to the legislation of God. If we accept that God issues laws and demands that we should obey them, then the question arises why the laws of God should be valid and binding. As we have seen in the last lesson, the threat of punishment cannot provide a basis for the validity of laws. The only way to justify the validity of divine laws is to show that God is endowed with the legal competence to issue laws for humans. Nevertheless, God’s position as legislator must also be justified. An adequate justification must consist in showing that the legal competence to issue laws is conferred to God by someone who has a higher rank than God insofar as she has the legal competence to confer on God the authority of issuing laws for humans. The question is not whether such a legislator of higher rank exists. The problem is rather that we are confronted with an infinite regress because every legislator of whatever high rank so may only justifiably issue laws and confer legal competences on another if there is a higher ranked agent who endows him with that very competence. This problem shows that the Lockean theory of social contract remains within the frame of the Aristotelian Approach and, therefore, is not really an appropriate alternative.
3.4
Jean-Jacques Rousseau
Now I want to continue to examine the different variations of social contract theories in order to find out their relevance for the foundation of human rights. I move to Jean-Jacques Rousseau. Like with Thomas Hobbes and John Locke, we find in the theory of Jean-Jacques Rousseau the three elements of
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Jean Jacques Rousseau (1712-1778) Du Contract Social ou Principes du Droit Politique, 1762 NaturalState (= lost paradise): - Economic inequality - Social inequality - Domination of the strong over the weak Solution: - Legal equality - Establishing a state as defender of equality - Defense of equality through democratic procedures
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. Fig. 3.4 Rousseau’s conception
every social contract theory: individualism, contractual autonomy, and a conception of the natural state. The design of the natural state in Rousseau is quite different to those of Hobbes and Locke (see . Fig. 3.4). According to Rousseau, the natural state is the ideal state of freedom and happiness. There would be no motivation to escape from the natural state. He considers the natural state a situation where human individuals are living in small groups or families on the basis of love and affection. They are free and can live in accordance with their fundamental needs. According to Rousseau, however, it is a historical fact that mankind has been driven out of the paradise of the natural state. They are now living in larger societies. The reason for this development was the introduction of agriculture and the system of private property of land. The phenomenon of property led to the formation of social structures that are no longer based on love and affection, but on economical expropriation. This leads to different social classes of possessors and of those who have nothing and must therefore serve the former. Rousseau does not describe the natural state as a collection of separate individuals without any social ties. Rather, he describes it as a social state marked by strong inequality. This is a very new aspect. Both Hobbes and Locke only conceived of individuals as having equal economic and social positions. Both philosophers ignored the economic and social inequality of their time. They only had in mind the landowners and those who were economically independent. Rousseau, on the other hand, reflects the huge inequality between the lower and upper classes during the time before the French Revolution. The strong inequality in Rousseau’s work not only addresses the dichotomy between economic dependency and indepen
Inequality
55 3.4 · Jean-Jacques Rousseau
dency but also, as a result of this distinction, the huge inequality concerning the capacity for self-determination and autonomy. The state of inequality is a state where the natural freedom of human beings is infringed. We can now ask whether Rousseau’s conception could be adequately described in terms of rights. In the natural state, there are no rights but only natural freedom. There was no right to freedom, but rather humane living conditions that were characterized through freedom. In the state of inequality, the living conditions are no longer humane. They are, so to say, not species-appropriate. Human beings suffer from this situation and Rousseau asks for means to improve their situation. The social contract is the solution. According to Rousseau, the social contract serves the purpose of avoiding social inequality. Inequality is the source of the infringement of freedom. The abolition of inequality leads, therefore, to the restoration of natural freedom. Rousseau’s solution of the problem refers not to rights in the meaning of an absolute position of an obligee toward obligors, but rather as a matter of equalization of relative positions. Everybody should have the same social position in terms of access to freedom and benefits. In the Rousseauian frame, rights are not conceived of as super-positive norms. Instead, rights are always considered positive norms issued by a public legislator. This becomes particularly clear by the example of the right to property. Unlike Locke, Rousseau considers the right to property not the permission to retain what the bearer of the right has taken as a possession, but a right to take possession of what the state allocates. The citizen only has the right to equal allocation. In principle, the same idea is applicable to the right to life. The difference is only that the right to property can be quantified while the right to life cannot. So, if any member of society should have the right to life, everybody else should also have an equal right to life. If a member of society should not have the right to life—for example, because he is a murderer—then everybody else who is a murderer should also not have a right to life. In any case, rights are a question of equality and not a question of an absolute position. Rousseau applies the same idea to the question of self- Volonté Générale determination, insofar as the social contract functions to abolish the domination of the strong over the weak. Every
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Criticism
citizen should have equal influence and power. The government shall be an assembly of the people, where every citizen has the same voice and the same vote. Oppression is avoided because laws and political decisions come about only by the consent of all citizens. The sum of the individual wills (volonté de tous) becomes the general will of the society (volonté générale). Justice and the protection of fundamental human interests, like the interest in life and freedom, are not guaranteed through rights, i.e., through the socially recognized and respected power to demand something from others, but through the procedure of making the volonté générale. The ultimate legitimization of rules is the procedure of democratic emergence of the public will. This view is still relevant today. A prominent contemporary representative of this doctrine is Jürgen Habermas. The idea that human rights are simply a matter of equality and that equality can be guaranteed by democratic procedures of deliberation and legal or political decision making is not very convincing. The counter- arguments are as follows: 1. Rousseau’s idea of adequate procedure demands unanimity. Modern democracies operate with majorityvotes. This involves the opportunity for the majority to disregard the fundamental human interests of the minority. On the other side, it is not practicable to demand unanimity because this would lead to a parliament’s inability to act. 2. Equality is no guarantee for the protection of fundamental human interests. It is possible that the majority of a society decides to avoid inequality by infringing certain fundamental interests. Let’s say that the majority decides that every girl should be circumcised. So, equal treatment is guaranteed because every (female) person has to bear the same suffering. But it is obvious that female circumcision infringes a very basic human interest. You may want to argue that Rousseau was one of the most prominent thought leaders of the French Revolution and that the French Revolution led to the French Declaration of the Rights of Man and Citizens of 1789, which encompasses more than just the right to equality (see . Fig. 3.5). Nevertheless, we must realize that the Declaration of 1789 was not only influenced by Rousseau, but also by the spirit
57 3.5 · John Rawls
. Fig. 3.5 French declaration of the rights of man and citizens
of the American Revolution. Its first two articles show these two influences. Article 1 stresses the principle of equality. Article 2 defines the aim and function of the state, namely, to preserve natural human rights. The catalogue of rights relates partly to Locke (liberty, property) and partly to Rousseau (security, resistance of oppression). The Rousseauian influence becomes clearer when we look at the mechanisms of the protection of rights. Until recently, it was not possible in France to appeal to the courts with regard to issues related to the protection of human rights. This was due to the idea that the democratic procedure of legislation already ensures that a violation of human rights cannot take place. Forensic rights protection was therefore considered superfluous.
3.5
John Rawls
Now I want to move to John Rawls. In the nineteenth century and the first half of the twentieth century, there was no discourse of the social contract theory in philosophy or legal theory. It was only John Rawls who revitalized this conception in 1971 with his book A Theory of Justice (see . Fig. 3.6). Since then, social contract theory is on the agenda again. As with any other social contract theory, we find in Rawls a foundation of the theory on the conditions of individualism and contractual autonomy. The difference to other theories again concerns the description of the natural state, which Rawls calls the original position. Rawls does not start from lonesome, unbound individuals. His starting point is an existing society, i.e., a certain social structure of cooperation. But this society is characterized by injustice and inequality. For Rawls, this situation is not acceptable because cooperation is based
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. Fig. 3.6 Rawls’conception
Maximin Principle
on contributions of all the participating individuals and, accordingly, must have benefits for all participating individuals. The distribution of the benefits and burdens of cooperation must be fair. The challenge of his theory of justice is therefore determining the principles of a fair distribution of the benefits and burdens of cooperation. His conception is a one of distributive justice. Rights in this context are things that are distributed by society and not something the individuals holds before they come to society. The distribution of benefits and burdens occurs equitably when all members of society agree, or upon informed and rational thought would agree, with the principles of distribution. In order to determine the fair principles of distribution, Rawls follows the so-called Maximin Principle. The idea behind this principle is that individuals must choose the principles of distribution under conditions of uncertainty. They cannot calculate the probability of whether a certain principle of distribution will be advantageous or disadvantageous to them. For Rawls, individuals in the original position have a conservative, careful attitude toward unpredictable risks. Therefore, they will choose those principles of distribution which minimize the risks to them. That means they will prefer principles which guarantee them the best (maximum) of all bad (minimum)
59 3.5 · John Rawls
possibilities. They will, in other words, choose a strategy of risk-minimalization. A very important condition of the original position is that individuals have absolutely no idea about the chances that they will have in the constituted society to attain particular positions. They do not know their place in society; their class, position, and social status, their fortune in the distribution of natural assets and abilities, their strength, intelligence, etc. They also do not know about their own conceptions of good or their special psychological propensities. Rawls calls this situation a position behind a veil of ignorance. There are three principles that individuals would rationally choose behind the veil of ignorance: 1. The Liberty Principle. According to this principle, each person has an equal right to the most extensive basic liberty that is compatible with an equal liberty for others. Unlike material goods, liberty is not a scarce resource. So, it is possible to distribute a maximum or optimum amount of liberty to each individual. The only limit to liberty is the equal liberty of each other. Rawls shares the opinion that this scope of liberty is filled with the political liberty to vote and run for office, freedom of speech and assembly, liberty of conscience, freedom of personal property, and freedom from arbitrary arrest. So, the scope of equal liberty is more or less identical to the catalogue of the classic human rights. 2. The Difference Principle. The second principle of distribution they would choose is the principle according to which social and economic inequalities are to be arranged so that they are of the greatest benefit to the least advantaged members of society. Social or economic resources and positions are scarce. It is not possible to provide each member of the society with an optimum amount of it. Inequalities are therefore unavoidable. Nevertheless, they are acceptable if they are arranged in a way that the least advantaged members of society are in a better position than they would be the case in any other kind of distribution. 3. The Principle of Fair and Equal Access. The unequal distribution of social positions and economic goods is compatible with the equality of the members of society if every individual has an equal opportunity to attain privileged positions. The conditions of access must therefore be impartial and generally available.
Liberty Principle
Difference Principle
Equal Access
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Criticism
3
For our purposes, we must take a closer look at the liberty principle. First, we must recognize that the scope of liberty which can be distributed equally is much broader than the scope of classical human rights. I will give you an example from German case law. The freedom to ride in a public forest is obviously a freedom that can be distributed equally. But, the freedom to ride in a forest is not a human right. Rawls shares the opinion that the principle of liberty is “lexically prior” to the difference principle. This thesis cannot be defended for every kind of exercise of liberty, e.g., not for the freedom to ride in the forest. It might be applicable to human rights insofar as they relate to fundamental human needs that no one would renounce regardless of whatever other advantages they could get in exchange for them. Rawls does not distinguish between liberty in the broadest sense and liberty in the sense of human rights. Another very important aspect of Rawls’s conception is that his principles of justice are related to a particular society. You must first be a member of that very society before you are entitled to vote for the relevant principles of justice and before you can be a partner of the social contract. This construction can only justify civil rights, but not human rights. It follows that Rawls’s conception of the social contract does not lead to a foundation of human rights because human rights refer to all human beings and not only to members of a particular society. This fact remains hidden because Rawls claims that the scope of liberty according to his liberty principle is exactly identical to the scope of human rights.
3.6
Bound Before Contract
hy Social Contract Theories Cannot W Serve as a Foundation for Human Rights
Having presented a brief overview of the major theories of social contract, I will show you once again why these theories are not suitable to provide a justification and foundation for human rights. 1. Socially unbound individuals cannot take over obligations. The classical conceptions of the natural state describe the inmates of that state as unbound, selfish individuals without any social ties to each other. Rousseau assumes social ties that are based on love and liking. But he does not think about people who are not connected that way. From this starting point, it remains
61 3.6 · Why Social Contract Theories Cannot Serve as a Foundation...
an open question how such antisocial entities could ever make promises or enter contracts with people outside their scope of liking. It might be possible to enter strategic agreements which are based on mutual egoistic interests, but such agreements can never establish a foundation of inalienable and irrevocable human rights. The rights that would follow from such a strategic agreement are always under the condition that they continue only to extent that the interests of the parties remain aligned. If one of the parties were to come to the insight that their private benefit could be larger if they were to cancel the agreement, then they would freely revoke it. It is not enough to understand that there are no chains which bind the individual to the aims and purposes of heteronomic authorities (God, nature). The absence of such heteronomic authorities might lead to the insight that human individuals are free. But it does not lead to the conviction that we are obliged to respect the freedom of others and to recognize and appreciate their autonomy. From this follows that the first and fundamental obligation cannot be established by contract. It must already exist before it is possible to agree to a contract. An individual who is not morally bound to anything is not capable of agreeing to a contract. The right to personal freedom must be recognized and respected before we can create systems of cooperation that are based on promises and contracts. 2. Contracts only establish bounds for the parties of the contract and not for persons outside the contractual ties. If a contract is the starting point of every kind of obligation, we cannot have obligations toward those who are not contracting parties. Even if they invite us to enter the contract with them, we are not obliged to comply. It is not an objection to say that the social contract is not a real contract but only a thought experiment. The idea of a contract includes the idea of the freedom to choose whether or not the parties are willing to enter the contract. This aspect may not be ignored in a thought experiment concerning the idea of a contract. 3. Therefore, the conception of human rights based on a social contract must fail. That was exactly the reason why the conception of human rights, as it was developed in the philosophy of the Enlightenment and as it should be implemented as part of the American and
Bound Beyond Contract
Legal Consequences
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French revolution, has ultimately failed. Only the nationals of their own state were considered contracting parties and it was possible to quit the contract with those who were considered to be an enemy or an antisocial subject. Regarding those without citizenship, there was no feeling obliged to respect their human rights. They were considered aliens, i.e., people without rights. This attitude was evident in the practices of the CIA, bringing people without US citizenship to Guantanamo or other countries to torture them.
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3.7 A New Approach
A New Approach After World War II
Only as a result of the horrible events during and after the Second World War did it become obvious that human individuals needed to be protected against the exclusion of any social tie and that it is fundamentally unjust to leave human individuals alone in the natural state. In particular, the experience of being a refugee and not enjoying any rights anywhere in the world led to the demand of the German Jewish philosopher Hannah Arendt for “a Right to Rights”, i.e., a position of rights that are not only philosophical ideas but also positions that are always connected with the right to be protected effectively by any state power regardless of the nationality or citizenship of the person. As a result of these new ideas, the United Nations Organization, which was established in 1945 immediately after the war, was given the task of establishing an international human rights regime in order to guarantee fundamental human rights for every person, independent of their citizenship and legal status. We will take a closer look at that regime in the next lesson. ? Do you Still Remember? 1. Contract theories have three elements in common. What are they? 2. Explain how social contract theories differ from each other. 3. Why is it not possible to provide a foundation of human rights by referring to legislation by God? 4. Why is it not possible to justify universal human rights on the idea of a social contract?
For the answers, see Chap. 7 21.
63 Reading Recommendations
Reading Recommendations Arendt, Hannah: ‘The Rights of Man’. What Are They? In Modern Review 1949, 24–37 Friend, Celeste: Social Contract Theory n.d. In Internet Encyclopedia of Philosophy. http://www.iep.utm.edu/soc-cont/ Manzoor, Elahi: Social Contract Theory by Hobbes, Locke and Rousseau. n.d. [http://www.academia.edu/3138759/Social_ Contract_Theory_by_Hobbes_Locke_and_Rousseau] Rawls, John: A Theory of Justice. Cambridge MA: HUP 1971. n.d. https:// w w w .u t a .e d u / p h i l o s o p h y / f a c u l t y / b u r g e s s - jackson/A%20Theory%20of%20Justice% 20(Excerpts).pdf
Case Law BVerfG, decision of 06/06/1989 – 1 BvR 921/85 –, “Riding in the woods”, BVerfGE 80, 137. n.d.
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The Human Dignity Approach Contents 4.1
Human Dignity in International Law – 68
4.2
he History of the Notion T “Human Dignity” – 71 Reading Recommendations – 78
© Springer Nature Switzerland AG 2023 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-031-32292-1_4
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The Human Dignity Approach
4
The human dignity approach is suggested by the texts of international human rights treaties. The preamble of the UN Charter of 26 June 1945 refers to “faith in fundamental rights, in the dignity and worth of the human person, in the equal rights of men and women.” The preamble of the Universal Declaration of Human Rights (UDHR) of 10 December 1948 repeats this wording and adds a reference to the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family.” Article 1 of the UDHR states that “all human beings are born free and equal in dignity and rights” and adds that human beings are “endowed with reason and conscience.” The preambles of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both of 16 December 1966, state that “the equal and inalienable rights of all members of the human family … derive from the inherent dignity of the human person.”
The Meaning of Human Dignity in International Human Rights Documents There is no legal definition of the term human dignity in international law. The wording of the documents of 1945 and 1948 combines the concepts of human rights, human dignity, equal rights for men and woman, as well as dignity and worth. The relationship between these concepts remains unclear. The International Covenants of 1966 explain the relation between dignity and rights as a relationship of derivation. A worldwide survey among philosophers and intellectuals conducted in 1947 by the United Nations Educational, Scientific and Cultural Organization (UNESCO) did not lead to a distinctive finding. Opinions about the concept “human dignity” as well as the term “human rights” were very confusing and diverse.
67 The Human Dignity Approach
The Heteronomic Understanding of Human Dignity In Cicero (de Officiis) and in many philosophers of the European Renaissance (Bartolomeo Facio, Gianozzo Manetti, etc.), human dignity was considered a particular status of human beings according to which they, in contrast to animals, hold a certain kind of “office” and are therefore obliged to act in accordance with the rules of this “office.” Human dignity refers therefore to duties and not to rights. In Germany, this approach was the prevailing one between the 1950s and 1990s. This attitude still predominates in countries that are epitomized by Catholic culture, e.g., in France—where human dignity is considered the counter-concept to human rights. The function of human dignity is to restrict the range of human rights—examples include the dwarf tossing case and the justification of the burka ban.
The “Ensemble Theory” of Human Dignity Within the English-speaking world, the prevailing idea is that human rights must be considered pure positive law. From this point of view, human dignity cannot be considered a principle from which human rights can be derived. Instead, human dignity is considered to be a certain rank or status that is defined by the sum of all the codified human rights (Hilgendorf: human dignity = the ensemble of all human rights). Human dignity refers to the equal rank of every human being. It elevates, so to speak, all humans to the status of the nobility.
The Autonomic Understanding of Human Dignity The autonomic conception of human dignity was first formulated by the Italian philosopher Giovanni Pico Della Mirandola (1463–1494) in his work Oratio de Dignitate Hominis (1486). Mirandola focuses on the ability of human beings to design their own lives according to their own free will. The freedom of will is what makes the difference between human beings and other entities. The dignity of man is founded in this freedom. This dignity does not depend on the fulfillment of duties, but solely on the competence of human beings to manifest their own free will and design their own lives.
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What is dignity?
Human Dignity in International Law
In this chapter, I want to introduce the human dignity approach. I believe that this approach is the only one that is suited to provide a convincing foundation of human rights. Nevertheless, we must recognize that the concept of human dignity is very often very misunderstood. This history of misunderstanding began with the discussion about the term in international human rights discourse. In the international law, human dignity is first mentioned in the preamble to the Charter of the United Nations. Here it reads:
»» We the peoples of the United Nations determined to save
succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small …
The wording alone, however, shows that the meaning of “dignity of the human person” was not entirely clear to the drafters of the Charter: 1. The expression “dignity and worth” is confusing. Obviously, it seems that dignity means something other than “worth.” But what is the difference between “dignity” and “worth”? What is “dignity” when it is not a kind of “worth”? 2. What is the relationship between human rights and human dignity? Both are listed one behind the other and the list also embraces the “equal rights of men and women.” Are “human rights,” “human dignity,” and “equal rights” different things of the same category, so that they can be summarized in a list like apples, pears, and cherries can be summarized under the category of “fruits”? Is it possible to understand “human rights” as unequal rights in comparison with “equal rights”? Is “human dignity” the designation of a third sort of rights? Smuts
Another aspect is similarly confusing. The clause in question was first proposed by the South African Prime Minister Jan Christiaan Smuts (1870–1950). He criticized the first draft of the preamble, which did not contain any reference to human dignity. He demanded a preamble that
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embraced a confession to the basic ideals of the coalition that fought against Hitler. Smuts believed that World War II was a war between different religions and that fundamental human rights, human dignity, and the equal rights of men and women were the core elements of the religious beliefs for which the Allied Forces fought. Smuts’ draft didn’t contain the expression “dignity of the human person” but rather the expression “dignity of the human personality.” There was an intense dispute among the drafters of the Charter about this proposal and many of them proposed to replace “human personality” with “human being.” Finally, the drafters decided on the expression “human person.” This was a compromise because Smuts had strong objections against the expression “dignity of the human being.” The reason for that objection was that Smuts did not share the idea that every human being is endowed with dignity or that dignity should ascribed to every human being. Dignity should only be ascribed to those who are considered personalities. The concept of personality should distinguish between different sorts of human beings. Smuts distinguished between white human beings and the sort of colored human beings. Dignity should be ascribed only to the white race and not to every human being. While for Smuts the term dignity was an instrument of distinction between human beings, the majority of the drafters shared the opinion that dignity is something that should be ascribed to every human being and that there is no difference between human beings in terms of dignity. They considered the expression “human person” a synonym of “human being.” It is important to recognize that the preamble of the UN Charter uses the phrasing “to reaffirm faith in.” This expression shows that the drafters of the Charter shared the opinion that neither human rights nor the dignity of the human person nor the equal rights of men and women are something that can be established by law or treaty. The word “faith” was meant by Smuts as a religious term. Nevertheless, as we know, not every contracting party of the UNO was motivated by a particular kind of religious belief. In particular, the Soviet Union was expressly not a religious state. China at the time, and until 1971, was represented by the Kuomintang government, whose official ideology was also not influenced by any particular reli-
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gious belief. Still, all contracting parties could accept the wording “reaffirm faith in.” This shows that “faith” in the UN Charter may not be understood as religious belief of a particular kind. “Faith” simply means that each contracting party of the UN Charter shared the opinion that there are human values that should be regarded as the ethical basis of the new world organization. They also shared the opinion that these values can be embraced with the terms “human rights, dignity of the human person, and equal rights of men and women.” Nevertheless, the idea of common values of humanity was not discussed in detail and the ideas that the states associated with the concept were very diffuse and different. It is interesting that, in 1947, UNESCO found it pertinent to conduct a worldwide survey among philosophers and intellectuals about the foundation of human rights in order to prepare the drafting of the Universal Declaration of Human Rights. The result was so confusing and diverse that UNESCO decided to keep the answers confidential in order to avoid unnecessary complications in the negotiations over the UDHR. One of the answers came from Mohandas Karamchand “Mahatma” Ghandi. He held the opinion that rights can only emerge through the fulfilment of obligations. So, for example, we would have the right to life only if we fulfill our duties as citizens of the world:
»» The very right to live accrues to us only when we do the
duty of citizenship of the world. From this one fundamental statement, perhaps it is easy enough to define the duties of man and woman, and correlate every right to some corresponding duty to be first performed. Every other right can be shown to be usurpation hardly worth fighting for.
That is precisely what many understand by human dignity. According to this understanding, the relation between human dignity and human rights is to be likened to the relation between duties and rights. Human dignity requires the fulfilling of certain human duties. And those who sufficiently perform their duties are conferred certain rights. The rights describe the precise scope of freedom that is required in order to fulfill the duties. This understanding of human dignity is very influential in countries and cultures that are strongly epitomized
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by the spirit of Catholicism (Łuków, Hennette-Vauchez). Consider the following two examples from France. 1. The Wackenheim case: Mr. Wackenheim was small in stature. He earned his money by making himself available to be used as a missile in public performances where he was tossed as far as possible by strong, large men. This performance was called dwarf tossing. The police authorities issued a prohibition order against these performances and the Conseil d’Etat upheld it on the grounds that the performance violated human dignity and was therefore contrary to the public order. There was a similar case in front of the German Verwaltungsgericht Neustadt. 2. When the French law concerning the ban of burkas and niqabs in public came before the ECourtHR, the French government defended the law, arguing that the complete concealment of the face violates human dignity and that it was therefore necessary to prohibit this kind of clothing.
Dwarf Tossing
Burka Ban
According to the French approach, it is incompatible with the obligations derived from human dignity for human beings to display themselves in public in a way that is considered degrading. According to this view, it is contrary to human dignity to display oneself as a human missile or as a human nobody. In both cases, people disregard the duty to appear in public in way that human dignity demands. In these cases, the state thus has the right to oppress and punish a behavior that is contrary to human dignity. Defending human dignity does not mean defending the real interest of human individuals, but rather defending dignity as a public and super-individual value.
4.2
he History of the Notion “Human T Dignity”
This understanding of human dignity is very traditional. In fact, it is the oldest understanding of the concept. “Dignity” comes from the Latin notion dignitas, which expressed a certain difference in worth of particular personalities compared to the rest of mankind. In this original meaning, the expression “human dignity” was rather senseless because the function of the notion was just to distinguish between different particular human individu-
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als in terms of their social value and status. In the ancient language, one could only speak about the dignity of the nobles as compared to the commoners, the dignity of the king as compared to his subjects, the dignity of a judge as compared to other persons in court, etc. Only the Roman statesman and philosopher Marcus Tullius Cicero (106– 43 BC) coined the notion “human dignity” in order to distinguish between human beings and animals. Cicero defended the idea that human beings have a higher rank than animals and that this rank comes with certain duties. Human individuals who disregard these duties degrade themselves to animal-like entities. However, there was already another use of the term “dignitas” in antiquity. This is found in Lucius Annaeus Seneca (ca. 1–65). Here, dignity functions as a counter term to price. With these words, Seneca expresses a distinction that was characteristic of the philosophy of the Stoa since its beginning in Greece in the third century BC, namely the distinction between the one absolute good and the many relatively valuable goods. This use of language— dignity as an opposite term to price—was adopted by Immanuel Kant. We will return to this in the next chapter (see 7 Sect. 5.2). The term “human dignity” as defined by Cicero became very popular in the fifteenth century. Philosophers of the Italian Renaissance like Bartolomeo Facio, Gianozzo Manetti, and others started with the question of why God created human beings. The answer was: not because God requires humans in order to have servants or because there is any other need for him. God created man simply because of his pure goodness. Humans are therefore not means to any particular end. Rather, as Immanuel Kant later expressed, they are ends in themselves. Being an end in themself is what distinguishes humans from animals and every other non-human entity. Being an end in themself is the meaning of the term human dignity. Nevertheless, all these philosophers shared the traditional opinion that the social rank of human dignity comes from a source of special human obligations, namely, the duty to subject oneself under the rule of God and to follow his divine commandments. This traditional understanding of human dignity can be called the heteronomic one. It is interesting to note that some contemporary philosophers are still fixated on the idea that the notion “dignity” refers to a certain rank or status. Accordingly, the American philosopher Jeremy Waldron defends the opin
Rebirth of human dignity
Ensemble Theory
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ion that dignity originally refers to the extraordinary high rank and status of nobility as compared to the status of ordinary people. As a result of the French revolution, ordinary people were now considered elevated to the high rank of the nobility—they became equal in rank and status with the nobility. According to this idea, human dignity is defined by the sum of all the codified human rights. The German legal philosopher Eric Hilgendorf speaks of human dignity as the ensemble of all the human rights (Ensemble Theory of Human Dignity). American philosophers share this view because they do have no other way of understanding the meaning of human dignity, but only an understanding from a purely positivistic point of view. Nevertheless, in order to find an adequate foundation for human rights, this approach is fruitless. Waldron and Hilgendorf consider human dignity as being derived from the entirety of codified human rights. Our interest is just the opposite. We do not want to derive the principle of human dignity from human rights. Instead, we search for the opportunity to derive human rights from the principle of human dignity. The traditional heteronomic understanding of human dignity was challenged by the Italian philosopher Giovanni Pico della Mirandola (1463–1494) in a famous writing that was published in 1486 under the title De Dignitate Hominis (“On the Dignity of Man”). Mirandola tells the story of the creation of man. God created man, took him in the middle of the world, and spoke to him:
»» 18. We have given you, Adam, no fixed seat nor features
proper to yourself nor endowment peculiar to you alone, in order that whatever seat, whatever features, whatever endowment you may responsibly desire, these same you may have and possess according to your desire and judgment. 19. Once defined, the nature of all other beings, is constrained within the laws prescribed by us. 20. Constrained by no limits, you may determine it for yourself, according to your own free will, in whose hand we have placed you. 21. I have placed you at the world's center so that you may thence more easily look around at whatever is in the world.
Mirandola
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22. We have made you neither of heaven nor of earth, neither mortal nor immortal, so that you may, as the free and extraordinary shaper of yourself, fashion yourself in the form you will prefer. 23. It will be in your power to degenerate into the lower forms of life, which are brutish; you shall have the power, according to your soul's judgment, to be reborn into the higher orders, which are divine.
Mirandolas’s idea was completely opposite of the traditional understanding. According to Mirandola, the dignity of the human person does not refer to duties and obligations but to the competence to produce free will. We can call this conception of human dignity the autonomic one. Mirandola presented a completely new idea in traditional religious language. He was the first philosopher to identify human dignity with the free will of human persons. In contrast to former conceptions, how individuals use their capability to form a will was no longer relevant. It was not relevant to consider what individuals really want. The only thing that is relevant is the capacity to create one’s own free will. This becomes clear in the last paragraph of the cited text: Human individuals can decide to degenerate into lower forms of life, which are brutish, i.e., animal-like. Or they can decide to be reborn into the divine order. The dignity does not depend on the alternative which the individual chooses. Rather, the competence to decide is what makes the dignity of the individual. In this meaning, human dignity has nothing to do with duties and obligations. Instead, it has to do with freedom, namely the freedom of will. At this point, I would like to draw your attention to the important distinction between freedom of will and freedom of action. I will return to that. We must keep in mind that the alternative conceptions of human dignity—the understanding as obligation versus the understanding as freedom of will—were not discussed, perhaps not even clearly seen, by the drafters of the UN Charter or the drafters of the UDHR. The UNESCO survey had shown that both conceptual worlds existed side by side and that there was no consensus on this issue. The concept of human dignity became the unifying bond that played a central role in the drafting of the
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UDHR between late 1946 and December 1948, without the participants having a unified understanding of what it should mean. In any case, the drafters of the UDHR agreed that human rights should be understood as rights that are somehow closely related to human dignity. This is clear from the first sentence of the preamble:
»» Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world …
as well as in the fifth paragraph,
»» Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person
and in Article 1:
»» All human beings are born free and equal in dignity and
rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Thus, throughout many sessions it was discussed how the connection between human dignity and human rights should be expressed. Nevertheless, the delegates could not agree on a formulation that brought both aspects together. Consequently, the notion of human dignity appears only in the preamble while the first article adds some relevant aspects to it. The term dignity appears in the preamble twice. The fifth paragraph is insofar a repetition of the formula in the UN Charter. The first paragraph does not speak of the dignity of the human person anymore, but replaces this expression with the expression all members of the human family. This wording was chosen in order to make clear that dignity is not something that can only ascribed to certain parts of mankind. Members of the human family are individuals and every human individual should be considered someone to whom dignity should be ascribed. Article 1 of the UDHR shows the reasons why human dignity should be ascribed to every human individual: every human is endowed with reason and conscience. What in Mirandola was expressed with the words “free will” is here described as “reason and conscience.” Nevertheless, one question remained unclarified: is it true that every
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member of the human family, i.e. every human individual, is endowed with reason and conscience? This question surfaced for the first time in the context of modern bio-technology. The drafters of the UDHR were not aware that there could be a difference between “human persons” and “every member of the human family” because individuals are not persons when they are not endowed with reason and conscience. We will come back to this point later. Another very interesting point of Article 1 of the UDHR refers to something that is not written. It appears only when we compare the text to the very similar wording found in Section 1 of the Virginia Bill of Rights of 12 June 1776.
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»» That all men are by nature equally free and independent and have certain inherent rights.
ICPPR/ICESCR
There, we read that all men are equally free and independent and that they have certain rights. This is very similar to the wording in Article 1 of the UDHR which provides that all human beings are born free and equal in dignity and rights. The key difference is that the words “by nature” in the Virginian Constitution do not appear in the UDHR. One could think that the phrase “by nature” is synonymous with “are born”. But there was a long debate among the drafting committee of the UDHR about whether it should be said that human individuals are endowed with reason and conscience by nature. Some delegations argued for the expression “by God” (Brazil). Ultimately, the conference could not agree on a common metaphysical preunderstanding and the words “by nature” were simply deleted. It is interesting to recognize that from the viewpoint of the drafters, on the one hand, “human dignity” obviously refers to a certain metaphysical understanding while, on the other hand, that metaphysical preunderstanding was to remain open. In other words, the question about the foundation of human rights was put forward to philosophy. Fortunately, however, the third step of development in the codification of international human rights succeeded in further clarifying the relationship between human dignity and human rights. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both of 16 December 1966, state in their preambles that the inherent dignity and the equal and inalienable rights of all members of the human family were not only the foundation of freedom, justice, and peace in the world, but also that
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“these rights [are] derive[d] from the inherent dignity of the human person.” With this wording the relationship between dignity and rights was clarified insofar as it was shown that human dignity is considered the basis from which human rights can be derived. Human dignity is therefore not a right itself. It is something different from rights. It is the principle on which rights are based. As the result of what we have learned in this chapter we can conclude the following: 1. According to the understanding of the international human rights instruments, human rights are a set of rights that are not established by law or treaty, but rather are the precondition of law and treaty. Thus, the codification of human rights is not to be considered a kind of creation, but rather a kind of recognition. 2. Human rights are based on a common principle that is called the principle of human dignity. The human rights can be derived from the principle of human dignity. Human dignity is considered something that must be ascribed to every member of the human family or, perhaps at least, to every human person. 3. The idea of human dignity is not clarified in international law. There is no legal definition. Nevertheless, the fact that international law considers human dignity the source of human rights—as opposed to human duties—suggests that the concept should be understood in the autonomist sense. 4. So, it is the task of the human rights courts to clarify the concept. But it seems that the courts cannot achieve this task without very deep und careful philosophical reflection. This is what we shall do in the next lesson. ? Do you Still Remember? 1. What was the original understanding of dignity? 2. There is a heteronomic as well as an autonomic understanding of human dignity. Which of these understandings form the basis of the decisions in the so-called dwarf tossing cases? 3. What are the crucial criteria of the heteronomic understanding of human dignity? 4. What are the crucial criteria of the autonomic understanding of human dignity?
For the answers, see Chap. 7 21.
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Reading Recommendations
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Cicero, Marcus Tullius, De officiis (On duties), I, 105, 106. n.d. Gandhi, Mohanas Karamchand: Letter to the Director General of UNESCO. In Jaques Maritain (ed.): Human Rights. Comments and Interpretations. A symposium edited by UNESCO. UNESCO/ PHS/3 (rev.) 1948 – http://unesdoc.unesco.org/ images/0015/001550/155042eb.pdf Gisbertz, Philipp: Menschenwürde in der angloamerikanischen Rechtsphilosophie. Ein Vergleich zur kontinentaleuropäischen Begriffsbildung. Baden-Baden: Nomos 2018. Hennette-Vauchez, Stéphanie: Human dignity in French law. In Düwell/ Braarvig, Brownsword/Mieth (eds), The Cambridge handbook of Human Dignity, Cambridge (UK) 2014, 38–374. Heyns, Christof: The preamble of the United Nations Charter. The contribution of Jan Smuts. African Journal of International and Comparative Law 7 (1995), 329. Hilgendorf, Eric: Problemfelder der Menschenwürdedebatte in Deutschland und Europa und die Ensembletheorie der Menschenwürde. Zeitschrift für Evangelische Ethik 57/4 (2013), 258–271. Łuków, Pawel: A Difficult Legacy: Human Dignity as the Founding Value of Human Rights. Hum Rights Rev. 19 (2018), 313–329. Pico della Mirandola, Giovanni: Oration on the Dignity of Man. n.d. http://bactra.org/Mirandola/, http://www.brown.edu/Departments/ Italian_Studies/pico/text/bori/frame.html Waldron, Jeremy: Dignity and Rank. European Journal of Sociology 48/2 (2007), 201–237.
Case Law Conseil d’Etat Assemblée, du 27/10/1995 – 136727 – (Sté Fun Productions et Wackenheim), RDS 1996, 177. n.d. [https://www. legifrance.gouv.fr/affichJuriAdmin.do?oldAction=rechJuriAdmin &idTexte=CETATEXT000007877723]. ECtHR, jud. of 01/07/2014 – 43835/11 – “S.A.S. vs France”, HUDOC. n.d. VG Neustadt, dec. of 21/05/1992 – 7 L 1271/92 –, NVwZ 1992, 98.
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The Human Dignity Principle I Contents 5.1
ignity as a Value D Judgment – 84
5.2
ignity as a Specific Category D of Value – 87
5.3
ersonhood as the Value P Standard of Dignity – 90
5.4
“ Me-Dignity” and General Human Dignity – 94
5.5
he Risk of Empirical T Error – 97 Reading Recommendations – 98
© Springer Nature Switzerland AG 2023 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-031-32292-1_5
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Etymology of “Dignity”
5
“Dignity” goes back to the Latin word “dignitas.” Dignitas stems from the Indo-Germanic root “dek,” which means to accept something, to adopt something, to prefer something. The German translation of dignitas is “Würde.” This word stems from the Old High German root “wīrtī” = Wert, worth, value. From the etymology follows that dignity does not refer to an attribute of an entity out in the world but to an act of evaluation.
Value Judgments Acts of evaluation result in a value judgment. Value judgments have the form “X is (considered) valuable” or “X is (considered) good” or “X is (considered) worthy.” The abstract structure of value judgments is as follows: 55 p prefers x compared to y on the basis of value standard v. In contrast to assertoric propositions (“Beijing is the capital of China”), value judgments do not tell us something about facts. They are therefore neither true nor false. They are statements by a person concerning certain facts which tell us something about the attitudes of the person who delivers the statement. Value judgments are either valid or invalid. Their validity depends on whether there is a person who delivers judgment or at least agrees with it. This understanding of value judgments corresponds to the so-called subjective value theory or value subjectivism (Mackie, von Wright). Many philosophers (McNaughton, Putnam) contest this theory and defend instead an objective value theory or value realism. Value realists believe that values are part of the objective world (“world inventory”) and are therefore a matter of facts. Objective value theories are modern variants of the ancient Greek cosmos theory.
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Standards of Evaluation Value judgments are only comprehensible if they indicate a standard of evaluation. That is the value scale on which the evaluation is oriented. A value judgment without the indication of a standard of evaluation is to be considered irrational.
The Categories of Values Immanuel Kant distinguishes two different categories of value: relative value (price) and absolute value (dignity). He further distinguished between two sub-categories of price: Intrinsic value (fancy price) and extrinsic value (market price). The criterion of distinction is the standard of evaluation (value scale): 55 Intrinsic value—value scale: love, liking. 55 Extrinsic value—value scale: exchangeability (supply and demand). 55 Absolute value—value scale: “that which constitutes the condition under which alone anything can be an end in itself.” This is—deviating from Kant—the personhood.
Personhood Personhood consists of the self-awareness that “I am” as well as the self-awareness of “who I am” (personal identity). The awareness of “who I am” is an individual’s consciousness of being the author of one’s own will and therefore the source and ultimate reference point of all their evaluations. Having this awareness makes an individual more than just a device or instrument in the hand of others, or a mere object of nature. The awareness of “who I am” can also be called the awareness of one’s own authenticity or the awareness of being someone and not just something. Living entities who have this awareness are called persons.
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Absolute Value of Personhood Personhood is valuable in the most absolute sense to every person because it is the required condition of any other evaluation. Any other object can only be considered valuable because it is valuable for that person by virtue of her personhood. The awareness of personhood (authenticity) is the source of all self-esteem.
5
Only Individual Persons as “Bearers” of Dignity Persons are the only entities to whom we can assign absolute value because only persons, or at least potential persons, are endowed with the capacity to manifest free will on the basis of their own considerations and reflections. Theoretically, non-human persons to whom we can assign dignity are conceivable. On the other hand, not every member of the human family is endowed with personal identity or at least with the potential to develop personal identity (e.g., anencephalous human babies). Therefore, we cannot ascribe dignity to every member of the human family, but only to those who are persons or potential persons. Human dignity refers to the dignity of the human person.
Me-Dignity Every person assigns herself dignity (“me-dignity”) because the capacity to be the author of one’s own free will has absolute value for every person. But the fact that every person may assign herself dignity does not lead to the universal value of human dignity. Human dignity, as a universal value, demands that every person not only ascribe dignity to herself, but also to every other person in the world.
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The Generality of Human Dignity The personhood of every person in the world can be an absolute value for person P only if the personhood of every other person is a necessary condition for person P to develop and maintain respect for their own personhood. Therefore, the personhood of other persons can be an absolute value for person P only if P’s own personhood and the personhood of every other person are equiprimordial. Equiprimordiality refers to the existence of two entities that depend on each other because the first entity is a required condition of the second and the second entity is a required condition of the first. They are like the two sides of the same coin. Either both of them exist or neither do.
The Equiprimordiality Thesis Whether there is equiprimordial connectivity between the awareness of one’s own personhood and the awareness and recognition of the personhood of any other person cannot be answered through pure philosophical means. The answer demands not only an analysis of language but some knowledge about the natural conditions of human life and its development. Therefore, only the empirical sciences can deliver an adequate answer. [Some philosophers considered the equiprimordiality thesis to be a matter of pure philosophy that can be answered through transcendental arguments. Examples of such philosophical trials are the first chapter of Johann Gottlieb Fichte’s Foundation of Natural Law and the chapter “Master and Slave” in Georg Friedrich Hegel’s book Phenomenology of Spirit, 1807.] Therefore, we have to formulate an empirical hypothesis that can be examined by means of the empirical sciences. This hypothesis is thus: The authenticity of any person and the authenticity of any other person are equiprimordial.
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5.1 What is dignity?
5
Etymology
Value Judgment
Truth and Validity
Dignity as a Value Judgment
In this chapter, we move to the core substance of the lecture. It is very important to understand the particular steps of my argumentation that I am introducing here. Only a sufficient understanding of this argumentation allows you to understand what human rights are and which criteria we must observe to address whether we must consider a certain demand to be a human right. The first question we have to ask is: What is dignity? A very good beginning of any explication of concepts is a view on the etymology of the word. The English word dignity comes from the Latin word dignitas, which comes from the Indo-Germanic root “dek.” Dek means to accept something, to adopt something, or to prefer something. Thus, dignity is not an expression that indicates a fact out in the world or a collection of facts. It is also not what we call a sortal. A sortal is a noun that serves the purpose of classifying single entities by counting individuals of the same sort. “Dignity” refers neither to individual entities nor to classes of individuals. Instead, it expresses a value judgment. This value judgement says the following: The Human Being is Valuable. As you will recall, the instruments of international human rights do not talk about “human dignity,” but about “dignity of the human person” or “dignity of all members of the human family.” As I mentioned before, there is a difference between “member of the human family”—which may be equated to “human being”—and human person. Nevertheless, at this stage of my argumentation, we do not have to ask for the object to which we may assign dignity. Rather, we are questioning what is meant by dignity. Therefore, we may at this time leave open the question about the object of the evaluation. What is more relevant here is the question about what value judgments really are. Value judgments in general have a certain structure. We can display that structure in the following way: 55 p prefers x compared with y on the basis of the value standard v We must first distinguish between assertoric propositions and value judgements. The sentence “Beijing is the capital of China” is an assertoric one. It is either true or false. The sentence is true if Beijing is the capital of China. Otherwise,
85 5.1 · Dignity as a Value Judgment
it is false. In any case, its truth or falsity does not depend on the person who asserts this proposition. In comparison, value judgments do not refer to the objective reality. They instead express a certain position or statement of a particular person that relate to reality or aspects of reality. Therefore, value judgments are neither true nor false. They are valid or invalid, and their validity depends on whether there is someone who agrees with that judgment. In contrast to truth in assertoric propositions, the validity of value judgments depends on the person who identifies with it. A value judgment is valid only if there is at least one person who delivers it or who agrees with it. It makes sense to use the notions of truth and validity as possible attributes of assertoric or value judgements, but not as possible attributes of entities beyond the language, i.e., in the outer world. Assertoric propositions can have the attribute of being either true or false. Value judgments can have the attribute of either being valid or invalid. You may find additional information about the characteristic of value judgments in von Wright and Urmson. It is very useful to follow the proposed distinction between truth and validity because it always clarifies the difference between assertoric propositions and value judgments and avoids confusion and misunderstanding. In our ordinary language, we do not carry out this distinction and, for this inaccuracy, we harvest much uncertainty in our thinking. This risk also occurs if we do not distinguish between value judgements themselves and secondary reports about value judgements. When a person makes such a report, the person only asserts a piece of information which can either be true or false. For example, if I say, “Peter prefers Monica out of all girls in the classroom,” I am expressing an assertoric proposition. This is different from what I understand when Peter expresses to me that he has a preference for Monica. In this case, I become a witness of a certain kind of performance, namely the delivering of a value judgment. Value judgments in this sense are performative actions in the meaning of John L. Austin. The general structure of a value judgment shows some variables that require further clarification. So, who is p? P is the one who puts forth the value judgment by showing his own preference for a certain object.
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Human Dignity Judgment
The variables x and y do not need any further comment. X is the object of the evaluation and y makes clear what preference is meant with regard to the particular context. Preferences are always based on a comparison between concurring objects. Y is the object of comparison with x. But what of the variable v? V is a standard or unit of measurement that makes the value judgment rationally comprehensible or understandable. Such standards are in fact values of a higher level of abstraction. Take the following example. Someone says, “This computer is good.” This sentence is not very comprehensible or understandable. We cannot understand why and to what extent the computer is considered to be good. We can ask, “Why do you think that this computer is good?” And the answer could be, “This computer is good because it is stable.” This sentence is a comprehensible value judgment because we now know the relevant standard of measurement—stability. Perhaps someone else would say, “No. This computer is not good. This other one is good because it is faster.” Nevertheless, there is no contradiction between these two value judgments. The former is based on a stability standard while the latter is based on a processing speed standard. Obviously, the persons who deliver these two different value judgments have different interests when it comes to the evaluation of computers. Very often, people deliver value judgments without any reference to a value standard. But those judgments are irrational and it does not make any sense to try to understand them. For value judgments to be comprehensible, we must know on which value standard they are based. Now let us apply the structure of value judgments to the dignity judgment about human beings. The first question is who p is in this situation. The validity of the human dignity judgment depends on our individual statements or attitudes. If we think human beings have dignity, then they have it; if we do not think they do, then they do not. Thus, the answer depends on our personal statements and positions. It is not possible to demonstrate the dignity of the human being or of the human person to those who do not share the same position. Indeed, there are many people who do not share it. I will come back to this point later. A state who implements the principle of human dignity within its constitution or law shows that citizens, or at least the most politically influential part of the population, agree with dignity-judgement concerning human
87 5.2 · Dignity as a Specific Category of Value
beings. People and states who do not agree with that judgment are not wrong in their perception of reality. Our point of view leads us to think that they prefer a different and wrong way of life. We think that sharing the dignity- judgement would be a way to a better life for them. This is why we will try to convince them of the value of human dignity. To convince someone of the value of human dignity is not merely an intellectual challenge. It does not require intellectual or philosophical arguments, but rather the particular kind of experience with other persons that helps establish a new and different relationship to this other person: a particular relationship of self-esteem. I will come back to this problem in the next lesson. The next question is what x is in the human dignity judgement. X is the object of evaluation, in our case “the human being.” But what exactly is meant by “human being”? Is it every single human individual (every member of the human family)? Is it only a personal human individual (every human person)? Is it only those personal human individuals with “personality” (the idea of Smuts)—i.e., what we call a “Gentleman” or a very serious or reliable person? Is it an idea of humanity? Is it mankind as such, the human species? At this point, we are unable to answer this question. But I promise to answer it later. What is y? We cannot know what entity we are to compare human beings to without first knowing what is meant by human being. So at the moment we must also leave this question open. What is v? This question refers to the value standard that underlies our dignity-judgment about human beings. At this stage of my argumentation, the difference between value and dignity becomes relevant. What is the relationship between value and dignity?
5.2
Dignity as a Specific Category of Value
Dignity is a kind of value. Value is a generic term, while dignity is one of the specific terms of value (see . Fig. 5.1). The difference between the different kinds of value is based on the different categories of value standards. So, it is necessary to determine the particular category of value standard that underlies the particular kind of value that we call dignity. There are two different categories of value. According to Maximilian Forschner, the subdivision of the term
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5 . Fig. 5.1 The specific terms and sub-terms of the term “value”. (© Paul Tiedemann)
value in these two different categories goes back to the ancient European philosophy of the Stoa. The Stoa distinguished between the categories of price (axía) and what is today called dignity (axíoma). Nowadays, the locus classicus of that distinction is a spot in Immanuel Kants first book on moral philosophy, Foundations of the Metaphysics of Morals (1786). Here we read:
»» In the kingdom of ends everything has either price or dig-
nity. Whatever has a price can be replaced by something else which is equivalent; whatever, on the other hand, is above all prices, and therefore admits of no equivalent, has a dignity. Whatever has reference to the general inclinations and wants of mankind has a market price; whatever, without presupposing a want, corresponds to a certain taste, that is to a satisfaction in the mere purposeless play of our faculties, has a fancy price; but that which constitutes the condition under which alone anything can be an end in itself, this has not merely a relative worth, i.e., price, but an inner worth, that is dignity.
Kant distinguishes between the two different categories of value: price and dignity. We can express this distinction in terms of relative and absolute value. In the category of relative value, he further sets out two subcategories: the fancy price and the market price. We can express this distinction in terms of intrinsic and extrinsic value. We are used to dealing with extrinsic and intrinsic values in our everyday life. We are very familiar with them. In
89 5.2 · Dignity as a Specific Category of Value
order to determine the value standard of dignity it might therefore be useful to first clear up the value standards of the market and the fancy prices. From there, we can try to come closer to the value standard of dignity. Something has a fancy price if we are interested in it as such. If we are interested in something as such, we love it or we like it. So, the value standard of the fancy price is love or liking. Nevertheless, we are not just interested in only one thing or event or whatever. Sometimes, we can only attain something that we like if we renounce something else in which we also have a similar interest. In such a situation, we must decide what we prefer. We tend to prefer things that we love more than others. All the subjects of our desire are situated in a preference order and this order tells us what we are supposed to prefer in a particular situation. Therefore, all the things we love are related to each other within the framework of a preference order. Take the example of a stamp collector. He desires stamps. He does not want to use them to send letters or postcards. He puts them in his stamp collection book and is simply happy to own them or perhaps he simply enjoys the aesthetic of stamps. Stamps, or a particular sort of stamps, have a fancy price for him. Something has a market price if we are not interested in it as such but only in something else which we can exchange for it. So, the market price of something is always relative to something else that we actually want. The value standard of the market price is the relation between supply and demand—or in other words, the exchangeability. Take the example of a pen pal. She desires stamps like the stamp collector does. But she is not interested in the stamps as they are, she needs them to send letters to her pen pal. So, she exchanges the stamps for being able to send her letter to the address of the pen pal. By these two examples you can determine that a stamp having a fancy price or a market price does not depend on the stamp. The price of the stamp is not an attribute of the stamp itself but a certain attitude of the stamp collector or the pen pal. I think this knowledge about the characteristic of prices and about the two subcategories of prices can help us understand the meaning of dignity. Dignity is the opposite of prices. It does not refer to a relative value but to the opposite of relative. The opposite of relative is absolute. Dignity means an absolute value. Absolute means that this
Fancy Price
Market Price
Dignity
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value is free from any relation to ordinary intrinsic or even extrinsic values, which means that it is not integrated into any preference order, but exists beyond and independent of any possible preference order. Something has absolute value if there is nothing else in the world that could be worth preferring or exchanging for it. Therefore, something has dignity if it is more important in the absolute sense than every other valuable entity (things, relationships, situations, positions, etc.). It is not possible to renounce entities that have dignity nor is it possible to balance them or to prefer things that do not have dignity over things that do. But the question remains: What is the value standard of dignity?
5.3
ersonhood as the Value Standard P of Dignity
The value standard of dignity is, of course, not exchangeability, because dignity is the opposite of market price and exchangeability is the value standard of the market price. Furthermore, pure love and liking also cannot be the value standard of dignity because these form the value standard of the fancy price. So, is there anything that can function as the value standard for absolute values? It must be something that always trumps every other valuable entity in every situation such that it is unavoidably preferable in every situation. Is such a thing imaginable? Many philosophers hold the opinion that such a value standard does not exist. For them, values are always relative. They claim that everything has a price. There is no such thing as an absolute value. I want to prove this skepticism incorrect. There is indeed something that logically has an absolute value and can function as the value standard of dignity. This is what we call personhood or personal identity. What exchangeability is to the category of market prices, what love is to the category of fancy prices, is personhood is to the category of dignity. What is personhood? It is composed of two aspects: 1. The awareness that I am (the awareness of my pure existence), and 2. The awareness of who I am.
91 5.3 · Personhood as the Value Standard of Dignity
Awareness of who I am does not refer to my name, lineage, social status, or the like. Rather, it refers to knowing that I am a person, a somebody, and not just a something. The consciousness of being a person is given with the consciousness of being the author of my own will. I am a person insofar as I am aware of having emerged from a lifelong continuous stream of actions that I attribute to myself and through which I have become who I am. I am thus created and transformed by my will, which manifests itself in actions. Because I conceive of myself as a person, that is, as the embodiment of my past, present and future actions, I cannot conceive of myself as a thing or as a mere object that can be found in the world. Rather, for me, I am my will manifested in actions. This awareness of myself as a person can therefore also be called personal identity or—emphasizing the origin of my will and my actions— authenticity. I use these three expressions (personhood, personal identity, authenticity) interchangeably. A lack of authenticity can confuse or destroy our personal identity, because in such a situation we are unable to understand ourselves as the originators of our will, and are instead forced to conceive of ourselves as mere objects responding to the laws of nature, or as mere instruments or devices in the hands of others. We thereby become an object that can observe itself. As a person, i.e., as the origin of will, on the other hand, we cannot observe ourselves. As persons, we are always already ahead of any observation. It is not only necessary to know what personal identity is, we must also clear up why personhood is supposed to be so important that we can say it has absolute value. Personhood has absolute value because the awareness of being the author of our own will gives us the consciousness of being the ultimate point of reference for any evaluation—that is, to be an entity whose value is beyond any other value because it is the source of all other values. We can and must ascribe an absolute value to ourselves as persons, because as persons we are the source of all (relative) values. This is the basis of any true sense of self-worth. If we did not assign an absolute value to ourselves, everything else would lose all (relative) value for us. As long as anything in life is important to us, we must inevitably give ourselves absolute importance.
Personhood as Absolute Value
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Value of Humans
One can understand the absolute value of personhood with the following: if personhood only had relative value, then there is a conceivable situation where any x would be more valuable for a person than their own personhood. If x is more valuable than one’s personhood, it would be reasonable in the event of such a conflict to renounce personhood in order to attain x. But giving up personhood means giving up the ability to manifest one’s own will. Nevertheless, without the ability to produce one’s own will, everything including x loses its value, for values are the result of our will-making. Without the capacity to produce one’s own will, nothing can have any value. Personhood is a prerequisite for the possibility of any evaluation and, therefore, a required condition of the possibility of any and all value. At this stage of the lesson, we can conclude that there are three different categories of value that can be distinguished through their different value standards, that dignity is one of these categories, and that it is defined by the value standard of personal identity. Now we come to the evaluation of human beings. What is the value of a human being? As such or by nature, human beings as living entities are simply facts—and facts, by nature, have no value. For values are not part of the world inventory. They exist only as the result of subjective acts of evaluation. It is up to us whether we assign a certain value to human beings. Like every other object, human beings can also be assigned an extrinsic value (market price). We always do as much when we hire a worker, elect a politician, or listen to a lecturer. The worker has a market price for the employer. He is interested in the work of the worker and the worker, or the lecturer, can be replaced by another, better worker/ lecturer, or even a robot. The market price of a worker is expressed in his wage; the market price of a lecturer can be expressed by his amount of royalties or academic awards. Like every other object, human beings can also be assigned an intrinsic value (fancy price). We always do as much when we regard someone as our friend or when we love our children. In such cases, our friend or our children have a value as such for us. Nevertheless, the rank of this value can only be identified in the frame of a preference order. Indeed, some may be willing to neglect their children in order to improve their career or rescue their stamp collection.
93 5.3 · Personhood as the Value Standard of Dignity
But what is about dignity? It is not possible to assign dignity to every object. Only those objects that are endowed with personhood, or at least with the potential for personhood, may be considered as possible candidates for assigning dignity. At this step, we can thus recognize that it is not possible to assign dignity to mere material things or animals and plants or even to mankind, groups of human beings, societies, states, the idealistic idea of a “true” human being, and so on. Furthermore, it is not possible to assign dignity to every human individual—i.e., to every specimen of the human species. For not every specimen of the human species has, at the very least, the potential to develop personal identity. Possible objects for assigning dignity can only be human individuals that are capable of developing their own free will. We call such individuals “persons.” Nevertheless, by definition, persons do not necessarily need to be human. It is theoretically possible that there are non-human persons. The only possible objects that we may assign dignity to are persons, regardless of whether they are humans. Still, as of now, we do not know of any other species except for the human species that can emerge as persons. This is why in most contexts it does not make any practical difference whether we talk about human dignity or personal dignity. But if we want to talk correctly, we must assert that there is no dignity of the human being but only dignity of the human person. If we consider human beings as things that have extrinsic or intrinsic values, we have to recognize that it is not possible to assign these kinds of values to every human being—or, at least, to every human person—at the same time. There are always only some human beings that we consider as having extrinsic or intrinsic value for us. We are not interested in hiring all mankind as workers and we do not love every person in the world as we love our own children. On the contrary, the idea of human dignity can serve as the foundation of human rights only if it is possible to assign dignity to every human person in the world regardless of whether we know them or whether we have a relationship with them and regardless of the quality of a given relationship. Only under this condition is it possible to establish human rights as general rights—i.e., as rights of every human person. But how is it possible to assign dignity to every human person in the world?
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5.4
5
Generalization
“ Me-Dignity” and General Human Dignity
I want to start with the most familiar person I know. That is myself. I am aware of myself as the author of my will and I appreciate this authenticity in the absolute sense because it allows me to understand myself as someone and not only as something. Consequently, I know that there is at least one human being to whom I can assign dignity, which is myself. I hope you can do the same for yourself. But if I am talking about my dignity and if you are talking about your dignity, we are not talking about human dignity but only about what I call “me-dignity.” The sum of “me-dignity” does not make for general human dignity. I can only talk about human dignity if I can assign dignity not only to myself, but also to every other human person. I can assign dignity to every other person only if two conditions are met: 1. I must understand other persons as authors of their own will. This condition is not problematic. We have always assumed that other people are also persons. Otherwise, forms of communication such as thanking and reprimanding would make no sense. 2. I must regard the personhood of others as absolutely valuable, just like I regard my own personhood as absolutely valuable. The reason why I regard my own authenticity as absolute is because it is a required condition for the possibility of my being aware of myself as someone and not just as something. Therefore, I can regard the authenticity of others as absolute valuable only if the authenticity of others is the same way and with the same influence a required condition of my selfawareness of being someone and not just something. At this point, the philosophical argumentation about the concept of human dignity has come to an end. From a pure philosophical standpoint, there is nothing more to say. The concept of human dignity has been linguistically and philosophically analyzed. Let us summarize the results. The concept of human dignity refers to an absolute value judgment. The only thing that can and must be considered absolutely valuable is personal authenticity (personhood). The philosophical analysis shows that it is not possible to consider one’s own personhood anything but absolutely valuable. The philo-
95 5.4 · “Me-Dignity” and General Human Dignity
sophical evidence for this is a transcendental argument. The absolute value of one’s own personhood is the condition of the possibility of any evaluation, whatever kind. Philosophy can also teach us that the personal authenticity of others can only be an absolute value for me if the personal authenticity of others is exactly the same way as my own personal authenticity the basis of my self- awareness as someone and not just as something. Unfortunately, however, it is not possible to set out transcendental arguments for the fact that our self-recognition as persons depends on the recognition of other persons as persons. Therefore, there can only be one way to deliver the required evidence. And this is the empirical way. We need empirical arguments in order to show that the personal identity of others is the needed prerequisite for our self-awareness as someone and, consequently, for our own sense of personal identity. Again, this is not a philosophical question anymore, but an empirical one. So, if I want to demonstrate the idea of human dignity as the adequate foundation of human rights, I need to set up an empirical thesis and I need to provide empirical evidence to support this thesis. The appropriate empirical thesis that is sufficient and Equiprimordiality adequate in order to justify the generality of human dignity is the following:
»» My authenticity and the authenticity of others are equiprimordial.
Equiprimordiality means that the existence of two entities depends on each other because the first entity can only exist if the second entity exists and the second entity can only exist if the first one exists. Both of them are required conditions for the possibility of each other. Either both of them exist or neither of them do. So, both of them can be considered as two sides of the same coin. If this thesis is true, it then follows that it is not possible to regard my personhood as absolute if I do not also regard the personhood of others as absolute. And the other way round: if I do not regard the personhood of others as absolute then I cannot regard my own personhood as absolute. I hope that you understand the importance of this thesis. The relevance of the idea of human dignity as a sufficient principle for the foundation of human rights depends on whether this thesis is true or false. It is interesting to note that the equiprimordiality thesis is not really new. Rather, it is deeply rooted in the tradi-
Fichte/Hegel
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Empircism and Philosophy
tion of philosophy, in particular in the philosophy of the so-called German Idealism of the nineteenth century. Historically, the first philosopher who defended a kind of equiprimordiality thesis was Johann Gottlieb Fichte, who developed this idea in the context of a foundation for the concept of law and legal relationship. Much more famous but also much more unclear and very difficult to understand is the chapter “Master and Slave” in Georg Friedrich Hegel’s book Phenomenology of Spirit. Both philosophers thought they would develop a pure philosophical argument. Nevertheless, they were wrong insofar as the equiprimordiality thesis does not refer to a pure analysis of a concept. It does not deal with language but with particular phenomena in the real world. Fichte and Hegel claimed an empirical argument without any empirical evidence. The argument was nevertheless very convincing for many intellectuals because it met a deeply rooted intuition. Intuitions, however, are not proofs and therefore we cannot avoid searching for empirical evidence. Still, Fichte and Hegel were not completely wrong. We will see that empirical evidence must be contemplated through philosophical considerations. But this is the second step of the argumentation. First, we have to look for empirical evidence. Many philosophers begin to severely suffer if their theories depend on empirical evidence. They share the opinion that philosophical insights are always absolutely certain while empirical knowledge is always subject to the risk of error. Therefore, they think that philosophical results must always be independent from empirical evidence. I do not think that philosophical insights are always absolutely certain. I believe that philosophy is also a matter of error. But it is true that philosophy is not an empirical science. The analysis of language does not expose the facts of the world but only the structure of our thinking. Therefore, the scope of philosophical insights is very limited. Philosophy never leads to an insight about the reality of the world outside of our own thoughts about the world. Philosophy can therefore only prepare the empirical research. Comparatively, empirical sciences depend on an adequate formulation of their own problems and questions. Philosophy can help identify adequate formulations but it cannot help to answer the questions of the empirical sciences. The question of the meaning of the concept of human dignity is a philosophical question. But whether our self-
97 5.5 · The Risk of Empirical Error
awareness as someone and not only as something depends on recognizing and appreciating the personal identity of others is an empirical question. In the next chapter, I will present some empirical evidence that to me seems sufficient to prove the equiprimordiality thesis. At the end of this chapter, I want to discuss another question. What should we do if the empirical evidence for the equiprimordiality thesis should fail?
5.5
The Risk of Empirical Error
With regard to this case, some legal philosophers think that they must interpret the concept of human dignity in another way. They think that they do not have any alternative because the human dignity principle was established in international law and, as jurists, they have to respect the legal text. There are some other interpretations. One of them is to simply consider the concept of human dignity as a collective name for the sum of all human rights. This solution is obviously a stopgap which is not very convincing. The concept “human rights” is already a collective that embraces all the particular human rights. It is a meaningless duplication to introduce one collective (human dignity) to cover another (human rights). Other philosophers claim that the human dignity principle would be a particular human right of its own. This is also not very convincing simply because international law deals with human dignity as a principle from which human rights can be derived rather than as a human right among others. If our research for empirical evidence in favor of the equiprimordiality thesis should fail, we should be so honest as to confess that there is nothing in reality that underlies the concept of human dignity. In such a case, the concept of human dignity is an empty concept that is an inadequate foundation for human rights. The fact that a concept is empty—i.e., that there is nothing in reality that underlies the concept—does not allow for a change in the meaning of the concept. This can be shown by the example of a unicorn. This concept is defined by the elements of being an animal that looks similar to a white horse but with a spiraling horn on his forehead, which can only be seen and captured by a virgin. According to the prevailing opinion, unicorns are mythological creatures and do not exist in reality. Nevertheless, this does not give us the right
Alternative Interpretation
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to change the meaning of the concept “unicorn.” If we change the meaning of the word “unicorn,” we would lose the opportunity to say that unicorns do not exist. This shows that the meaning of a concept and whether there is something in reality that meets the concept are different questions and the latter may not influence the former. The same thing also occurs with the concept of human dignity. If our empirical claim of the equiprimordiality thesis is proven to not be true because empirical research can show that either I can develop personhood and an estimating relationship to my personhood without being recognized as a person by others or that I can maintain my own personhood even if I disregard and ignore the personhood of others, then we would must conclude that it is not possible to issue an absolute value judgment of the personhood of others and that therefore nobody can regard the personhood of others as absolute valuable. In such a case, we would say that human dignity does not really exists. Instead, human dignity would be a mirage, a fata morgana, a pure ideology that is not suitable to deliver a foundation for human rights. Thus, we see that the justification of human rights through the principle of human dignity stands or falls with the truth of the equiprimordiality thesis. This will be the subject of the next lesson. ? Do You Still Remember? 1. The word “dignity” refers to a certain category of values. Which categories of values can be distinguished? Explain the differences in a few words. 2. What is meant by personal identity? 3. Why can personal identity be considered as something with absolute value? 4. Explain the equiprimordiality thesis in a few words.
For the answers, see Chap. 7 21.
Reading Recommendations Austin, John L.: How to do things with Words. Oxford: OUP 1962 Brugger, Winfried/Kirste, Stephan (ed.): Human Dignity as a Foundation of Law. ARSP-Beiheft 137 Stuttgart: Franz Steiner Verlag 2013 Fichte, Johann Gottlieb: Grundlage des Naturrechts nach Principien der Wissenschaftslehre, 1796, 1st chapter. English: Foundation of Natural Rights, Cambridge: CUP 2000, Chapter 1, http://assets. cambridge.org/97805215/73016/sample/9780521573016ws.pdf.
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Forschner, Maximilian: Marktpreis und Würde oder vom Adel der menschlichen Natur. In: Henning Kössler (ed.), Die Würde des Menschen, Erlangen: Universitätsbibliothek 1997 Hegel, Georg Friedrich: Phänomenologie des Geistes. English: Phenomenology of Spirit, English/German by Terry Pinkard 2010, Chapter “Mastery and Servitude”, https://www.marxists.org/reference/ archive/hegel/works/ph/pinkard-t ranslation-o f-p henomenology. pdf Kant, Immanuel: Grundlegung zur Metaphysik der Sitten. Riga 1786. English: Foundations of the Metaphysics of Morals, translated by Thomas Kingsmill Abbott – http://www.gutenberg.org/dirs/ etext04/ikfpm10.txt Mackie, John Leslie: Ethics. Inventing Right and Wrong. Harmondsworth: Penguin Books 1977 McNaughton, David: Moral Vision. An Introduction to Ethics. Oxford: Blackwell 10th ed. 2001 Putnam, Hilary: Werte und Normen. In Wingert/Günther (ed.): Die Öffentlichkeit der Vernunft und die Vernunft der Öffentlichkeit. Festschrift für Jürgen Habermas Frankfurt/M: Suhrkamp 2001 Tiedemann, Paul: Human Dignity as an absolute Value. In Winfried Brugger/Stephan Kirste (ed.), Human Dignity as a Foundation of Law. ARSP_Beiheft 137 Stuttgart: Franz Steiner Verlag 2013 Urmson J.O.: On Grading. In Urmson, A. Flew, Logic and Language 2.nd series, Oxford 1953 pp. 159–186) Von Wright, Georg Henrik: Neue Überlegungen zur Präferenzlogik. In v. Wright: Normen, Werte und Handlungen. Frankfurt/M: Suhrkamp 1994
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The Human Dignity Principle II Contents 6.1
The Equiprimordiality Thesis – 104
6.2
ependence on Passive D Recognition of Personhood – 105
6.3
ependence on Active D Recognition of Personhood – 110
6.4
erification or Failing of V Falsification? – 116
6.5
he Generality of the T Equiprimordiality Thesis – 116
6.6
uman Dignity in Cases H of Doubt – 119 Reading Recommendations – 121
© Springer Nature Switzerland AG 2023 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-031-32292-1_6
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Analysis of the Concept “Human Dignity” The analysis of the concept “human dignity” consists of two parts. Part I concerns the philosophical analysis, i.e., the definition of the term. Part II concerns the empirical analysis, i.e., the question whether the concept “human dignity” refers to reality. If there is a reference to reality, the concept is empirically saturated and therefore sufficiently qualified as the foundation of human rights. Otherwise, the concept is empty and under no circumstances qualified as a foundation of human rights.
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The Generality of Human Dignity The generality of human dignity requires that every person must evaluate not only their own personhood as absolute but also the personhood of every other person. The personhood of another person only has absolute value for me if my own personal authenticity depends on the personal authenticity of others. This is true only if the equiprimordiality thesis is true.
The Equiprimordiality Thesis The personhood of any person and the personhood of any other person are equiprimordial. This is an empirical hypothesis that must be confirmed or refuted by empirical evidence.
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Empirical Evidence 1. If the equiprimordiality thesis is true, then the development of A’s personhood must depend on B’s recognition of A as a person. If this is the case, then the non-recognition of A’s personhood by B must with high probability lead to a serious disorder of A’s personal identity. Evidence: Borderline Personality Disorder (BPD) 2. If the equiprimordiality thesis is true, A must be able to simultaneously recognize themself and other persons as persons. Otherwise, A would not be able to understand the recognition of themself by another. (Things that are purely things do not have a concept of recognition.) Indeed, human babies are able to recognize other persons as persons. They inherently possess a sense of personhood. Evidence: Empirical Baby Research and the results of Developmental Psychology 3. If the equiprimordiality thesis is true, person A must lose their relationship to their own personhood if A is not recognized as a person by others, whether in the initial developmental phase of childhood or at some point during their life. Indeed, it is possible to alienate a person A from their own personhood through torture, rape, or the deprivation of all self- control. Evidence: Post-Traumatic Stress Disorder 4. If the equiprimordiality thesis is true, person A must with high probability experience alienation from their own personhood if they do not respect the personhood of others. Indeed, persons who cease to respect the personhood of others may lose their relationship to their own personhood Evidence: (a) The feeling of shame that tends toward suicide; (b) the feeling of guilt that makes persons able to survive while at the same time producing intense pain for them; (c) serious neuroses which occur when persons try to avoid the feelings of shame or guilt. Tillich: “Neurosis is a method to avoid non-being by avoiding being.”
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The Limited Range of Empirical Evidence Empirical research only focuses on the more or less close relationships between persons. It seems to only show that one’s own personal identity depends on mutual recognition within a limited reference group (baby and its caregivers, adult person and those who encounter them.). So, it does not seem to be proven that the personal identity of a particular person depends on the mutual recognition of all persons all over the world. This would lead to the result that there is only something like a “Group-Dignity” in a communitarian sense, but not human dignity as a general value. It can be shown by the means of philosophy (thought experiment “dignity certificate”) that this presumption is meaningless. It is not possible to assign absolute value to only some persons while denying the same assignation to any other person.
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6.1
Summary
The Equiprimordiality Thesis
In the last chapter, I tried to analyze the meaning of the concept of human dignity. The result was the following: Human dignity is the name or the abbreviation or the short form of a value judgment concerning the human individual. This value judgment is understood as a statement of its defendants—whoever this might be—according to which personhood is estimated as an absolute value. Absoluteness means that the value does not depend on the rank in a preference order or on the function as a means of exchange. The only entity that can be considered absolutely valuable is personhood (personal identity, authenticity). Personhood is the ability to evaluate. The ability to evaluate is the condition of the possibility that anything can have a (relative) value at all. It is relatively easy to show that, for me, my own personhood has an absolute value because it is the required condition for awareness of myself as the author of my will—awareness of myself as someone and not just as something. Nevertheless, the absolute evaluation of my own personhood does not meet the concept of human dignity because this term refers not only to my personhood (me-dignity) but also to the personhood of every person
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(generalization). If the human dignity-judgment is at all possible, it must be shown that the personhood of all others has exactly the same importance to me as my own personhood. In other words, to me the personhood of others has absolute value just as my own. This is only conceivable if my own personhood and the personhood of others are equiprimordial—if they are both sides of the same coin. The necessity of the equiprimordiality thesis for the generality of human dignity can be explained through philosophical analysis. But the means of philosophy do not demonstrate that my own personhood and the personhood of others are actually equiprimordial. Because this question does not refer to the meaning of words and the analysis of ideas, but to a reality outside of our language. Philosophical analysis only shows the meaning of the concept human dignity without showing that there is something in reality that actually meets the concept. Knowledge about the reality outside of our language is only available through empirical research. The philosophical analysis presents the equiprimordiality thesis as the required condition for the reality of the human dignity conception. Thus, it is important to show through empirical research that the equiprimordiality thesis is true. For that purpose, we must empirically prove that there is a mutual interdependency between self-awareness and self-esteem as persons and awareness and appreciation of other persons as persons.
6.2
ependence on Passive Recognition D of Personhood
The equiprimordiality thesis is confirmed if there is a mutual interdependency in the recognition of the personhood of person A by others and the recognition of the personhood of others by A. This can be proven by determining what happens with the personhood of A if it is not recognized by the others around A. Indeed, it can be shown that person A suffers from a serious deficiency of personhood when there is a lack of recognition of A’s personhood by the others around A. This is evident by the symptoms of serious psychological diseases. For example, if the potential personhood of a baby or a little child is not recognized by its caregivers, the child may develop a
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Borderline Personality Disorder (BPD—ICD-10-WHO: F60.31). 1 This term refers to a personality disorder, where, in essence, a person has not developed the ability to live her life authentically—that is, she lives as something instead of as someone. BPD presents different symptoms including: 55 Out-of-control emotions 55 Unstable interpersonal relationships and self-esteem 55 Fear of abandonment 55 Self-damaging behavior 55 Impulsivity 55 Thoughts and sensitivity to rejection 55 Unusually intense sensitivity in relationships with others 55 Difficulty regulating emotions 55 Unsure feeling of one’s personal identity and values 55 Paranoid thoughts when feeling stressed 55 Severe dissociation (a particular detachment from reality; negative or dysfunctional mental constructions of phantasy in order to avoid fear and anxiety.) People with BPD are often exceptionally idealistic, joyful, and loving. Nevertheless, they may feel overwhelmed by negative emotions, experiencing intense grief instead of sadness, shame, and humiliation instead of mild embarrassment, rage instead of annoyance, and panic instead of nervousness. People with BPD are especially sensitive to feelings of self-negation, rejection, isolation, and perceived failure. Their efforts to manage or escape from their intense negative emotions may lead to self-injury or suicidal behavior. In addition to intense emotions, people with BPD experience emotional volatility, rapid changes between depression and elation; their mood frequently swings between anger and anxiety or depression and anxiety. Impulsive behavior is common, including substance or alcohol abuse, eating disorders, unprotected sex or indiscriminate sex with multiple partners, reckless spending, and reckless driving. Impulsive behavior may also include leaving jobs or relationships, running away, and self-injury.
1 ICD-10-WHO is the tenth revision of the International Statistical Classification of Diseases and Related Health Problems, a medical classification list published by the World Health Organization – see 7 https://www.who.int/classifications/icd/en/.
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People with BPD tend to have trouble seeing a clear picture of their identity. They particularly tend to experience difficulty knowing what they value, believe, prefer, or enjoy. They are often unsure about their long-term goals for relationships and jobs. This difficulty with knowing who they are and what they value can cause people with BPD to experience feelings of emptiness and desolateness. What are the causes of BPD? According to present scientific trends, some researchers share the opinion that certain brain abnormalities cause BPD. Nevertheless, it seems possible to empirically show that the diagnosed brain abnormalities very often are not the result of biological coincidence and that they may be caused by depriving an individual of recognition and appreciation as a person in the stages of early childhood. Statistical research shows that 70% of people who suffer from BPD were sexually abused in their early childhood. 50% experienced physical violence. Further, 80% of the adults with BPD report instances of emotional neglect in their childhood. BPD may not necessarily be caused by abuse or maltreatment. It can also be caused by the early experience of abandonment or significant trouble, chaos, and hostility in the family or by the experience of a parenting style that is characterized as rigid loveless control or an overly tight bond that leaves no room for independent development of personality. According to the so-called psychologically-based Attachment Theory, individuals very often experience BPD symptoms if they received less attention or sensitive care, if their needs and feelings were ignored, and/or if they could not rely on their caregivers. In other words, people tend to suffer from BPD if they were not recognized and appreciated as persons that must learn to lead their lives on the basis of their own considerations and reflections—as someone and not just as something. What we have shown so far is that the development of personhood during the early stages of childhood depends on the recognition and appreciation of the child’s (potential) personhood by other persons. Nevertheless, such evidence is not sufficient for the verification of the equiprimordiality thesis. For it could be possible that the process of developing personhood initially depends on recognition by others, but that we become independent of it when our personhood has developed. The Borderline Disorder argument does not exclude the possibility that personhood—once developed—is a capacity that we can
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maintain without the support of others. If this is true than the value of personhood of others would only be absolute during the time of our own psycho-social development in early childhood, and it would cease to be absolute once the psycho-social development of personal identity has finished. The value of personhood of others only remains absolute if throughout our lifetime we continue to depend on the recognition and appreciation of personhood by others. In order to show this dependence, we need other empirical findings. But again, the results of psychological research can deliver these findings. Accordingly, we must look at what happens when someone who has already developed personal identity and is already able to manifest their own free will based on their own considerations and reflections is treated as a mere object or thing by their fellow humans. Psychiatric traumatology teaches us what happens in such a situation. It leads to another very specific disorder that is called Post-Traumatic Stress Disorder. This term refers to a personality disorder where, in essence, a person has lost the ability to live their life authentically—as someone and not just as something. Post-Traumatic Stress Disorder (PTSD—ICD-10 WHO: F43.1) is a mental health condition that is triggered by a terrifying event such as sexual assault, warfare, serious injury, or threats of imminent death. PTSD symptoms are generally grouped into four types: intrusive memories, avoidance, negative changes in thinking and mood, and changes in emotional reactions. Symptoms of intrusive memories may include: 55 Recurrent, unwanted distressing memories of a traumatic event 55 Reliving the traumatic event as if it were happening again (flashbacks) 55 Upsetting dreams about the traumatic event (nightmares) 55 Severe emotional distress or physical reactions to something that reminds the person of the traumatic event Symptoms of avoidance may include: 55 Trying to avoid thinking or talking about the traumatic event 55 Avoiding places, activities or people that remind you of the traumatic event
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Symptoms of negative changes in thinking and mood may include: 55 Negative feelings about oneself or other people 55 Inability to experience positive emotions 55 Feeling emotionally numb 55 Lack of interest in activities once enjoyed 55 Hopelessness about the future 55 Memory problems, including not remembering important aspects of the traumatic event 55 Difficulty maintaining close relationships Symptoms of changes in emotional reactions (also called arousal symptoms) may include: 55 Irritability, angry outbursts, or aggressive behavior 55 Always being on guard for danger 55 Overwhelming guilt or shame 55 Self-destructive behavior, such as drinking too much or driving too fast 55 Trouble concentrating 55 Trouble sleeping 55 Being easily startled or frightened 55 Suicidal thoughts It is interesting to note that many of these symptoms are very similar to those of BPD. That, in turn, shows that the capacity of personhood can be lost. Personhood is a fragile possession. As I mentioned above, PTSD is caused by the experi- Causes of PTSD ence of severe psycho-traumata. Psycho-Traumata are defined as situations where a person loses any kind of self- control. Riedesser & Fischer define psycho-trauma as the violation of the personal ability of self-determination and of the room for development of a personality. Such a violation occurs in situations where an individual is exposed to an overwhelming power that does not allow reasonable reaction and makes the individual completely unable to act. This is, for example, a situation in which a person is raped. Other situations include those where soldiers are under fire or where someone is tortured. In other words, PTSD occurs as a result of situations where human individuals are not recognized and appreciated as persons that can lead their own lives on the basis of their own considerations and reflections. PTSD occurs as the result of situations where someone is no longer recognized as someone, but as something. PTSD can occur not only as a result of disregard and disrespect, but also as a result of a horrible
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Resilience
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natural disaster or an accident, where someone experiences a complete loss of control or influence. Nevertheless, for our purpose it is enough to show that even disregard or disrespect of someone’s personhood can lead to PTSD. Furthermore, there is sufficient evidence indicating that it is much more difficult to heal someone suffering from PTSD caused by other human beings as opposed to cases involving natural causes or accidents. It may be useful to point out that not every soldier who was under fire and not every person who was raped subsequently suffers from PTSD. Many people who go through traumatic events have difficulty adjusting and coping for a time without developing PTSD. With time and good self- care, they usually get better. Those people have the capacity of resilience. The scope of an individual’s resilience depends on their life experiences before the traumatic event. Not every traumatic event leads to PTSD in every person. But every person will suffer from PTSD if the level of the traumatic event is severe enough. It is possible that an individual who suffered severe torture nevertheless does not subsequently suffer from PTSD. But a torturer can bring every person to this state if they increase the torture sufficiently. So, we can learn from the empirical phenomenon of the PTSD that persons can lose their personhood such that they are no longer someone, but something. This shows that we depend on the recognition and appreciation as persons by other persons not only during the stages of early childhood but also throughout our lifetime.
6.3
Proto-persons
ependence on Active Recognition D of Personhood
The equiprimordiality thesis claims that personhood is based on mutual recognition and appreciation. Mutuality means that we cannot develop or maintain our own personhood when we do not recognize the personhood of others. But what about a baby? Is a baby able to recognize the personhood of its caregivers? A baby or a small child is not able to determine its behavior on the basis of an own free will, i.e., on the basis of their own reflections and considerations. Therefore, we cannot say that babies or small children are persons in the meaning of the term “person” that I have developed above. But how is it possible to rec-
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ognize the personhood of others without first being a person? I think it is not possible to recognize the personhood of others without being a person because only persons can know what is meant by personhood and it is necessary to know what personhood is in order to recognize personhood in another person. That seems to preclude the ability of babies to recognize their caregivers as persons. Nevertheless, we know from the phenomenon of BPD that it is crucial to be recognized as a person in the early stages of life, otherwise a child may never develop the capacity of personhood. But can we imagine that the recognition as person by caregivers can have any effect for the baby if the baby cannot understand this recognition as the recognition as person? I think it is not possible to understand being recognized as a person by other persons if one does not have any understanding of what is meant by personhood. Therefore dogs, horses, and cars cannot develop personhood even if they are recognized as persons. But the baby can. How is this possible? Let us consider the problem from the point of view of the caregivers. How should they be able to recognize the personhood of the baby when the baby has yet to develop personhood? Recognition can only have as its object some aspect of reality. It is not possible to recognize something that does not exist. If there is no such thing as the personhood of the baby, then caregivers could not recognize it. This suggests that treating a baby as a person is not really an act of recognition and appreciation, but rather an act of producing the personhood of the child. If it is considered an act of producing and not an act of recognition, we cannot talk about a relationship of mutual recognition in the stages of early childhood. So, there is not only a problem from the perspective of the baby, but also from the perspective of the caregivers. Empirical research comes into the play at this point. According to developmental psychology and empirical baby research, we have empirical evidence for the fact that babies naturally possess a sense for personhood. Like a radar, they scan the world to detect personhood and they fix their attention upon those objects in their environment in which they recognize personhood. Thus, although babies do not have the capacity of an intellectual understanding of personhood, they are naturally endowed with the capacity to feel and to identify personhood wherever
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they meet it. This is why we can state that babies can recognize and appreciate the personhood of others. According to empirical baby research, it is not adequate to consider a human baby a living entity without personhood. We must instead state that babies are considered proto-persons. They are not able to produce their own will, but they are already capable of recognizing the personhood of others and identifying these others as a source from which they can learn to become persons themselves. From this fact follows that treating a baby as a person is not simply an act of producing the personhood of the baby, but rather an act of support through real, interpersonal communication. It is thus an act of recognition. So, we see that there is a real mutual recognition and appreciation of personhood between a baby and its caregivers. Not only do babies receive recognition of their personhood by their caregiver, but caregivers also receive recognition of their personhood by babies. This is why the caregivers of babies ordinarily do not have a problem treating the babies as persons by speaking to them, laughing with them, or generally communicating with them as persons. Caregivers can of course deny recognizing babies as persons. But by doing so, they in turn block the possibility of being recognized as persons by the babies. This raises the question of what consequences it has for a person if he decides not to recognize the personhood of his fellow human beings, be they babies or adults. It can be shown that the refusal to recognize the personhood of others leads to the loss of the ability to identify with one’s own personhood. The result is an existential form of self-alienation, which is associated with an enormous amount of suffering. We can distinguish three different varieties of suffering that all have the same origin. They are feelings of shame, feelings of guilt and variants of repression in the form of neuroses. Let’s start with the feeling of shame. Shame is the feeling of fundamental loss of self-esteem. The individual who feels shame despises and condemns himself. Nevertheless, shame is a social feeling. It is always related to other persons. It is not necessary that the other person is a real person or that real persons have real knowledge about why the respective individual feels shame. The individual who feels shame imagines the others. Psychoanalysis speaks of this phenomenon in terms of the Imagined Other. So, the individual who feels shame takes the position of the Imagined Others and, from this point of view,
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delivers a value judgment about himself. According to this value judgment, the individual feels himself as having no worth and as someone who is to be despised. The feeling of shame is always connected with a huge fear of being excluded from the community and the thought that it would indeed be reasonable and appropriate to be excluded from the community because of the respective person’s self-perceived lack of value. So, the feeling of shame necessarily implicates the recognition and respect of other persons—otherwise, one could not be ashamed in front of them. The feeling of shame disclaims the decision of a person to treat others as non-persons and shows that, for that person, recognizing and respecting others as persons is unavoidable. The feeling of shame is so fundamental that the respective individual is incapable to identify himself with his own personhood. He loses trust in his own ability to produce a free will and to act on the basis of his own considerations and reflections. Someone who feels deep shame wants to literally disappear. He wishes the ground would open and swallow him up. He feels completely unable to act. He figuratively turns to stone or becomes petrified or freezes to ice. The ultimate consequence of a deep feeling of shame is suicide because this is the only way to completely disappear. Indeed, sometimes we hear about cases where a criminal committed suicide because he was so overwhelmed with shame that he could not bear to live anymore. But committing suicide is not the rule. Most people who feel shame develop a strategy that makes them capable of avoiding suicide and continue with their lives. The most appropriate strategy is the transformation of the feeling of shame into the feeling of guilt. I think all of us know the feeling of shame, but obviously we did not commit suicide. We were able to continue living because we were able to transform our feelings of shame into feelings of guilt. When analyzing the feeling of guilt, we can identify three elements. 1. The first element of guilt is repentance. There is a certain similarity between shame and repentance. Repentance, like shame, is the result of a negative value judgment about oneself. Contrary to shame, this judgment does not refer to the entire being of oneself. It only refers to one’s own bad actions. With feelings of repentance, the individual is capable of distinguishing between himself and the actions he has done. The feel-
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ing of repentance allows for the condemnation of actions while the person herself is rescued from condemnation and contempt. This allows the individual to remain capable of acting so that he may work towards a reconciliation with himself. 2. The second element of the feeling of guilt is confession and the wish to compensate. This second element is a feeling of desire—namely, the desire to become worthy of reconciliation. This feeling, like shame, is a social feeling. It is not possible to reconcile with one’s own actions without reconciliation with those who were harmed through the bad actions. The desire to become worthy of reconciliation therefore leads to the drive to confess in front of the victim and to compensate for the damage done to the victim. The confession is the request to not be identified with the bad actions that the agent committed. It is connected to the request to again trust that the agent is a reliable and good person, not an evil one. 3. The third element of the feeling of guilt is the request for forgiveness. If the respective person does feel as though she has reached a status of being worthy of reconciliation, she will ask for forgiveness.
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Neuroses
As we have seen, the feelings of shame and guilt are social feelings. They implicate the recognition and the respect of other persons as persons. Either the person in question commits suicide because she is unable to overcome the feeling of shame, or the person feels guilt. In both cases the person understands that ignoring the personhood of others is incompatible with her own personal identity. Perhaps you will object to this argumentation by showing that many people ignore and disregard the personhood of others but do not show any symptom or manifestation of shame or guilt. Sometimes they even seem to be proud of their crimes. Their understanding of themselves seems to be unbroken. They lead their lives as if nothing had happened. This seemingly suggests that the equiprimordiality thesis is wrong. Nevertheless, we must consider that the transformation of the feeling of shame into the feeling of guilt is not the only strategy to avoid suicide. There are several other strategies. All of these alternatives are a kind of psychical displacement. The feeling of shame is displaced by any other feeling like anxiety, rage, aggression, depression, phobia, or by obsessive behavior patterns like excessive
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pedantry, excessive hand washing, etc. None of these feelings or behaviors are adequate. Therefore, they produce difficulties and trouble for the respective agent or for the individuals who are related to them. The psychoanalyst Sigmund Freud coined the concept of neuroses to describe these different strategies. Such unconscious displacements have the advantage that the person concerned is not forced to suffer from shame and guilt. Nevertheless, displacement inevitably leads to other forms of suffering. It is possible that the strange behavior of a person brings her into conflict with her fellow humans and that she therefore suffers from this conflict. Nevertheless, it is also possible that the person does not really suffer herself but that she causes others to suffer through her tyranny or unreliable behavior, etc. The deeper problem of neuroses is that the connection between the symptoms and the causes is unconscious while in the case of shame and guilt the connection is conscious. The latent aspect of the causes of neuroses makes it much more difficult to free oneself from neurotic suffering. In any case, the benefits of the neurotic alternatives to shame and guilt are most impressively expressed by the saying of Paul Tillich: “Neurosis is the method of avoiding non- being by avoiding being”. The extent to which contempt for humanity can destroy one’s own personal identity was impressively illustrated by Hannah Arendt in her report on the Eichmann trial in Jerusalem. She reports a statement by Eichmann according to which, while he oversaw the transport of European Jews to the extermination camps, he had been completely indifferent to death - not only to the death of his victims, but also to his own death (Arendt p. 106). Arendt considers this statement credible and tells two stories from other sources to confirm it. In the summer of 1944, a female SS leader gave a pep talk to Bavarian peasants. She spoke openly about a possible defeat, which, however, no good German needed to worry about, because the Führer “in his great goodness had prepared for the whole German people a mild death through gassing in case the war should have an unhappy end”. The peasants took note of it with equanimity. A similar statement was made by an ordinary woman in East Prussia who was fleeing from the Russian army in January 1945. She said: “The Russians will never get us. The Führer will never permit it. Much sooner he will gas us.” (Arendt pp. 110.)
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6.4
6 Critical Rationalism
Verification or Failing of Falsification?
The reference to shame, guilt, and neuroses confirms the suspicion that ignoring or disregarding the personhood of others is unlikely to be possible without producing unacceptable self-suffering and/or self-alienation. Nevertheless, this does not represent particularly strong evidence. A rigorous proof would need to show that it is objectively impossible to maintain one’s own personhood by disregarding the personhood of others. Empirical evidence can never provide such a complete proof. To perform such empirical evidence, one would have to search the entire world for a case where a person disregards and ignores the personhood of others while remaining healthy and free from suffering. Such a proof is hardly possible. We must recognize that empirical evidence never proves general hypotheses. Verification in that sense is not possible. Therefore, we should follow the idea of the so-called Critical Rationalism as it was developed by the Austrian/ British philosopher Karl Popper and the German philosopher Karl Albert. According to this approach, we are justified in accepting an empirical thesis as long as all attempts to falsify it have failed. In our case, we have several references that confirm the thesis, and we have no evidence that shows the thesis to be false. Therefore, it is rational to accept it. So, I come to the conclusion that the equiprimordiality thesis is empirically well confirmed and should be considered true.
6.5
he Generality of the Equiprimordiality T Thesis
Nevertheless, there is another objection to the claim that the principle of human dignity can be explained and clarified by the equiprimordiality thesis. We have only shown so far that persons depend on the mutual recognition and appreciation (respect) of other persons for the sake of maintaining their personhood. But it does not seem to be proven that persons depend on the recognition and appreciation of all other persons in the world. What seems to be proven so far is only a concept of human dignity that applies to myself and to the persons in my narrow environment. The concept might apply to the family or to the
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circle of friends or perhaps to the neighborhood. But it seems to not apply to every living entity or at least to every human being who is endowed with personhood. The idea of human dignity, nevertheless, can only function as an adequate foundation of human rights if it applies to every member of the human family or, at least, to every member of the human family who is endowed with reason and conscience and is therefore a person. However, a closer look shows that the equiprimordiality thesis is adequate enough to construct the principle of human dignity as a general principle that applies to every person in the world. At this step of the argumentation, we again turn to the field of philosophy. Here, we do no longer use empirical arguments but a pure transcendental argument instead. I want to demonstrate this argument in the shape of a thought experiment. Please imagine that you are in a position to decide to whom you want to ascribe human dignity or, in other words, whose personhood you want to regard as an absolute value (see . Fig. 6.1). Let’s say you are sitting behind a desk and in front of you is a huge queue which embraces the entirety of mankind. One by one appear before your desk and you decide whether or not to give them a certificate of personal recognition.
. Fig. 6.1 Dignity distribution desk (© Sophie Reinisch)
Dignity Certificate
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The first individual before your desk is your mother. Given the case that your mother was your primary caregiver in your childhood and that you therefore love her, you do not hesitate to give her the certificate. The next individual is someone you have never met before and that you will never again meet in the future. Whether he exists makes no difference to your personal life. Will you give him the certificate? Perhaps you think that it is more effective for you to withhold the certificate because giving the document would lead to the consequence that you are obliged to respect the human rights of this unknown and uninteresting individual. Why should you take on this burden? So, you withhold the certificate. The next individual before your desk is a very famous criminal, let us say a cruel terrorist who appeared on YouTube several times, killing innocent people by beheading them. Will you give him the certificate? Perhaps you think that such horrible humans should be considered monsters and not persons and therefore you do not hesitate to withhold the certificate of personhood. Now the question arises: is it possible to regard the personhood of your mother as an absolute while simultaneously denying the personhood of the unknown individual or of the criminal? Transcendental analysis shows that such a different treatment of your mother and the other persons is conceptually untenable. The mistake lies in the assumption that it is possible to decide to whom you want to ascribe dignity and to whom you will not. This is not possible because in order to make such a decision you need criteria to distinguish the two categories. These criteria have nothing to do with the fact that the individuals in front of your desk are persons or at least potential persons. Personhood is not the determinative criterion, something else is. This “something else” is necessarily and unavoidably something of relative value, e.g., your use, your interest, your love, your fear, or any other criterion of preference. The same criteria that guides your decision about your mother is relevant to the decisions about any other person. So, you recognize and respect the personhood of your mother only because she is the object of your love or because she is useful for you. In other words, the estimation of the personhood of your mother is no longer absolute, but relative. Put differently, if you only esteem one person in the world absolutely, you cannot avoid esteeming every other person in the world absolutely.
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6.6
Human Dignity in Cases of Doubt
Human dignity refers to the absolute value of personhood. The bearers of human dignity are therefore persons and—as we have seen above—proto-persons. Nevertheless, there are some cases where it is contested whether the respective individual can be considered a person. This is especially true for human embryos. Should human embryos be considered bearers of human dignity? Are they included in the human dignity judgment? Yes, I think they must be considered persons. Killing an embryo is always connected to the value judgment that the person who is going to emerge from the embryo is not worth of existing. Denying as much is based on intrinsic or extrinsic evaluations of an embryo’s capacity to develop personhood and therefore not in terms of the absolute value that is indicative of personhood. What about the case of individuals that suffer from dementia? Are they still persons or does the disease take away their personhood? Indeed, in the final stages of the disease we can hardly talk about a person because the disease completely eliminates an individual’s ability to determine oneself on the basis of their own considerations and reflections. But not every individual that suffers from dementia has lost their personhood. Personhood is a threshold value concept. There are no grades of personhood. Rather, someone either has personhood or they do not. In most cases, people with dementia are still considered persons. And what about an individual in a prolonged coma? Is he still a person? If we can expect the individual to wake up and continue to live his life as a person, he, like an embryo, must at the very least be considered a potential person. Many philosophers object to this concept of human dignity with the argument that it does not capture all human beings, but only those who can be considered persons. They fear that from this restriction follows that humans who are not persons (anymore or from the beginning of their life) can be treated in a way that we normally consider inhumane. That is to say, they conclude that according to this theory it is permissible to kill or torture human beings without personhood. They think, however, that even non-personal human beings should be protected against maltreatment.
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Human Being or Person?
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Freedom of Will Freedom of Actions
But these objections are not very convincing. First, just because only personhood can be considered an absolute value does not mean that non-personal human beings can be treated arbitrarily and that there are no moral standards toward them. For there is nothing to prevent us from ascribing intrinsic value to non-personal human beings as well. Secondly, these philosophers do not justify but already presuppose that non-personal humans may not be arbitrarily killed or tortured. Thus, this conviction obviously does not depend on a particular conception of human dignity but exists independently of it. They already know what is morally required and what is morally forbidden, without having to be instructed about it first by means of the concept of human dignity. There is no contradiction between the idea of personhood as an absolute value and the idea that even non-personal human beings may not be treated inhumanely. And of course, there is also no opposition concerning the moral conviction that even animals may not be treated cruelly. We cannot maintain the absolute appreciation of our own personhood without the absolute appreciation of the personhood of other persons. We cannot appreciate the personhood of any specific person as absolute without appreciating the personhood of every person as absolute. This shows the generalized character of the human dignity principle: either we have respect for the human dignity of every human person including ourselves, or we have no respect for the human dignity of anyone including ourselves. Absoluteness means that there is no justification to prevent someone from determining his own will by his own considerations and reflections. There is no justification of the disregard of one’s own free will. From this position, one cannot conclude an absolute respect for a person’s free actions. The point of respect of human dignity is, so to speak, not the freedom of action, but the freedom of will. When we address freedom of will, we talk about human dignity. When we address freedom of action, we talk about the fundamental constitutional value of liberty. There is a huge difference between liberty and human dignity because respect for liberty is relative while respect for human dignity must be absolute.
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? Do you Still Remember? 1. Empirical research was introduced in this lesson to confirm the thesis that human beings can develop and maintain the ability to lead their life on the basis of their own free will only if their personhood is recognized and appreciated by others. Please describe this empirical research using a few keywords. 2. The equiprimordiality thesis requires that even babies or very young children must be capable of recognizing and appreciating the personhood of others before they have developed their own personhood. Is there any evidence for this hypothesis? 3. Is there any evidence for the hypothesis that ignorance and disregard of the personhood of others leads to a weakening, undermining, or even a loss of personhood for the agent? Explain the argumentation in few words. 4. Through the thought experiment “Dignity Certificate,” it is possible to show that it is impossible to recognize and to appreciate the dignity of any one human person without recognizing and appreciating the dignity of every other human person. Explain this thought experiment.
For the answers, see 7 Chap. 21.
Reading Recommendations Ainsworth, M./Bowlby, J.: Child Care and the Growth of Love. London 1965 Albert, Hans: Treatise on critical reason. Princeton 1985 Arendt, Hannah: Eichmann in Jerusalem. A report on the banality of the evil. London 2006 Freud, Anna: The ego and the mechanisms of defense. London 1992 Margalit, Avishai: The descent society. Cambridge (UK) 1996 Mayo Celinic Staff: Post-Traumatic Stress Disorder (PTSD). n.d. http://www.m ayoclinic.o rg/diseases-c onditions/post-t raumatic- stress-disorder/basics/symptoms/con-20022540 NIH (ed.): Borderline Personality Disorder (BPD). n.d. http://www. nimh.nih.gov/health/topics/borderline-personality-disorder/index. shtml Popper, Karl: The logic of scientific discovery. London 2002. http:// strangebeautiful.com/other-texts/popper-logic-scientific-discovery. pdf
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Fischer, Gottfried/Riedesser, Peter: Lehrbuch der Psychotraumatologie, fourth ed. Munich 2016 Taylor, Gabrielle: Pride, Shame and Guilt. Oxford 1985 Tiedemann, Paul: Johann Gottlieb Fichte und die Identitätstheorie der Menschenwürde, In ARSP 103 (2017), 337–369 Tisseron, Serge: Phänomen Scham. Psychoanalyse eines sozialen Affekts. Munich 2000
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From Human Dignity to Human Rights Contents 7.1
What Is a Right? – 126
7.2
hat Is Meant W by Having a Right? – 133
7.3
Deriving Duties from Values – 135
7.4
eriving Rights from D Duties – 138 Reading Recommendations – 140
© Springer Nature Switzerland AG 2023 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-031-32292-1_7
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Derivation of Human Rights from the Principle of Human Dignity The analysis of what is meant by derivation of human rights from the principle of human dignity requires the analysis of the general structure of a human right and the examination of how the particular variables of this structure can be derived from the human dignity principle as well as how the predicate “having a right” can be derived.
The General Structure of a Human Right is the Following
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v [ has a human right ] toward x on y of z v = entities who are endowed with personhood = persons (including proto-persons). x = entities who are endowed with personhood and therefore share the human dignity judgment = persons. It follows that the original obligors of human rights are individual human persons and not the state. The state is not endowed with reason and conscience and cannot share value judgments. The state is only an organization of persons that should produce more effectiveness in the recognition and enforcement of human rights. Nevertheless, this organization is a very powerful and therefore potentially effective and dangerous perpetrator of human rights violations. Therefore, the state should be considered the addressee of human rights in a derivate sense. y = the specific action or omission on which v has a right. There are three different kinds of relationships: (1) right to respect, (2) right to protection, and (3) right to support. Respect = Omission of any kind of injury (tabooization). Unrestricted respect is possible for private persons as well as for the state or other organizations. Protection = Defending someone against the threats of injury by third parties. Protection is possible for private persons as well as for the state, but only to a certain degree that depends on the capacity and the resources of the protecting agent. The state has more power to provide effective protection than single individuals.
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Support = Helping someone escape from inhumane living conditions. Support is generally possible for private persons to a very low degree. States can overtake the task of support to a higher degree (social state). z = the protection scope. From the principle of human dignity follows only one protection scope of human rights: the freedom of will (authenticity). The particular protection scopes of particular human rights are only concretizations of the general protection scope “authenticity.” Human rights do not refer to the freedom of action.
Values and Norms The derivation of human rights from the principle of human dignity requires the derivation of norms from values. This seems, at least at first glance, logically impossible. From the fact that A prefers x does not follow that A has a right to x or that B is obliged toward A to x. Furthermore, values only refer to the person who evaluates. Rights refer to a relationship between obligee and obligor. But, according to Immanuel Kant, moral duties are duties toward oneself based on an inner coercion. They do not require a relationship to other persons. Therefore, it makes sense to ask whether there is a close relationship between values and duties that can be understood as a relationship of derivation.
Duties If in a conflict between volitions of the first order and volitions of the second order (Harry G. Frankfurt) the latter appears to the agent as a mental coercion, then the agent considers the volition of the second order an duty. Duties refer to the absolute value of human dignity if the second order volition refers to the development and/or maintenance of personhood. Duties that refer to personhood can be called human duties. So, it can be shown that it is possible to derive human duties from the value of human dignity.
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From Human Duties to Human Rights Considering that personhood has an absolute value (dignity) for humans and that there are huge temptations that drive us to act contrary to our highest preferences which we consider human duties, we are forced to use any available means that can help us avoid acting contrary to these duties. One effective means to ensure our observance of our human duties is the conferral of human rights. By conferring human rights, we subject ourselves to the criticism and control of those who are the beneficiaries of our human duties and the potential victims in the event that we breach our duties. A further means of ensuring our fulfillment of the duties is the transformation of moral human rights into legal human rights.
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Conferment of Human Rights The conferment of moral human rights is not a performative act in a literal sense. Rather, it is an attitude. This attitude is based on a voluntary adoption. Therefore, we can theoretically decide not to adopt this attitude. Nevertheless, recognizing the absoluteness of our human duties while at the same time rejecting the conferment of human rights is irrational.
7.1
What Is a Right?
In the last chapters, I tried to clarify the concept of human dignity. So, we are now well prepared for asking how exactly human dignity can be considered an adequate principle that underlies the foundation of human rights. To recap, in the fourth chapter we saw how international law considers the founding role that human dignity plays in human rights (e.g., the preambles of the International Covenants of 1966). There, it is assumed that human rights are derived from the principle of human dignity. Thus, according to international treaties, human rights are said to be connected to human dignity by a certain kind of derivation. In this chapter, we need to clarify what can be meant by derivation in this context and whether such a derivation connection can be philosophically justified. In order to clarify the kind of link between
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human dignity and human rights, it is first necessary to clarify both concepts that are supposed to be linked. So far, we have achieved an appropriate understanding of the concept of human dignity. Now, we must analyze the concept of human rights. Consequently, the first question arises: What is a right? We can display the structure of a right in general and a human right in particular by the following way: v [ has a right toward ] x on y of z You see that there are four variables that we have to identify. Having identified these variables we can then turn to clarifying what is meant by “having a right.” What is v? The first variable v relates to the beneficiary of human rights. If human rights can be derived from human dignity, then it seems to be clear that the beneficiaries of human rights are the very same entities to whom we ascribe dignity. As we have seen, these are comprised of all the entities which are endowed with personhood. Entities which are endowed with personhood are called persons. Thus far, we have learned that personhood is only a potential quality of human beings. We can therefore say that human dignity relates to every human person. From this follows that the beneficiaries of human rights are all human persons. It follows that beneficiaries of human rights can only be persons and not non-persons. Human beings can only be beneficiaries of human rights if they have the property of personhood or, at least, the potential for personhood (proto-persons). It is not possible to conclude from the principle of human dignity that every human being can be considered a beneficiary of human rights, particularly for those who are neither persons nor have the potential to become a person. As I have already mentioned in the fifth lesson, many legal philosophers criticize the thesis I introduce here by arguing that a concept of human dignity that is based on the absolute evaluation of personhood is unconvincing because it does not lead to a conception of human rights that protects every human being. My counterargument against this criticism is that the critics confuse the relationship of human dignity with human rights. They try to derive the meaning of human dignity from a certain idea of human rights instead of deriving the meaning of human rights from a certain idea
Owner of Human Rights
Criticism
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of human dignity (e.g., Waldron). The meaning of the term human rights depends on the meaning of the term human dignity and not the other way around. The second counterargument is that it is not possible to deliver an absolute value judgment in favor of the pure human specimen. There is no transcendental argument available for such an argumentation. It is not possible to show that something else except for personhood can be considered to have absolute value. It is important to stress that the scope of this examination only concerns the foundation of human rights and not the foundation of morality and all its attending principles. It might be that there is a moral principle that requires a certain kind of respect toward every member of the human family. Whatever this principle may be, it is not part of human rights because human rights are what we can derive from the principle of human dignity and human dignity, in turn, only refers to persons. What is x? The variable x refers to those from whom the beneficiaries can expect to benefit. These are exactly those entities that defend the human dignity judgment. As we have seen, it is not rationally possible to not accept the human dignity judgment. Anyone who does not share the human dignity judgment would necessarily have to abandon ever being in a position to make value judgments. So, whoever is interested in their own personhood must also accept the human dignity judgment. Considering that all persons are necessarily interested in their own personhood, all persons must accept the dignity judgment, provided that they are rational. From this follows that x means every human person. Some legal philosophers share the opinion that human rights are only addressed to states and not to particular individuals much less every human person. This opinion seems to be confirmed by international law and by many national constitutions which only address human rights in terms of the state. So, we read in Article 1 German Basic Law:
»» Human dignity is sacrosanct. To respect and protect it is the duties of all state authority.
According to this view, only the state has the duties to respect the human rights as opposed to everybody respecting the human rights of everybody else. Nevertheless, there are some rare cases of constitutions which make
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clear that respecting human dignity is a mutual duties for all human beings. I know two examples: namely the constitution of the German state Brandenburg and the Constitution of the Republic of Malawi. In Article 12 (IV) of the latter we read:
»» The inherent dignity and worth of
each human being requires that the State and all persons shall recognize and protect fundamental human rights and afford the fullest protection to the rights and views of all individuals, groups and minorities whether or not they are entitled to vote.
The Constitution of the state of Brandenburg says in Article 7 (II):
»» Everyone owes everyone the recognition of their dignity. From the principle of human dignity first follows that only human persons must respect the dignity of others because the concept of human dignity refers to a value judgment and only persons are capable of making value judgments. The state is not included within this meaning of a person. It is not a living entity that is endowed with reason and conscience. The state is only an idea in our brains, the idea of an organization of human individuals. Citizens as well as civil servants, judges, or politicians of a state act according to an internalized role that is part of the imagined idea of the state. The idea that human rights are addressed to the state as the obliged entity therefore cannot be derived from the principle of human dignity. Rather, the state should be considered a means of guaranteeing human rights. In order to make sure that every human person respects the human dignity and therefore the human rights of others, they establish the state as a powerful means and give it the task of respecting and protecting the human rights of its subjects. Whether or not the state is obliged to respect and protect human rights is therefore a matter of positive law. From a moral point of view, we can say that a state that does not respect human rights is an unjust state. An unjust state functions as a means for particular human individuals—those who have the power of the state—to violate the human rights of others. What is y? While discussing the points above, I used the expression “respect” without any comment. This was only done provisionally. We now turn to discussing whether “respect”
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is the appropriate and sufficient relation between the variable v and the variable x. One thing is clear: if the personhood of others has absolute value for me, then it is a consequence for me to respect the personhood of others. Respect is the basic relation between v and x. V has, in any case, a right toward x on (y =) respect. There are, however, two other kinds of relations imaginable: the relation of protection and the relation of providing aid (support). Protection not only means that x is supposed to refrain from committing any infringement of the human rights of v, but also that x is obliged to actively defend and protect the human rights of v against threatening violations by third parties. The duties to protect, however, cannot be as unconditional and without exception as the duties to respect. There are some limitations. The limits of protective activities depend on our capacities. If we are not strong and powerful enough to effectively protect the human rights of others, then we are not obliged to do so. Even if we are able to protect a particular individual against a particular threat, it is not possible to protect everyone who is in need. Our capacities are thus further restricted not only by our potential or resources, but also the fact that our resources are devoted to more than one target. We have to use our time, strength, and money not only for the protection of others but also for other aims that must be achieved in order to lead one’s personal life. Criminal law distinguishes between affirmative acts and acts of omission, and evaluates each differently. Whoever violates a legally protected interest through affirmative acts always commits the corresponding offense and is to be punished for it. Nevertheless, someone who violates a legally protected interest by failing to act in accordance with a protective commitment is to be punished not for the corresponding crime but only for the failure to render aid, which is a weaker crime. Only in some exceptional cases does the law consider the failure to render aid in the same manner as if the violation had occurred through an affirmative action. Such cases are those that involve a person who has, by law or by contract, obtained the status of guarantor of a certain outcome. On the level of morality, we must also distinguish these two cases. Only in some exceptional cases do we consider an omission as being of the same quality as an affirmative act. In the other cases, it
131 7.1 · What Is a Right?
is a question of appropriateness and reasonableness whether and to what extent we are obliged to protect. Finally, the consequence of protection is limited to those means which are compatible with human rights. The absolute appreciation of the personhood of others does not lead to the consequence that one should protect the human rights of others by violating the human rights (of third parties). In order to relieve citizens of the duties to render aid and to make the provision of aid as effective as possible, it is a good idea to transfer the task of protecting human rights to the state. Accordingly, the state is the means of effectively protecting human rights. Nevertheless, the duties of the state to protect human rights is limited as well. The duties to protect human rights is limited by the borders of the state and by the effective sphere of control. Another limitation is grounded in the restricted personal and financial resources of the state. The scope and limitations of the state’s duties to protect human rights cannot be defined with precision through philosophical means. The duties and their defined limits are a matter of positive law. Neither can be derived from the principle of human dignity. What is true for the protection of human rights against threats from third parties is also true with regard to the question of whether and to what extent individuals or the state are obliged to help persons who live under inhumane conditions that are caused by general living conditions as opposed to the malicious acts of third parties. This is also a question whose answer cannot be derived solely from the principle of human dignity. Here, too, the limits of capabilities, potential, and the multitude of targets are taken into account. So, from a purely moral point of view we can conclude that there is only a right to respect the personhood of the owner of the right while the protection of human rights against threats by third parties or the provision of aid to escape inhumane living conditions depend on complex empirical conditions that can only be addressed through positive law. What is z? The variable z refers to the content of the right. Within this field, derivation from the human dignity principle plays the crucial role. Derivation from the human dignity principle leads to the result that human rights are exactly those rights which are supposed to protect the status of a
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person as person. Human rights protect personhood. Personhood is the ability to lead one’s own life on the basis of authenticity. Authenticity is what we can call free will. Free will is based on one’s own considerations and reflections and free from all kinds of manipulation. It is important to stress that the function of human rights is neither to establish equality nor to protect the individual’s freedom of action. Thus, we must distinguish between freedom of action and freedom of will. It is only possible to derive from the human dignity principle rights that protect the freedom of will, while the same is not necessarily true for freedom of action. From where does this difference arise? Freedom of action is a person’s freedom to do whatever they want to do. Limits to freedom of action are limits to external behavior. In principle, a limitation on the freedom of action does not infringe on personhood. Freedom of action is not a matter of human rights. It is a matter of another legal principle, namely the liberty principle. I will come back to this principle in the 18th chapter. Comparatively, freedom of will is what matters in the context of human rights. The crucially important distinction between freedom of will and the freedom of action is, unfortunately, very seldomly reflected in human rights doctrine as well as in human rights case law. It is very necessary to keep this distinction in mind because the consequences are profound. Considering that freedom of will is the essence of personhood and that personhood is of absolute value, freedom of will is also of absolute value that is to be respected as such. Therefore, human rights are rights that protect freedom of will as an absolute. It is not possible to balance one human right against another or to balance human rights against any public interest. It is also not possible to reduce the protection scope of human rights in favor of any public or private interest that refers to equality, freedom of action, or any other task. It may sound strange to hear that human rights cannot be restricted or repealed. We have seen in the first chapter that many codified human rights contain clauses according to which it is legally permitted to reduce their applicability, e.g., for the sake of public security or public order, health, public morality, etc. I do not say that these clauses are not legitimate. Nevertheless, I claim that they cannot be interpreted as a basis to reduce the scope of the human right in question. I will come back to this point later in the ninth chapter.
133 7.2 · What Is Meant by Having a Right?
For now, I want to go back to the question of the status that is protected by human rights. I have said that this status is the status of personhood. So, we may conclude that there is only one human right. That is the human right to personhood. It means that every individual who is endowed with at least the potential to develop personhood is entitled to demand respect and, within certain limits, protection or support for the development and maintenance of personhood. Nevertheless, when we talk about human rights, we do not talk about one single human right but rather an entire collection of different human rights. This multitude of human rights comes from the fact that personhood can be threatened in very different ways. It is a matter of history what kind of threat occurs in a particular time and under what particular circumstances. The different human rights correspond to different threats of personhood. The part of a human right that denotes the particular threat at which it is aimed at is called the protection scope of the human right in question. Human rights differ from each other according to the differences in their protection scopes. But all these protection scopes define only different kinds of threats against the same fundamental good, namely, the personhood of the human person. Now, we can fill the variables of our structure with specific content. Every human person [has a right toward] every other human person and toward the state on respect (or protection) of their personhood.
7.2
What Is Meant by Having a Right?
One part of the structure remains open: What is meant by having a right?—The American legal philosopher Wesley Newcomb Hohfeld analyzed the concept “right” by observing how this concept is used in legal articles and judicial decisions. He came to the result that the concept “right” embraces four different meanings. He distinguished privileges, claims, powers, and immunities. Most legal philosophers do not use the term privileges but prefer to speak of liberties. Hohfeld’s distinctions apply for legal rights as well as for moral rights. A liberty is simply the absence of any contrary duties: P has the liberty to drink wine before dinner if there is no binding rule that prohibits drinking wine before dinner.
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A claim is the logical correlative of the corresponding duties of another party. P has a claim against Q to do x, if Q has the duties toward P to do x. A power is the ability to bring about some change in the legal or moral situation of oneself and of others by performing some performative actions, for example, saying “Here, this is yours!” An immunity is the correlative of the absence of any legal or moral power of another party. So, you have immunity from losing your ownership by any unilateral act of another party, such as by grabbing your book and saying “This is mine now!” A legal right consists of not only one of these positions but rather several of them. The owner of the human right to free speech has the liberty to express his opinion because he does not have a duties to keep silent. He also has the liberty to keep silent because he does not have a duties to speak. At the same time, he also has a claim against any other person to tolerate his speech or his silence because any third party has the duties to tolerate his speech or his silence. The right to free speech also embraces an immunity because no one else has the right to restrict the former’s right by performing a certain legal act. The right to free speech is not connected with a power because it does not embrace the power to change the legal position of oneself or of others. Altogether, we can say that having a right means having dominion over some core position in any confrontation with one or more other parties. Or, in other words: Having a right is the potency of the person in question to compel those who have an duties toward that person to do something or to refrain from doing something. In the case of a legal right, the holder of the right can force the obligor by means of public power or physical force. In the case of a moral right, the holder of the right can force the obligor only by appealing to his conscience or by means of public accusations that damage the obligor’s public reputation. These means may be less effective. But effectiveness is not a required condition for having a moral right. Although it is possible to violate a right by acting against it, this does not entail that the right itself fades away because of its violation. In a society of masters and slaves, the right to freedom from slavery is continuously violated by the masters. Nevertheless, we can say that the slaves have a moral right to be liberated. For we are convinced that the masters should be forced by
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their conscience to liberate the slaves and we think that everybody should be outraged about slavery. It therefore makes sense to recognize not only legal, but also moral rights.
7.3
Deriving Duties from Values
Rights always relate to duties. Where there is someone who has a right, there must also be someone else who has a corresponding duties. Duties and rights are normative sentences. Normative sentences say what we ought to do. Doing something because of an duties is different from doing something because of a preference. From this point it becomes clear that at first glance it is hardly possible to derive human rights of human dignity. Human dignity is the name of a value judgment and value judgments say what a person prefers. What a person prefers is what she wants. Comparatively, rights are norms and norms say what a person ought to do. The former refers to will, while the latter refers to duties. It is obvious that there is no direct possibility of deriving rights from values. This aspect is very often overlooked in philosophical discussion. Many legal philosophers think that it is not problematic to derive human rights from the principle of human dignity. The reason for their mistake is the continuing influence of the traditional natural law approach. According to natural law, values are part of the objective reality and they are, so to say, inherently connected to corresponding duties and rights. But if we follow the subjective theory of value as I did in the second chapter of this book, then there is a categorical gap between values and norms and we need a deeper analysis of the concept of duties and rights in order to find a bridge that could connect them with the value of human dignity. I do not know a way that directly leads from values to rights. Nevertheless, I think it is possible to show that there is a direct way from values to duties. I will try to show that duties are in fact a certain kind of wish or preference. If my argument is convincing, then we have a bridge from values to duties because both belong to the same family. Contrary to first glance, values and duties do not belong to different categories between which there is an insurmountable gap. Rather, values and duties belong to the same category, namely to the category of values. I have to
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H.G. Frankfurt’s Conception of Different Orders of Volitions
stress that I argue on an ethical level and not on a juridical one. That should always be kept in mind. I start my argumentation with Immanuel Kant. Kant defined the concept of duties as something that coerces our will. Kant distinguished between an internal and an external coercion. An duties that is based on an external coercion is an duties toward other persons and is called a legal or juridical duties. An duties that is based on internal coercion is an duties toward oneself and is called a moral duties. According to Kant, for example, it is an external coercion if I have to pay a fine because I have exceeded the speed limit. Therefore, he would conclude that the duties to comply with the permitted speed is based on an external coercion. A deeper consideration shows that external coercion can never establish an duties. The fine or the threat of fines can never coerce my free will. The fine is only a good argument in favor of the idea that I may comply with the permitted speed. Nevertheless, good arguments do not coerce our will. In fact, a will that is based on nothing but good arguments is not a coerced will, but rather a free will. This is indeed the definition of the freedom of will—that it is based on nothing but good arguments. One could possibly speak about an external coercion of the will when it comes to torture. But torture does not coerce the will. It destroys it. Someone who, for example, commits a betrayal under torture cannot be held responsible. For his betrayal is not based on his own will, but on the will of another—someone under torture behaves like a machine and does not act like a person. These considerations show that coercion of the will can neither mean the destruction of the will nor the determination of the will by arguments. It only makes sense to speak of a compulsion of will if we, in a certain sense, do not agree with our own will. This is the case when we wish to act in some way, while at the same time wishing to not act according the first wish. In such a paradox, two opposing wills fight against each other. We can say that we do not wish what we wish. We do not want what we want. We feel a contradiction inside our own will. The American philosopher Harry Gordon Frankfurt has proposed to solve this paradox of will by distinguishing between two different levels or orders of will, namely the so-called volitions of the first order and the volitions of the second order.
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Volitions of the first order are our ordinary wishes and desires. They arise spontaneously and disappear when they are satisfied or when another new desire arises and displaces the former. These volitions of the first order follow each other. There is no conflict between them. I will demonstrate the nature of volitions of the first order and its relation to volitions of the second order in a simple example that has nothing to do with morality or with human rights. Let’s say that I’m hungry and I go to a bakery to buy a cheese sandwich. The wish to buy and eat a cheese sandwich is a volition of the first order. But at the counter, I see a ham sandwich and now I feel the desire for a ham sandwich. This is also a desire of the first order. What will happen? The desire for the cheese sandwich disappears. It is replaced by the desire for the ham sandwich. There is no conflict between the two wishes. It becomes more problematic if our volition of the first order meets a volition of the second order. Volitions of the second order refer to a wish that seeks for the wish of first order to not become realized. For example, in the morning I stand on the scales and find that I have gained weight. As I prefer to lose weight, I choose—while staying on the scales—to go without the sandwich today. This is a second order volition. It does not happen spontaneously, but due to my own consideration. It is the result of my own appropriate decision. It says nothing about my current needs, desires and passions, but something about how I want to lead my life. At noon I am hungry. I pass the bakery and see the delicious cheese sandwiches. I feel a volition of first order to buy and eat that sandwich. But there is a conflict between this volition and my volition of the second order from this morning. The volition of second order does not simply disappear. It is still there. Both volitions stand in conflict. The volition of second order cannot be displaced by the volition of first order because they are not on the same level. The wish of the first order has something to do with my hunger, the wish of the second order has something to do with the way I want to lead my life. It is not about pleasure versus pleasure, desire versus desire or hunger versus hunger, but rather about autonomy versus hunger and those are two things that cannot be exchanged. If I decide against the sandwich in this situation, I will feel an uncomfortable feeling, namely a certain pain of deprivation, which also causes a certain sadness. Somehow, I feel frustrated. Nevertheless, this feeling occurs alongside a certain feeling of proudness because I withstood the
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temptation. But what will happen if I decide in favor of the cheese sandwich and against fasting? I am showing myself that I am guided by my drives, instincts, and desires, and not by my own reasonable decision. This is, however, not compatible with my self-esteem. My self-esteem is essentially based on my belief in my capacity of self- control and autonomy. Therefore, the self-inflicted loss of self-control leads to a loss of self-esteem or, in other words, to a self-devaluation. We regard this as a self-humiliation. We have a special word for this sense of self-humiliation and self-devaluation. We call it shame. The feeling of shame is much more painful than frustration because the former arises out of a deprivation of a second order volition, while frustration does not affect our self-worth as persons. The feeling of shame is very cruel and painful. This is why we regard the threat of shame as a power of coercion. In order to avoid shame, I feel coerced to choose fasting and to renounce the sandwich. In a conflict between strong volitions of the first order and strong volitions of the second order, we feel a kind of coercion that we can call duties. Nevertheless, there is usually also another way to avoid shame. We can change our life plans, i.e., the way that we want to live. I can give up the plan to lose weight. Now I no longer need to fast and feel shame when I eat a tempting cheese sandwich. However, the possibility of giving up second order volitions does not work when it comes to absolute volitions of the second order. In such a situation, it is not possible to give up such volitions because it is in those very volitions that our absolute preference in favor of personhood is contained. We cannot give up this preference without suffering great damage to our own personhood. I have shown this in the last chapter. So, we have shown that the absolute value of personhood mutates to a human duties if we are confronted with the temptation to ignore or to disregard the personhood of others. I think this is a convincing argumentation in order to show the possibility of deriving human duties from the principle of human dignity.
7.4
Deriving Rights from Duties
But how can we move from human duties to human rights? What I have shown so far is only that the principle of human dignity can function as a starting point from
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which we can derive duties toward ourselves. Duties toward oneself do not alter the moral position of others. So, we need another bridge that leads from the human duties toward ourselves to the human rights of others toward us. I think this bridge can be constructed in the following way. As we have seen before, we are threatened with feelings of shame if we violate our human duties toward ourselves. But in practice, it is very easy to avoid this result by replacing it with strategies of displacement as we have seen in the last chapter. So, there is a huge risk that we may fail in meeting our human duties. We therefore need strong mechanisms of control. Conferring rights to those who are the beneficiaries of our human duties toward ourselves is a sufficient mechanism of control. The conferment of human rights to our fellow humans has two important aspects: (1) we transform the d uties toward ourselves into duties toward others; and (2) by conferring rights, we subject ourselves to the judgment of those who are concerned with acts that disregard their personhood. Conferring a right means to subject oneself to the criticism and sanctions of possible victims that may be betrayed by our possible violations of human duties. We give them control over us and let ourselves be guided by them. Human rights are thus comparable to the mast to which Odysseus was chained to as he passed the island of the Sirens with his companions. He let himself be tied to the mast to be protected against the seduction of the songs of the Sirens, who otherwise would have tempted him onto their island so that he could crash into the cliffs. Human rights, like the mast of Odysseus, are a tool that can protect us against our selfish and ruthless desires in the face of numerous temptations. Human rights help us to not violate our mutual human duties that we have imposed upon ourselves. It is up to us whether we confer human rights. But because human dignity is the highest and most important value for every person, every person has an interest in making sure that a violation of human rights does not occur. Therefore, we are forced by rationality to confer human rights. It is irrational to respect human dignity while at the same time refusing to confer human rights. For respecting human dignity means to confer human rights to those who are endowed with personhood. We can therefore assume that everyone who has a sense of human
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dignity has, at the same time, a sense for moral human rights. Accordingly, we can say that human rights can be derived from human dignity. ? Do you Still Remember?
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1. What is the general structure of a right? 2. What is an duties according to Immanuel Kant? 3. The derivation of human rights from the principle of human dignity is problematic because human dignity refers to a value while human rights refer to norms. Under Harry G. Frankfurt, however, it is possible to derive duties from values. Explain the argumentation in few words. 4. Human rights are based on an attitude that can theoretically be understood as a permanent act of conferring: human beings are the holders of human rights because rational human beings confer each other human rights. What can be considered as a reason behind this act of conferring?
For the answers, see 7 Chap. 21.
Reading Recommendations Frankfurt, Harry Gordon: Freedom of the will and the concept of a person. In Journal of Phiosophy LXVIII (1971), pp. 5 Hohfeld, Wesley Newcomb: Fundamental Legal Conceptions as Applied in Judicial Reasoning and other Legal Essays. New Haven. Yale University Press 1920. https://archive.org/details/fundamentallegal00hohfuoft Kant, Immanuel: The Metaphysics of Morals, 1786 (translated by Mary Gregor), Cambridge: CUP 2017, Part II, The Metaphysics of Morals - Introduction Tiedemann, Paul: The Relation between Human Dignity and Human Rights: What is meant by deriving human rights from human dignity? In Winfried Brugger/Stephan Kirste (ed.), Human Dignity as a Foundation of Law. ARSP_Beiheft 137 Stuttgart: Franz Steiner Verlag 2013 Waldron, Jeremy: Is Dignity the Foundation of Human Rights? In Rowan Cruft/S. Matthew Liao/Massimo Renzo (eds.), Philosophical Foundations of Human Rights. Oxford 2015
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Human Rights Concerning the Protection of Physical and Mental Integrity Contents 8.1
he Multitude of Human T Rights – 143
8.2
he Ban on Inhuman/ T Degrading/Cruel Treatment and Torture in International Law – 144
8.3
Philosophical Analysis – 146
8.4
ritique of the Case C Law – 153 Reading Recommendations – 157
© Springer Nature Switzerland AG 2023 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-031-32292-1_8
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Four Groups of Human Rights There are four groups of classic human rights: 1. Rights concerning the protection of physical and mental integrity. 2. Rights concerning the protection of intellectual integrity. 3. Rights concerning the protection of privacy. 4. The right concerning the protection of life.
The Ban on Inhuman/Degrading/Cruel Treatment
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The codified rights to physical and mental integrity are very vaguely formulated. The international human rights codifications speak of prohibition of torture and inhuman, degrading, and cruel treatment (e.g., Article 5 UDHR, Article 3 ECHR, Articles 1 and 16 CAT, etc.). By way of a thorough philosophical and empirical analysis, these norms can be interpreted as follows: This right refers to the violation of personhood through physical and mental cruelty. There is no difference between “inhuman” and “degrading” treatment. They are synonyms. Both refer to treatment that results in a violation of personhood. However, this is the characteristic of any human right. What makes the right in question special is the word “cruel,” which, however, is not mentioned in Article 3 ECHR. An act is cruel if it inflicts severe physical or mental pain or suffering. Cruelty leads to a violation of personhood in that the mistreatment of the body and/or psyche results in a comprehensive loss of control and thus a loss of belief in one’s own self-efficacy. This implies the belief of being worthless as a person and the willingness to submit to the will of others. In very extreme cases, cruel treatment can lead to what psychologists call Dissociative Identity Disorder, which is the complete alienation of a person from their own physical identity (one’s body is perceived as somehow alien). Not every interference with the physical integrity of a person falls within the scope of protection of this human right. For example, compulsory vaccination is an interference with bodily integrity that does not constitute a violation of human rights. This is because compulsory vaccination does not affect the personhood of the person concerned.
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The Ban on Torture Torture is intentional cruelty. It is the paradigm of a cruel act.
Case Law The interpretation of Article 3 of the ECHR by the European Commission of Human Rights (in the Greek Case of 1969) and by the European Court of Human Rights (Ireland v. UK of 1978) is – compared with the philosophical analysis – very confusing and hardly convincing. This demonstrates the usefulness of a philosophical analysis.
8.1
The Multitude of Human Rights
In the last lesson, we analyzed the general structure of human rights. One important element of every human right is the protection scope. The scope of protection is what can be derived directly from the principle of human dignity. Every single protection scope refers to a certain threat to the personhood of human persons. The entirety of the scopes of protection illuminates certain aspects of personhood. So, we can say that the sum of all the scopes of protection of human rights forms a concretization of the concept of personhood. Deriving human rights from human dignity is a logical operation that consists of moving logically from a general term (personhood) to specific terms. Or, we can say that the scope of protection is an isolation of a certain particular aspect of the general term personhood. In this chapter and in the following five chapters, I will show you this close connection between human dignity and human rights by analyzing some rights according to how they protect personhood. In general, we can distinguish four groups of human rights: 1. Rights concerning the protection of physical and mental integrity. 2. Rights concerning the protection of intellectual integrity. 3. Rights concerning the protection of privacy. 4. The right concerning the protection of life.
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8.2
he Ban on Inhuman/Degrading/Cruel T Treatment and Torture in International Law
In this lesson, I want to take a closer look at the rights concerning the protection of physical and mental integrity. The international human rights treaties codify these rights through very nebulous and unclear wording. The keywords are torture, inhuman and degrading treatment, and cruelty (among others: Articles 5 UDHR, Article 7 ICCPR, and Article 3 ECHR). I will discuss this human right using the example of Article 3 ECHR (see . Fig. 8.1). The rights concerning the protection of physical and mental integrity also include the prohibition of slavery and servitude (Art. 8 ICCPR; Art. 4 ECHR). However, I will not go into these rights in detail. For this, please refer to the recommended reading. A first look at the words “inhuman and degrading” may trigger certain representations and images in our head, so that we get a rough idea of what might be meant. However, a closer examination shows that it is difficult to define these terms. It seems much easier to understand what is meant by torture. This is particularly the case because we have a legal definition of torture – not in the ECHR, but in the framework of the human rights regulations. Article 1 of the UN Convention against Torture and other Cruel Inhuman or Degrading Treatment and Punishment (CAT), adopted and opened for signature, ratification, and accession by General Assembly on 10 December 1984, defines torture according to four elements (see . Fig. 8.2). These elements are: 55 Severe pain or suffering, whether physical or mental, 55 Intentionally inflicted, 55 For purposes (obtaining information, punishing, etc.), 55 Where a public official is directly or indirectly responsible.
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. Fig. 8.1 Article 3 ECHR
145 8.2 · The Ban on Inhuman/Degrading/Cruel Treatment and Torture…
. Fig. 8.2 Article 1 CAT
. Fig. 8.3 Article 16 (1) CAT
Although the Convention does not contain a specific definition for the meaning of “inhuman and degrading treatment”, it nevertheless provides a hint. According to Article 16 CAT (see . Fig. 8.3) there are: 55 Other acts of cruel, inhuman or degrading treatment which do not amount to torture 55 When such acts are committed [under the control] of a public official.
The defining characteristic of “public official” is negligible. It does not form part of the term “torture” or the term “inhuman and degrading treatment,” and instead only functions to limit the obligations under the UN Convention against Torture to certain cases of torture and inhuman and degrading treatment, namely where the state and its officials are responsible. Article 3 ECHR does not have this limitation.
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From the word “other” in Article 16 (1) CAT we note that torture is a kind of cruel, inhuman, or degrading treatment. “Cruel, inhuman, or degrading treatment” is, so to speak, the generic term while “torture” is one of its sub-terms. Torture is a special type of cruel, inhuman, and degrading treatment. The difference between torture and other cruel, inhuman, or degrading acts is not entirely clear. First, it may be seen in the fact that torture requires an intention, whereas other cruel, inhuman, or degrading acts may be committed without intention. Secondly, it could be part of the conceptual characteristics of torture that it is always carried out for specific purposes, whereas no specific purpose is required for another cruel, inhuman, or degrading act. However, the definition of torture in Article 1 CAT mentions specific ends only by way of example. According to this definition, torture is an act by which severe pain and suffering are inflicted - whether without reason or for any reason whatsoever, for example to achieve certain ends.
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Philosophical Analysis
Both the CAT and the ECHR leave the question of what the difference is between “inhuman” and “degrading” treatment unanswered. Furthermore, the CAT provides a third distinction, namely “cruel,” which is also contained in the UDHR as well as in the ICCPR, but not in the ECHR. So, it is obviously necessary to analyze the words “inhuman” and “degrading” as well as “cruel” through a philosophical analysis of language. First, what is meant by “inhuman”? My approach to the term “inhuman” consists of four steps. 1. The first statement we can make is that “inhuman” is obviously the negation of “human” like “invisible” is the negation of “visible.” Therefore, it seems reasonable to first ask what is meant by human treatment. 2. A first, but obviously false interpretation could consider the word “human” as an adjective of treatment that informs us about the fact that the treatment is committed by a human being. A human treatment in this meaning is a treatment committed by a human being like a divine treatment is a treatment committed by God. An inhuman treatment is then a treatment that is committed by a non-human living entity. Nevertheless,
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the word “inhuman” cannot be understood in this way. There is no entity in the world that can commit an inhuman treatment except for human beings. 3. A second interpretation recognizes the adjective “inhuman” not as a qualification of the word “treatment” regarding the agent of the treatment, but regarding the object of the treatment, namely the recipients of the treatment. An inhuman treatment in this meaning would thus transform a human being into a non-human being. How is it possible to transform a human being into a non-human being? A human being is, by definition, a living entity. Transforming a human being into something else can therefore mean to kill him. The dead body of a human being is not a human being anymore because it is not a living entity. It is a non-human entity. Nevertheless, the term “inhuman treatment” may not amount to killing of a human being. Someone who suffers from being subjected to inhuman treatment is still alive. Thus, the transformation of a human being into a non-human being must lead to other results. 4. A convincing interpretation seems to be that “human” or “inhuman” is meant in an emphatic sense. In this emphatic sense, “human” is not just merely a human being, i.e., a specimen of the human species, but a person. A treatment is thus “inhuman” if it leads to the result that a human being is deprived of their personhood. Let us move to the concept of “degrading.” What is meant by a “degrading” treatment? My approach to the term “degrading” also consists of four steps. 1. According to its literal meaning, “degrading” means to remove someone from a relatively high grade or rank to a lower grade or rank. The concept leaves the objective quality of the higher and lower rank open. For example, if a politician has the rank of prime minister and after the elections he serves in the next cabinet as a minister, we could say that he has been degraded. If a free man is captured and made a slave, he too has been degraded. Nevertheless, it is obvious that there is a huge difference between these two cases. The term “degrading” is therefore very vague. 2. Still further, an appropriate understanding of what is meant by “degradation” can be achieved if we consider
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that there is another word that functions in some cases as a synonym for degradation. This is the word “humiliation.” Humiliation comes from the Latin word “humus” which means “soil.” A treatment is humiliating and, in this sense degrading, when it brings somebody down to the soil. What does this mean exactly? 3. We must consider that it is a standard pattern in the intellectual history of mankind to distinguish human beings from other kinds of living entities through the attribute of being upright. Being upright means living at a distance from the soil. To bring a human being back down to the soil thus means to reduce that very distance. Accordingly, humiliation means to deprive someone of the “human” distance between himself and the soils, to transform him, so to speak, into a mere worm that crawls through the soil. 4. The distance from the ground, the upright walk, is only an image for what actually makes the difference between humans and other living beings, namely the personhood. To humiliate someone, that is, to figuratively bring them to the ground, therefore actually means to deprive them of their personhood.
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“Cruel”
The language analysis of the notions “inhuman” and “degrading” shows that there is no difference between their respective meanings. The meaning of both is “to deprive someone of their personhood.” Nevertheless, “deprivation of personhood” is not an appropriate protection scope of a particular human right, because it is the general protection scope of all human rights and does not mark the difference between them. So, the question of what special threat to personhood should be covered by the particular right to freedom from inhuman/degrading treatment remains open. Here, it is useful to recall the attribute “cruel” that we find in Article 16 CAT as well as in Article 5 UDHR and Article 7 ICCPR. Cruelty should not be understood as an alternative to inhuman/degrading, but rather as the specific characterization of the kind of inhumanity/degradation that is addressed in this particular human right (although it is not mentioned in Article 3 ECHR). Thus, the above-mentioned norms are concerned with the protection against damage to personhood through cruelty. In this context, cruelty is to be understood as defined in Article 1 CAT, namely as an intentional act by which severe physical or mental pain or suffering is inflicted.
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But now the crucial question arises – how can cruelty deprive someone of their personhood? It seems that cruelty, by definition, refers to the body and mentality (the feelings) of human beings, but not their capacity to create a free will based on their own considerations and reflections. In many societies, we tolerate cruelty to large extents, but very often people are not aware that it is depriving others of their personhood. For example, until very recently, beating children was broadly understood throughout the world as a common means of education. Nobody thought that there was anything wrong with beating a child so long as the beating could be considered moderate. It is interesting to note what Pope Francis said about this subject to an audience on 4 February 2015 in Rome. He referred to a father who had said, “I sometimes have to smack my children a bit, but never in the face so as to not humiliate them.” The pope then praised the father for respecting his children’s “dignity” by not beating them in the face or humiliating them. “He knows the sense of dignity!” said the Pope. “He has to punish them but does it justly and moves on.” Many commentators and large parts of the public in Germany and elsewhere were shocked and outraged. According to German civil law, beating a child is strictly forbidden. Section 1631 (2) BGB (Civil Code) reads:
»» Children
have a right to [a] non-violent upbringing. Physical punishment, mental injuries and other degrading actions are prohibited.
Nevertheless, this rule was only introduced in the year 2000. I suppose that the Pope would not dispute this rule. However, he may argue, that a moderate beating that does not break bones, damages organs, bursts skin, or leaves visible bruises does not violate the body of the child and cannot be considered violence so long as the beating is not directed at the face. The example shows that our perception of cruelty is different and depends on how we correlate assaults to the body with the deprivation of personhood. How can intervening with the physical integrity of a person lead to a deprivation of personhood? The graphic The Circle of Deprivation of Personhood explains this phenomenon (see . Fig. 8.4). Hurting the body can damage the personhood when it deprives the individual of their awareness of and control over their own body. Our awareness that we are the authors of our own life, capable of
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. Fig. 8.4 The circle of deprivation of personhood. (© Sophie Reinisch)
producing a free will on the basis of our own considerations and reflections, depends on the feedback of our body. We manifest our will by making a decision and transferring such to the appropriate physical activity. The body, in turn, reports back that it has received the command of the will and that it is acting in accordance with the will. From this report the will learns, so to speak, that it is effective. This awareness of effectiveness confirms the awareness of being the source of one’s own actions. It confirms the feeling of authenticity and encourages the individual to continue their attempts to lead a life of authenticity. Losing control over the body disconnects this mutual stream of information between will and body. From the viewpoint of one’s consciousness, the disconnected body is perceived as being far from oneself and being strange to oneself. The will loses trust in its own effectiveness and the individual consequently loses motivation and eventually the ability to create its own free will. This progression ends with the termination of personhood. In very extreme cases, this development results in what psychologists call the Dissociative Identity Disorder, which consists of a complete alienation of the self from its own physical identity. Nevertheless, this is only the most extreme possibility. But even in less extreme cases, physical
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violence can degrade and, eventually, permanently damage the relationship between will and body, thus ultimately causing an impairment to and reduction of personhood. Even in those situations where we cannot say that personhood has almost completely or completely disappeared, this injury is a serious disregard of personhood and requires protection through human rights. It is not only physical violence that leads to damage to Mental Violence personhood. Such may also be achieved through the infliction of mental pain and suffering. Interventions with the mental integrity of a person affect the feeling of control over the body by injecting the belief that the person has lost all control. Interventions with mental integrity lead a person to a deep disregard and mistrust of oneself as well as a willingness to subject oneself to the will of another. Examples of this kind of violence include mock executions, water boarding, or a forced choice between one’s own children, one of whom is (actually or feignedly) to be killed. This state of disregard for oneself can be a side- effect of the deprivation of physical control. Let me give you an example. In many Islamic countries, women are exposed to a severe grade of disregard through propaganda and, even, a non-violate oppression. Until recently, women in Saudi Arabia were prohibited from driving a car or choosing a profession. For every decision concerning their own life plans, they needed the permission of a man. This general atmosphere of disregard and contempt for women, which religion continues to justify, makes women believe that they have far less worth than men. This worthlessness relates to the capacity of women to lead their own life. It makes them believe that they cannot lead their lives on the basis of their own free will based on their own considerations and reflections. Women thus lose the feeling of appreciation and trust in their own judgment. They are therefore willing to subject themselves to the will of another. Impairing the consciousness of these women so that they come to believe that they are not someone but only something is a very extreme case of cruelty through mental interventions. Another extreme example is shown in the picture below (see . Fig. 8.5). It shows Jews in Vienna who were forced to clean the street with their hands, toothbrushes, and similar things when Hitler occupied Austria in 1938. This treatment is a good example of a violation of the mental integrity without any direct physical injury. Forcing a person to do completely ineffective and senseless work leads
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. Fig. 8.5 Jews cleaning a street in Vienna with their hands (1938). (© Yad Vashem Photo Archive, Jerusalem. 1495/9)
Torture
the person to believe that their life, their will, and any attempt to create a meaningful life is worthless. Nevertheless, forcing someone to clean a street in Vienna for some hours may not have caused them to lose their consciousness of personhood through this single event. But the permanent continuation of this type of measures increasingly destabilizes the self-esteem of a person until it eventually leads to the loss of personhood. This is why every single act of cruel treatment is to be considered a violation of the human right to physical and mental integrity. I hope to have shown that cruel treatment through physical or mental interventions establishes a huge risk of loss of personhood. So how does torture relate to cruel treatment? It makes no sense to distinguish between cruel treatment and torture. Indeed, the distinguishing criteria applied by the Commission on Human Rights or by the ECtHR are irrelevant. It does not matter whether the cruel treatment or torture is intentional or merely negligent – it is forbidden in any case. Nor does it matter whether the cruel treatment or torture pursues specific ends. Both criteria of distinction are completely irrelevant regarding the danger to personhood created by cruel treatment, be it torture or not. The mention of torture in the relevant
153 8.4 · Critique of the Case Law
Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law. . Fig. 8.6 Article 2 (2) GG
norms of international law serves only the function of providing a vivid example of what is meant by cruel, inhuman, and degrading treatment. This is particularly important for the interpretation of Article 3 ECHR, because the characteristic of cruelty is not mentioned there. Only the reference to torture reveals what is at stake, namely the prohibition of cruel treatment. The philosophical analysis also shows that not every interference with bodily integrity is relevant under human rights law, but only those interferences that must be qualified as cruel. This is especially important for the application of human rights norms that do not explicitly refer to cruelty but have a broader scope of protection. This applies, for example, to the German Basic Law. According to Article 2 (2) of the Basic Law, everyone has the right to physical integrity, although this right may be interfered with on the basis of a law (see . Fig. 8.6). However, this legal possibility of intervention can only be considered to the extent that the intervention in physical integrity does not constitute a violation of a human right due to the lack of cruelty. There are interferences into the physical integrity, which do not lead in any way to an endangerment of personhood. Such interventions can be permitted by law or based on a law. This applies, for example, to compulsory vaccination to combat a pandemic. The claim repeatedly made by opponents of vaccination in the Corona pandemic that their human rights would be violated by a statutory vaccination requirement therefore lacks any basis.
8.4
Critique of the Case Law
So far, we have philosophically and empirically analyzed the notion of the ban of cruel as well as inhuman/degrading treatment. The results now permit a comparison with the ECtHR’s interpretation of Article 3 ECHR. This comparison clearly shows the benefits of a thorough philosophical analysis.
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Greek Case
The first definition of torture as well as inhuman and degrading treatment was made in the context of the so- called “Greek Case” in 1969. It was not the Court itself who delivered the definition, but the European Commission of Human Rights. According to the ECHR of the time, the proceedings started before the Commission and the Commission had to decide whether the case should be forwarded to the Court. The Commission had a filter function. The institution was eventually abolished in 1998 (11th additional protocol). The “Greek Case” was initiated by Denmark, Norway, Sweden, and The Netherlands. It was a complaint against Greece, which at the time was governed by a military junta that was committing many cruel crimes against Greek citizens. The Commission made a report of almost 700 pages. In this context, we find the first definition of torture and inhuman and degrading treatment. The definition starts with the concept of inhuman treatment and defines it as a treatment that deliberately causes severe mental or physical suffering (see . Fig. 8.7). The Commission added the element of a lack of justification. Torture was defined by the Commission as a special kind of inhuman treatment that contains two additional elements, namely a particular purpose and an aggravation. Degrading treatment was defined as humiliation that drives the victim to act against their will or conscience. These definitions differ from our own findings in some important respects. We have seen that it does not make sense to distinguish between inhuman and degrading treatment. Nor does linguistic analysis permit the distinction between inhuman/degrading treatment on the one hand, and torture in terms of the severity of the intervention on the other hand. The idea that the infliction of
“The notion of inhuman treatment covers at least such treatment that deliberately causes severe suffering, mental or physical, which, in the particular situation is unjustifiable. The word ‘torture' is often used to describe inhuman treatment, which has a purpose, such as the obtaining of information or confessions, or the infliction of punishment, and it is generally an aggravated form of inhuman treatment. Treatment or punishment of an individual maybe said to be degrading, if it grossly humiliates him before others or drives him to act against his will or conscience.” . Fig. 8.7 Report of the EComHR on the “Greek Case “
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severe mental or physical suffering is not inhuman treatment if it can be justified is obviously unconvincing because it denies the absoluteness of human rights. The Commission delivered no arguments for its view. But their considerations have a major impact on case law to this day. The Commission could not forward the case to the Court because the junta had previously declared its withdrawal from the Council of Europe and cancelled the ECHR. In 1978, the Court for the first time had the opportunity to define the three concepts in the decision Ireland v. UK. The Court essentially followed the Commission’s view but deleted the element of justification so that the three concepts are now purely descriptive concepts without any evaluative element. In accordance with the Commission, the Court defined inhuman treatment as an infliction of intense physical and mental suffering, whether combined with bodily injury or not. Torture was defined as an “aggravated and deliberate form of cruel, inhuman or degrading treatment.” In contrast to inhuman and degrading treatment, torture should attach “a special stigma to deliberate inhuman treatment causing very serious and cruel suffering.” It is important to realize that the Court did not refer to the Commission’s opinion that specific purposes are crucial for the definition of torture. This makes clear that the motivation of the perpetrator is not crucial for the definition of human rights in general and torture in particular. They are about the protection of persons and the protection only depends on the impairment suffered by the aggrieved. The distinction between inhuman treatment and torture in terms of the element of aggravation is incorporated from the Commission’s point of view. But it is not convincing. It simply does not make sense to make this distinction. It is completely functionless. If the infliction of less severe pain is strictly forbidden, then the infliction of more severe pain is strictly forbidden a fortiori. There is no place for a more detailed distinction. Therefore, “torture” should be understood as a kind of explanation for the characteristic of degrading/inhuman treatment done with cruelty. However, this explanation is important because it shows that the infliction of severe physical or mental suffering and pain is not just an attack on the body and the soul, but rather that it degrades a person to a non-person.
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Degrading treatment was defined by the Court as humiliation. This is meaningless insofar as degradation and humiliation are synonymous. Defining a concept with its synonyms is not wrong, but superfluous. Furthermore, the Court restricted degradation to special cases of humiliation, namely to those by which the victims are debased and their physical or moral resistance is broken. This also does not make sense because humiliation is, by definition, a kind of treatment that debases the victim and breaks his resistance. When speaking about physical or moral resistance, the Court thinks in terms of the resistance of one’s own will and the resistance of conscience. This distinction is also not clear. Will and conscience belong to different categories. Conscience is not alternative to will, rather it delivers feelings and convictions which motivate the will. The most problematic aspect of case law is that inhuman treatment is considered a fundamental element of the legal definition of the scope of protection. As I have argued above, the common element of all three variants of ill-treatment that violate Article 3 ECHR is the infliction of intense physical and mental suffering, i.e., cruelty. However, this is expressed only indirectly in the text of the ECHR, namely by means of the concept of torture. But it is cruelty that distinguishes this human right from others. In contrast, it makes no sense to distinguish between degrading and inhuman treatment, since both terms have the same meaning. Any violation of human rights, not just the human right to be free from cruel treatment, is degrading or inhuman. Considering that the protection scope of the human right to physical and mental integrity refers to the protection of personhood, some critics conclude that the exclusion of non-persons from the so-defined protection scope leads to a complete lack of protection for those who are particularly dependent on the protection because they are, by nature, particularly weak. Here, critics think about human beings who are not endowed with personhood, like individuals that are in an irreversible coma or suffering from severe dementia. Others think about animals. Nevertheless, from the fact that human rights in general and the right to physical and mental integrity in particular protect personhood does not follow that it is permissible to treat living entities who are not endowed with personhood but are able to suffer with cruelty.
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Human Rights do not legitimize crueltyagainst non- personal living entities. According to Immanuel Kant, it is a moral obligation to not commit any cruel treatment against any entity which is capable of suffering in order to avoid blunting our feelings. The practice of cruelty destroys our capacity for empathy. Cruelty against animals is a step forward to cruelty against persons, and the moral prohibition of cruelty against non-persons is the first required step of our feelings toward persons and the protection of the physical and mental integrity of persons. ? Do you Still Remember? 1. All human rights serve the protection of one central good under different aspects. What is the central good? 2. Explain the circle of deprivation of personhood in cases of infringement of bodily integrity. 3. What is the crucial factual feature that distinguishes the ban of inhuman and degrading treatment and torture from other human rights? 4. According to the case law of the ECtHR, “inhuman treatment” and “torture” refer to the same kind of maltreatment. Describe this kind of maltreatment and explain the difference between “inhuman treatment” and “torture” under the case law.
For the answers, see 7 Chap. 21.
Reading Recommendations Conroy, John: Unspeakable Acts, Ordinary People: The Dynamics of Torture. Berkeley 2001 Di Cesare, Donatella: Torture. Cambridge 2018 Esquith, Stephen L. / Smith, Nicholas D.: Slavery. In: Routledge Encyclopedia of Philosophy, 1998, 2022. https://www.rep. ro u t l e d g e.c o m / a r t i c l e s / t h e m at i c / s l ave r y / v -1. h t t p s : / / d o i . org/10.4324/9780415249126-S055-1. European Court of Human Rights, Press Release: Slavery, servitude, and forced Labor (January 2022), https://www.echr.coe.int/ Documents/FS_Forced_labour_ENG.pdf Miller, Seumas: Torture. In Stanford Encyclopedia of Philosophy 2011. http://plato.stanford.edu/entries/torture/. Scarry, Elaine: The Body in Pain. The Making and Unmaking of the World. Oxford 1985. Schmid, Alex P./Crelinsten, Ronald D.: The politics of pain: torturers and their masters. Boulder 1994.
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Case Law BVerfG, d. of 27/04/2022 – BvR 2649/21 – (“proof of vaccination -Covid19”)http://www.bverfg.de/e/rs20220427_1bvr264921en.html European Commission of Human Rights, Report on the “Greek Case”, Yearbook of the European Convention of Human Rights. The Greek Case 1969, The Hague: Martinus Nijhoff 1972, p. 186 ECtHR, judg. of 18/01/1978 – 5310/71 – “Ireland v UK,” HUDOC
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he Habeas Corpus T Rights – 162
9.2
umane Living Conditions H While Under Detention – 165
9.3
he Function of Article 10 T ICCPR – 166
9.4
Total Institutions – 168
9.5
he Right to Freedom T of Movement – 172 Reading Recommendations – 173
© Springer Nature Switzerland AG 2023 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-031-32292-1_9
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Right to Liberty—Right to Freedom of Movement The right to liberty (Article 5 ECHR) refers to the freedom from captivity. The notion “liberty” describes the protection scope rather inaccurately because the wording does not tell us anything about the content of liberty (liberty from what?). The context only tells us that it is about freedom from captivity and detention. Freedom from captivity is the negative formulation of the freedom of movement. Article 5 ECHR is part of the so-called habeas corpus rights.
Habeas Corpus Rights
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The so-called habeas corpus rights do not generally prohibit detention and captivity but provide only a closed number of justifying grounds for lawful captivity (cf. Article 5 ECHR), certain procedural conditions (cf. Article 7 ECHR), and a right to a fair trial (Article 6 ECHR). They are procedural rights only and therefore constituent elements of the rule of law.
The Freedom of Movement Detention as such is a deprivation of the freedom of movement. The freedom of movement in a broader sense embraces (1) the freedom to move one’s own body due to physical needs, (2) the freedom not to be under detention (“liberty”), and (3) the freedom to move from place to place within a country or across national borders. Forced restrictions on the opportunity to move one’s own body, exit through a certain point on the earth’s surface and the space overhead, or occupying another geographical position, can in extreme cases be a violation of the right to freedom from torture and inhuman treatment (being shackled to a chain, being locked in a cage, etc.). But not every restriction of the freedom to change the geographical position as such is a violation of human rights. Detention can generally be accomplished in accordance with the principle of human dignity. Therefore, restricting liberty in certain cases does not conflict with
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human rights (e.g., detention after a lawful conviction by a court as a reaction to crimes). The conditions of life under detention must be free from bodily or mental violence while also ensuring food, sanitation, accommodation, and privacy. Furthermore, it must be possible for the inmates to make relevant decisions about their own way of life in order to develop their personality and to maintain their personhood (see below: total institutions). The codified right to free movement (Article 4 of the fourth Additional Protocol of the ECHR) only refers to the right to travel from one place to another inside the country or to the freedom to leave the country. This right is not to be considered a human right. If it is possible to lead an authentic life under detention, it is also possible to lead an authentic life without having the freedom to travel from a particular place of residence to another. Only if humane conditions of life are not available at the present place of residence is the prevention of movement a violation of human rights (right to freedom from inhuman and degrading treatment).
Total Institutions Prisons, hospitals, or nursing homes are very often organized in a way of total institutions (Erving Goffman). Total institutions are places “of residence and work where a large number of like-situated individuals, cut off from wider society for an appreciable period of time, together lead an enclosed, formally administered round of life.” Total institutions reduce the opportunity to make meaningful decisions about one’s own life. Everything is organized and prepared. There are only little choices. This weakens and finally destroys the ability of the inmates to lead their lives based on their own considerations and reflections. The inmates lose any sense of responsibility toward their lives such that they can no longer be considered authentic acting persons. This result depends on the duration of the time inmates are exposed to the total institution. A long term stay in total institutions establishes a violation of human
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rights. The hope of being released in a far future is not a sufficient condition to avoid deprivation of personhood in total institutions. Instead, it is necessary to have a sufficient scope in which the inmates can lead their lives responsibly and can make meaningful decisions about the way they want to live.
9.1
9
Reasons for Detention
The Habeas Corpus Rights
In this chapter, I want to deal with the rights relating to the deprivation of the freedom of movement. The term freedom of movement is commonly used when it comes to the question of whether someone is free to travel from one town or region to another inside the borders of a state. Still wider framed is the question of the freedom of global movement, which refers to the freedom to immigrate. These questions are, however, not in the center of this chapter. We will only come to them at the end and only to make some passing remarks. The center of this chapter is the deprivation of the freedom of movement in a much narrower sense—that is, freedom from captivity. When you search for these rights in human rights codifications, you will find that all these codifications deal with these rights under the label “right to liberty.” In contrast, I prefer the expression “freedom of movement” because the term liberty does not tell us to which kind of restriction the term refers. The claim for liberty leaves the content of liberty open (liberty from what?). I will subsequently show that the rights concerning captivity—despite their belonging to the classical content of every human rights codification—cannot be considered human rights. There is, however, one serious risk for the development and maintenance of personhood in this context that deserves special attention. This is captivity in total institutions. There, we really meet a human right. But let me first give an overview of the rights relating to the deprivation of the freedom of movement according to the ECHR. These rights are codified in Articles 5, 6, and 7 of the ECHR. At the center of these rights stands Article 5 (1) ECHR (see . Fig. 9.1). According to this Article, “everyone has the right to liberty” and no one shall be deprived of their
163 9.1 · The Habeas Corpus Rights
. Fig. 9.1 Article 5 (1) ECHR
liberty. Nevertheless, this freedom stands under a long list of reservations that permit the deprivation of liberty through detention. According to this list, detention is permitted and cannot be considered a violation of the right to liberty in the following cases: 55 Detention after conviction by a competent court; 55 Arrest or detention for noncompliance with a lawful order of a court in order to secure the fulfilment of an obligation; 55 Arrest or detention in order to bring a person before the competent legal authority on suspicion of having committed an offense; 55 Detention of a minor for the purpose of educational supervision; 55 Detention for the purpose of prevention of the spreading of infectious diseases and of persons of unsound mind, alcoholics, drug addicts, or vagrants; or 55 Detention in order to prevent someone from unauthorized entry into a country or in order to extradite or deport someone from a country. The arrest or detention must be lawful. This means that the reason for the detention or arrest must be described by law. Article 7 ECHR adds insofar the rule of “no punishment without law” that prohibits to punish an act that was not punishable at the time when it was committed. The provisions of Article 5 (2) through (5) and Article 6 provide for certain rights while arrested or in detention. These include the right. 55 To be informed promptly of the reasons of the arrest— Article 5 (2); 55 To be brought promptly before a judge—Article 5 (3);
Rights while under Detention
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55 To a trial in reasonable time—Article 5 (3); 55 To a fair trial—Article 6; 55 The right to judicial review of the arrest—Article 5 (4); and 55 The right to compensation in the case of unlawful detention—Article 5 (5). Habeas Corpus
9
All these rights are traditionally called habeas corpus rights. “Habeas corpus” were the initial words of a so- called habeas corpus writ by which an English court commanded the warden of a prison to bring a detainee to court in order to review the lawfulness of the imprisonment. (“[We command] that you should have the [detainee’s] body [brought to court].”). Habeas corpus rights are part of many human rights codifications. However, they obviously have nothing to do with human rights because human rights protect people from a state of living where they are no longer able to maintain their personhood. The reasons for lawful detention and certain rights of the detainee, like those concerning access to a court, do not refer to whether there are particular dangers and risks to personhood while under detention. Habeas corpus rights similarly do not refer to the living conditions while under detention. They do not protect inmates against inhuman living conditions under which they are at risk of being deprived of their personhood. Habeas corpus rights are only procedural rights and therefore simply constituent elements of the rule of law and not part of human rights. Furthermore, why someone is being detained is not actually relevant within the framework of the habeas corpus rights. A court’s conviction needs only be based on a statute that provides for the punishment of an offense that was specified by law before the defendant committed the crime. Habeas corpus rights, however, say nothing about the legitimacy of punishing particular conduct. For example, it is consistent with habeas corpus rights to punish homosexual conduct. Similarly, there is no conflict with these rights when the criminal code criminalizes criticism of the government. However, imprisoning a person for being convicted of such crimes must be considered a violation of the human right to sexual self-determination or the right to freedom of expression.
165 9.2 · Humane Living Conditions While Under Detention
9.2
9
umane Living Conditions While Under H Detention
In the context of the foundation of human rights, we must ask whether detention as such is to be regarded as a matter of human rights. Therefore, the question is whether the deprivation of the freedom of movement is to be regarded as contrary to the principle of human dignity and therefore a required object of the protection scope of a human right. Here, I think it makes sense to distinguish different degrees of deprivation of the freedom of movement and to consider all of them separately in order to determine whether they are in accordance with human rights. Consider a prisoner who is locked up in a small cage where he must hunch his body within a contained space that does not have enough room to take a normal body position. He is forced to remain in this position for many hours, days, or even weeks. This most extreme degree of deprivation of freedom of movement is obviously torture. It is a severe violation of human rights, but there is no need for an additional human right. Torture is already covered by the right concerning the ban of cruel treatment. There is no need to demand a separate human right to free movement in order to protect against a maltreatment of this kind. We can imagine other situations under detention that are also clear cases of torture or cruel treatment. Think about overcrowded prison cells or very small cells. Similarly other human rights can be infringed upon by the design of the detention conditions. One important element of humane living conditions is having a meaningful opportunity for private communication. This is the communication with close friends and with one’s own husband, wife, or children. Detention is often connected with the interruption of family ties. This is a violation of the right to family life (Article 8 ECHR). The interruption of family ties by detaining a person violates not only the rights of the prisoner, but also the rights of the other family members who are not detained. Human treatment under detention, therefore, demands facilities and opportunities where the members of the family can meet each other under the conditions of privacy. But again, this is no reason for a special human right. There is already a human right that sufficiently addresses humane living con-
Forced Motionlessness
Imprisonment Privacy in Prison
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ditions under detention as they relate to family ties and close private relationships. This is the right to privacy (see 7 Chap. 11). So, we come to a provisory conclusion: the set of all the other human rights are also applicable to living conditions under detention. It seems there is no special threat that is not already covered by the set of the ordinary human rights. But this is not the end of the story.
9.3
The Function of Article 10 ICCPR
Article 10 ICCPR may lead to the suspicion that the set of ordinary human rights are not enough to safeguard human dignity under conditions of imprisonment (see . Fig. 9.2). It seems to be a special human right for the living conditions under detention. Nevertheless, a closer look shows that Article 10 (1) ICCPR does not really add to the list of human rights. This can be shown by comparing the provisions that concern the ban of inhuman or degrading treatment in Article 7 ICCPR (see . Fig. 9.3). Both articles address the way that persons may be treated. The difference is that Article 7 prohibits a certain treatment (inhumane treatment) while Article 10 commands a certain treatment (humane treatment). We can express the difference by saying that the latter commands the omission of something, while the former commands the act of something. The idea behind Article 7 ICCPR is not that the contracting parties of the Convention should be obliged to
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. Fig. 9.2 Article 10 (1) ICCPR
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. . Fig. 9.3 Article 7 ICCPR
167 9.3 · The Function of Article 10 ICCPR
secure human conditions of life. The only thing they must do is avoid establishing inhumane conditions of life. Their responsibility is limited to not creating inhuman conditions. They are not responsible for inhuman situations that have not been created by them. Comparatively, Article 10 ICCPR refers to the obligation of the contracting parties to ensure that living conditions be free of any inhumanity. Article 10 ICCPR seems to command an activity while Article 7 ICCPR only commands an omission. A closer look, however, shows that this distinction does not really exist. The provision in Article 10 ICCPR relates to the situation of detention. This is, however, a situation that is established by the state. It follows that detention under inhuman conditions is a situation that is caused by the state. In other words, it is an inhuman treatment, exercised by the state. This shows that Article 10 ICCPR does not provide something different from what is already provided in Article 7 ICCPR. Article 10 ICCPR stresses only the fact that the state has a much higher responsibility for living conditions under detention than for living conditions under freedom of movement. The reason for that is easy to understand. Under the conditions of freedom of movement, people can escape from an area where they are exposed to an inhumane situation. Under detention they cannot escape. Therefore, those who detain others are responsible for ensuring the humanity of living conditions for those under detention. In such circumstances, the state takes on the position of a guarantor. This is why the state as the operator of detention facilities has to make sure that inmates are not treated inhumanely by their fellow inmates or by the wardens and that they are not injured in goods, which are protected by human rights. The comparison of Article 7 ICCPR and Article 10 ICCPR shows that the latter does not provide a special human right for living conditions under detention. Instead, it is a repetition of the ban of torture and cruel treatment as it is already provided in Article 7 ICCPR. Accordingly, it is a redundant rule. Living conditions while under detention must be in accordance with all the human rights that we have previously discussed or that we are going to discuss in the further chapters. Nevertheless, there is a specific threat that only occurs under conditions of imprisonment and similar situations.
The Redundancy of Article 10 ICCPR
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9.4
9 Definition
Total Institutions
This specific threat has to do with the fact that detention facilities—prisons, nursing homes, hospitals, etc.—tend to be total institutions. Total institutions represent a special threat to the development and maintenance of personhood. The term “total institution” was introduced by the Canadian sociologist Erving Goffman (1922–1982) in his 1961 book entitled Asylums. Essays on the Social Situation of Mental Patients and Other Inmates. The institutions Goffman had in mind were not only prisons and nursing homes, but also the Army, war ships, and monasteries. Furthermore, an additional and seldom mentioned type of institution that may also represent a total institution appears in the Wikipedia page about total institutions. The page refers to cruise ships and other tourist venues, but notes that these differ from traditional examples in that they do not last for long periods of time. Comparatively, extended stays that may come to include entire lifetimes is a fact in the cases of prisons and nursing homes. Goffman defined total institutions as places “of residence and work where a large number of like-situated individuals, cut off from the wider society for an appreciable period of time, together lead an enclosed, formally administered round of life.” Among the characteristics of total institutions are the following: 1. The inmates are uniformed. They wear similar clothing and often a similar haircut. Part of the uniformization is also that they have little to no margin to shape their environment according to their own tastes and preferences. Their activities are also uniformed. Each inmate has to do the same activity as somebody else or, at least, as part of a large group of others. Inmates cannot choose the activity they want to do and are forced to do activities under the commands of superiors. So, they cannot display themselves as singular individuals who are different from each other. The uniformization leads to the loss of interest and motivation to take care of oneself. 2. “All phases of the day’s activities are tightly scheduled, with one activity leading at prearranged time into the next. There is no margin to shape [one’s] own time.”
169 9.4 · Total Institutions
3. The “whole sequence of activities [is] imposed from above by a system of explicit formal rulings and a body of officials.” 4. The “various enforced activities are brought together into a single rational plan purportedly designed to fulfil[l] the official aims of the institution.” This definition is a definition of a type. Particular institutions can vary. So, the passengers of a cruise ship may not wear the same clothes and they might have a broader margin to choose activities as compared to the inmates of a prison. But one element is common for prisons as well as for cruise ships. This is the weakening and disappearance of the opportunity to lead one’s own life on the basis of one’s own considerations and reflections. Under all or at least all relevant aspects, inmates in a prison or tourists on a cruise ship lose responsibility for their own life. After a certain duration of time, the inmates can no longer be considered authentically acting persons nor are they able to consider themselves as such. As I noted above, the conditions on a cruise ship are not determinative of total institutions because tourists are only aboard for a short period of time. They may even enjoy the freedom from the everyday burden of being responsible for their lives. They use their time aboard to recover from the everyday burden of leading their lives with authenticity in order to return to these lives with renewed strength. Living in a monastery is different. The members of a monastery are always free to leave the monastic community. So, it is difficult to say that a monastery violates human rights. Monastic life may lead to a deprivation of personhood, but this is not a forced deprivation. Nevertheless, this phenomenon leads to the question of whether there is a moral duty toward oneself to maintain one’s own personhood or whether persons are morally free to renounce it. This is, however, not a question of human rights. Except for the right to life, human rights protect against the deprivation of personhood by offenders who are not identical to their victims (see 7 Chap. 14). In contrast, long lasting detention in a prison can lead to a forced deprivation of skills of personhood. It is interesting to note that the organization of total institutions is not immediately directed to the destruction of personhood, like is the case with torture. Rather, it is an indirect way of violation.
Durability
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The Process of Losing Personhood
The deprivation of any relevant margin to shape one’s own life leads to the devaluation of the personality that one has already developed. Personality is based on the entirety of someone’s actions that they have committed during their life. The maintenance of a personality requires the continuation of creating actions based on one’s own free will. If all actions that can be committed by the person concerned are rendered useless or irrelevant, then the person loses the interest and the motivation to create new life plans (see . Fig. 9.4). Initially, they are still able to lead their life based on their own will (stable personality). When they feel that their personality is threatened because they are no longer able to realize their own will by committing relevant actions (deprivation of self-determination) they will try to oppose the rules and conditions of the total institution (state of resistance). Considering that this resistance cannot be maintained, the respective person loses the interest and motivation to rescue it. As their ability to create free will is exercised less and less, the ability will eventually be lost to them altogether. Thus, the long-term inmates of a prison or hospital will subject themselves more and more to the will of the wardens and the rules of the system. The first step is the devaluation of personality, the second step is the loss of personality, and the third step is the loss of the ability to create a personality. These are the tiers of the deprivation of personhood. This process is called hospitalization when it is related to inmates of hospitals, nursing homes, or orphanages. Where this process concerns long term prison inmates, we can talk about prisonization. The German Federal Constitutional Court was the first to recognize the consequences that total institution has on the personhood of inmates. In a judgment of 1977, the Court ruled that life sentences violate human dignity and are therefore unconstitutional, unless there is a real chance to be released after a certain period of time. According to this judgment, the German Penal Execution
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Hospitalization Prisonization
Case Law
. Fig. 9.4 Process of hospitalization. (© Paul Tiedemann)
171 9.4 · Total Institutions
Act provides that inmates who have been sentenced to life shall be released after a period of 15 years unless there are concrete facts for believing that they do not regret their crime or if they were sentenced for an extremely severe crime. The ECtHR reached a similar conclusion in Kakaris v. Cyprus (2008). The ECtHR ruled that the imposition of a life sentence is not per se prohibited by or incompatible with Article 3 or any other article of the ECHR. However, a life prisoner must in any case have a prospect of release after a certain period of time. If imprisonment is subjected to a parole review after the minimum term has been served, it cannot be said that the prisoner in question has been deprived of any prospect of release. Both courts obviously hold the opinion that an inmate is sufficiently motivated and able to maintain the capacity to lead their life on the basis of their own considerations and reflections if there is a real prospect of release. I take the opinion that the prospect of being released 1 day in the far future is insufficient for avoiding the consequences of a total institution. In the case of life imprisonment, it is rather necessary to organize the prison in a way that avoids the elements of a total institution. In order to avoid the elements of a total institution, we have to think about alternative forms of prisons and detention facilities. An interesting example of such an alternative is the prison village of San Pedro in Bolivia. This village has workshops, restaurants and all the facilities which are customary in Bolivian villages. Nevertheless, contrary to ordinary villages, it is surrounded by a fence that is guarded. The inmates are not allowed to leave the village. The only people living inside are prisoners and their wives and children. They organize their own lives. The state does not provide for their livelihood or otherwise intervene in what happens within the village. In 2013, after 100 years of existence, the Bolivian government planned to close it because gangs of criminals had taken over and mistreated the inhabitants of the village. It became more and more a breeding place for new crimes, committed against the inmates of the prison. Nevertheless, it still exists. If we leave these negative developments aside, then the fact remains that the villagers are able to lead a normal life. They are only prevented from leaving the site. This restriction as such does not involve a situation where it is no longer possible to develop and maintain personhood.
Prison Village
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Therefore, it is not difficult to see why the mere prevention of leaving a certain part of the surface of Earth should not be considered as a matter of human rights. Captivity as such is not a violation of human rights; only the conditions within the detention center can violate human rights. Under the conditions of the Bolivian prison village, the inmates can organize their own life. They can develop life plans and they realize them. The deficiency is only that the state does not take responsibility for the protection of the inmates against ill-treatment by their fellow inmates. This leads to living conditions that must be regarded as inhumane. Failing to ensure the security of the inmates of the village is therefore to be considered a cruel treatment perpetrated by the State of Bolivia. Nevertheless, the Bolivian prison village is a good example of how a fenced institution could be organized to fulfil the function of separating criminals from the rest of the society while avoiding at the same time the elements of a total institution. The right to freedom from total institutions is not expressed adequately in current human rights codifications. Specifically, Article 10 ICCPR does not adequately describe the protection scope of this right. It cites only the general principle behind all human rights, namely the principle of human dignity. Nevertheless, every single human right is supposed to concretize this general principle by defining specific scopes of protection. This is unfortunately not what Article 10 ICCPR does. So, we have to recognize that it is necessary to derive a new unwritten human right from the principle of human dignity, namely the right to freedom from total institutions.
9.5
The Right to Freedom of Movement
As I promised at the beginning, I would like to add a few words on the status of the right to free movement. This right is found in Article 13 UDHR and in the Article 12 ICCPR as well as in Article 4 of the fourth Additional Protocol of the ECHR. It entitles anyone who is lawfully residing in the territory of a state to move freely and to freely choose their place of residence there. As I have mentioned above, the freedom to travel from one place to another inside a state is not necessary in order to maintain one’s own personhood. Even the mentioned codifications
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recognize that this right obviously is not a human right. For they make the exercise of the right dependent not only on the fact that someone is a human or a person, but also that they are lawfully residing in the territory of the state in which they wish to move freely. This last condition can only be fulfilled with the consent of the respective state. Rights that depend on the consent of the state cannot be considered human rights. ? Do You Still Remember? 1. Do the habeas corpus rights have to be considered human rights—why or why not? 2. There is a specific threat of personhood in prisons or in other closed facilities (hospitals, nursing homes, etc.) that is not adequately covered by one of the codified human rights. What do you know about this specific threat? 3. What is the function and relevance of Article 10 ICCPR? 4. Does the codified right to the freedom of movement have to be considered a human right?
For the answers, see 7 Chap. 21.
Reading Recommendations Foucault, Michel: Discipline and Punish. The Birth of the Prison. 1975 Goffman, Erving: Asylums. Essays on the Social Situation of Mental Patients and other Inmates. 1961 Stohmayr, Simone: Menschenwürde und Strafvollzug. 1998
Case Law BVerfG, judg. of 21/06/1977–1 BvL 14/76 –, BVerfGE 45, 187 ECtHR, judg. of 12/02/2008–21,906/04 –, “Kakaris v Cyprus” (§ 97, 98)
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Human Rights Concerning the Protection of Intellectual Integrity Contents 10.1
The Freedom of Information – 179
10.2
Freedom of Expression – 181
10.3
Freedom from Censorship – 183
10.4
he Right to Free Assembly T and the Right to Free Association – 185
10.5
Restriction Clauses – 186 Reading Recommendations – 198
© Springer Nature Switzerland AG 2023 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-031-32292-1_10
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Communication Rights The phrase communication rights embraces: 1. The right to free information; 2. The right to freedom of thoughts; 3. The right to free expression that includes the freedom to express assertions (impart information), questions, opinions, and convictions, the freedom to produce or to perform pieces of art and to do science and philosophy; 4. The right to freedom of assembly; 5. The right to freedom of association; and 6. The right to freedom from censorship of generally accessible media, like the Internet.
Function of the Communication Rights
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The core function of the communication rights is the defense of the freedom of will against manipulation. The particular communication rights refer to particular strategies of manipulation. A manipulated will is not based on one’s own considerations and reflections but on the considerations and reflections of the manipulator. Manipulation makes the will of a person into an alienated will.
Freedom of Information The freedom of information protects the free will against manipulation by suppressing relevant information and/or by producing false information, thus establishing a wrong world view.
Freedom of Thoughts The freedom of thoughts protects the free will against manipulation by indoctrination. Indoctrination is the dissemination of a unilaterally distorted doctrine, combined with the suppression of any criticism. The freedom of thoughts embraces the freedom to ask questions.
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Freedom of Expression Freedom of expression protects the free process of will making by ensuring the opportunity to review what someone holds as true or convincing. By expressing thoughts, we expose our ideas to criticism of others. In the light of the criticism of others, we can modify or reject them, so that our ultimate manifestation of will is based on rational considerations and reflections and not on illusions and errors. The suppression of the expression of thoughts is a manipulative strategy that seeks to hinder someone in their creation of a free will that is based on sufficiently tested rational considerations and reflections. We can identify ourselves as the author of our will making process only if this process is free from manipulation.
Freedom of Censorship The censorship ban prevents the manipulation of the media and protects the public against indoctrination by the media. As long as the media have a privileged position to speak and be heard, and as long as censorship does not oppress certain ideas but refers only to the cut off of the privileged position, the protection of the media cannot be considered a matter of human rights but rather a matter of democracy.
The Freedoms of Assembly and Association Assemblies and associations are media which serve the exchange of ideas. Like the mass media, they are an instrument by which manipulation, indoctrination, and error can effectively be avoided and a forum for criticism can be provided. Associations and assemblies can furthermore serve the purpose of cooperation and the establishing of synergy effects, power, and influence. Such cooperative activities go beyond the mere exchange of ideas. In this respect associations and assemblies are not protected by a moral human right. For the freedom to organize organizations of cooperation in terms of activities beyond the exchange of ideas cannot be derived from the principle of human dignity.
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Reservations in the Codified Communication Rights The philosophical analysis shows that the restriction clauses in codified communication rights (e.g., Articles 9 and 10 ECHR) are partly much too extensive. They can only be accepted if we take into account that the protection scope of the codified right is wider than the protection scope of the moral human right that can be derived from human dignity. Thus, it makes sense to distinguish the core and the yard of a codified right. The core of the right embraces what is required to protect the moral human right. The yard embraces what falls under the notions of the codified rights, but lies beyond the scope of the moral core. Only an appropriate philosophical analysis of the protection scope of the rights allows us to interpret the restriction clauses in a way that respects the fact that moral human rights are absolute rights that, by definition, cannot be restricted.
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Limits of the Protection Scope of the Communication Rights Not all content of an idea falls under the protection scope of the communication rights. There are thoughts which cannot be expressed when the speaker at the same time seeks respect for human rights. These are all thoughts which contently deny the validity of the corresponding human right. A speaker who expresses such thoughts is entangled in a performative contradiction. A performative contradiction renders both the expressed idea and the request for protection by human rights meaningless. The idea cannot be taken seriously and therefore cannot be under the protection scope of a human right (e.g., hate speech).
Performative Contradiction A performative contradiction is a contradiction between a proposition and the speech act by which the proposition is expressed. For example, P requires protection by human rights (= speech act) for their statement that human rights do not exist (= proposition). Someone who demands the protection of human rights
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for their hate speech express in their speech act the recognition of human rights, while at the same time denying the recognition of human rights in what they say. From this analysis follows that hate speech does not fall under the protection scope of the communication rights. From a philosophical point of view, it is not necessary to restrict the protection scope of the communication rights by special restriction clauses in order to oppress hate speech and the like.
The rights that serve to protect intellectual integrity include those that are subsumed under the collective term of communication rights. These are freedom of information, freedom of expression, freedom of assembly, and freedom of association. In addition, some codifications also mention freedom of art and freedom of science, although in the field of art and science it is actually only a matter of special forms of expression and information, but also of assembly and association. For this reason, artistic and scientific freedom will not be discussed further in this textbook.
10.1
The Freedom of Information
In the last two chapters, we saw that the infliction of serious physical or mental harm will first weaken and later destroy the ability of a person to lead their own life on the basis of their own free will. The infliction of serious physical or mental harm of persons is therefore a serious threat to personhood, but not to mere animal cruelty. In this chapter, we will deal with another threat to personhood, namely, the threat to intellectual integrity. First, I want to talk about the right to freedom of information. The ability to create one’s own free will based on one’s own considerations and reflections requires a certain amount of information about the conditions under which one is living. The person must know the conditions of life which they cannot change in order to appropriately accommodate themself to these conditions so as to avoid getting a “bloody nose.” Furthermore, the person must know which conditions of life they can change in order to be able to deliver a reasonable judgement of whether these conditions should be changed.
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10 Manipulation
What happens when the relevant information about the conditions of life is incorrect? The person will avoid changing conditions which, from their point of view, are worth being changed, and they will invest a large effort in order to change conditions which are unchangeable. Although it is possible for a person to create their free will based on incorrect information, it is not possible for them to properly lead their life on the basis of such a flawed free will. In terms of human rights, incorrect information as such is not problematic. Law, morals, and human rights cannot establish living conditions in which the risk of error is completely eliminated. We must live with errors, i.e., with false information. But what should we make of the situation where someone makes decisions based on false information provided by another person who deliberately brought forth such information to manipulate the will of others? Manipulation does not encompass every instance of activity that influences the process of will making of another person. The strategy of influence is manipulative only if it makes the person unable to verify critical truths relating to the information because they have been systematically cut off from all true information that would be suitable for recognizing the truth. What is the relevance of manipulation in the context of human rights? The result of manipulation is that the target person will eventually make decisions for which they are not the actual author. Instead, the authors of the decision are those who manipulated them. The manipulated person may even believe themself to be the author of their life. They too may not suffer from the manipulation because they have no awareness of it. Nevertheless, they are not leading their life on the basis of their own consideration and reflections, but rather on the considerations and reflections of the manipulators. This shows that manipulation is a serious attack to one’s own authenticity through the violation of intellectual integrity. The freedom of information is the freedom from manipulation through the suppression and distortion of information. The right to freedom of information is subject of both Articles 9 and 10 ECHR (see . Fig. 10.1). Article 10 mentions the freedom to receive and impart information and ideas without interference by public authority and regardless of frontiers. This provision guarantees the active (impart) as well as the passive (receive) freedoms of
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. Fig. 10.1 Freedom of information and expression
information. The norm only protects against interferences by public authorities and does not take into account that the freedom of information can also be impaired by private agents. In such formulations, it becomes clear that the traditional view only considered the state as being able to violate human rights and that human rights therefore restrict only the power of the state. So, Article 10 ECHR codifies less than what is necessary in order to completely cover the protection scope of the moral human right to information. The freedom of thoughts (Article 9) refers to the ban of any kind of indoctrination by the state as well as by other institutions and individuals who have the power to do so. Indoctrination is a kind of education that consists of the manipulation of information in order to avoid any critical assessment. Article 10 ECHR further includes the right to freedom of expression. This is a little bit confusing insofar as freedom of expression includes the freedom to impart information. Indeed, this is a duplication in the codification. But expression refers not only to the expression of pieces of information, but beyond that.
10.2
Freedom of Expression
Now I come to freedom of expression. Freedom of expression refers not only to the expression of information, but to a wider range of concepts. We can distinguish between the expression of assertions and questions on the one hand, and the expression of opinions and convictions on the other. Let us first deal with the expression of assertions.
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Assertions
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Questions
Opinions
The protection of intellectual integrity requires the freedom to express assertions. If it is about the expression of assertions that orientate others then we refer to the protection scope of the freedom of information. But the freedom of expression is also important in order to orientate oneself – that is, the sender of the allegation. It is important to understand that the freedom to express assertions does not refer only to the expression of true assertions. It embraces also the expression of assertions which are false. It might be questionable why expressing false assertions should be protected too, because the expression of assertions is a piece of information for others and information is only valuable if it is true. Nevertheless, false assertions are also valuable for the sake of orientation of the sender. This is why the expression of assertions is an instrument of review of what someone holds as true. It is necessary to express what we hold as true so that it becomes possible for others to criticize our allegations. In light of that criticism, we can then correct false assertions and so free ourselves from error. From this follows that the freedom of expression embraces the expression of false allegations which are based on an error, but not false allegation which are based on a lie. Telling lies is not protected by human rights because lies are neither useful to inform others nor useful to orientate oneself. Lies are not necessary but counterproductive to the purpose of leading your life on the basis of your own considerations and reflections. In order to receive a true view of the world so that we become able to lead our life on the basis of our own considerations and reflections, it is also necessary to ask questions. People have been persecuted under many oppressive regimes simply because they ask certain questions, for example questions which refer critically to the content of the public indoctrination. So, it is obvious that there is a need for the protection of the freedom to ask questions. In order to lead our life on the basis of our own considerations and reflections, we need not only the possibility to review the allegations which we hold as true, but also the possibility to review our opinions and convictions which we hold as adequate and appropriate. Only when we can express the result of our considerations and reflections in front of others – and in the light of the criticism of others – is it possible to make an assessment of them in terms of adequateness or appropriateness. The expression of
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opinions and convictions is therefore an essential tool for creating an authentic free will. The distinction between opinion and conviction should make clear that we need the freedom of expression to assess more than just our own considerations and reflections of which we are still not entirely convinced (opinions). This tool is also important with regard to those results of our considerations and reflections of which we are entirely convinced. In the first case, we may express our ideas in order to test them in the light of the public criticism. In the second case, we express them in order to inform others about our own life plans or in order to influence their own process of will making. In the case of a conviction, we are sure that nothing can be criticized. But nevertheless, we know it can. The expression of convictions exposes them to the criticism of others, regardless of whether we intend as much. In any case, this criticism can keep us from building our lives on false ideas.
10.3
Freedom from Censorship
The codified rights to freedom of information as well as to the freedom of expression also cover the ban on censorship. Traditionally, this ban corresponded to the freedom of the press and later to the freedom of radio and television or, in general, to the freedom of so-called mass media. Mass media provides access to a large indefinite and anonymous group of receivers and therefore has a very high grade of effective influence over public opinion. Considering that access to traditional newspapers or TV channels is strongly restricted, the opportunity to spread their messages is restricted to a relatively small group of people. These people have a privileged position which provides them with a certain kind of power. Someone in the position of a journalist who has the opportunity to write articles for the New York Times or the Süddeutsche Zeitung obviously has a higher chance to be heard than ordinary people who can express their opinions only in front of a small group of people who listen to them. That only changed with the Internet. Access to the Internet is hardly restricted and therefore does not provide a particular position of power. Everybody is more or less capable of spreading their messages through the Internet and the chance to be heard is more or less equal for everybody.
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No Protection for Privileges
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In terms of human rights, we have to distinguish between communication platforms which provide a privileged position concerning the chance to be heard by a certain audience, and communication platforms which do not provide such a privileged position. The moral human right to freedom of expression does not protect such privileged positions because they do not protect privileged positions of power over other people. The freedom of the press, including the ban of censorship concerning mass media in a privileged position, can therefore not be considered a human right. It is rather a kind of civic right that is not based on the principle of human dignity but rather on the principle of democracy. The same distinction is relevant in the case of a schoolteacher, for example. Their position to express their opinions in front of the school class is not protected by a human right because this position is a privileged one. The students are coerced to attend school and cannot avoid listening to the teacher. So, they do not have the opportunity of avoiding a confrontation with the teacher’s political or religious opinions. The right to freedom of expression, however, does not only embrace the freedom to speak and to listen, but also the freedom to remain silent or the right to not necessarily be confronted with an opinion that someone does not want to hear. Furthermore, the expression of a political opinion in school classes is unfair and disturbs the free exchange of ideas when the teacher misuses their position and privilege to get attention. Therefore, the school administration may restrict the right of the teacher to express their opinions in front of the school class. 1 But if the teacher distributes political or religious flyers outside the school on the streets, their chance to speak and be heard is exactly the same as anybody else’s. Therefore, their freedom to spread their message on the streets is protected by human rights. This shows that the human right to free expression is very closely connected with a certain standard of equality. Equality here refers to the absence of privileges and to equal chances to express ideas and to be heard.
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Certain political or moral opinions can of course be made a subject of school education. In this case, the teacher is empowered to fight for certain ideas in their classes. But they do not act here in their capacity as a holder of human rights, but as an instrument of the official education policy.
185 10.4 · The Right to Free Assembly and the Right to Free Association
he Right to Free Assembly T and the Right to Free Association
10.4
There are still other human rights that are dedicated to the protection of intellectual integrity. These are in particular the right to free assembly and the right to free association (see . Fig. 10.2). Associations and assemblies are actually media in a wider sense. Therefore, they are to be protected in order to ensure an effective exchange of ideas and to protect individuals against attempts of manipulation and indoctrination. Assemblies as well as associations bring people together so that they can communicate with each other. Assemblies gather people only for a short amount of time, associations stabilize the gathering through time and space and give them a more stable structure. Assemblies – particularly associations – are not only, or necessarily, purely communication platforms. They can also be used to work together in order to shape the world, to create synergy effects, and to effectively change the world. When associations or assemblies do so, they develop activities that go beyond the mere exchange of ideas. Therefore, they are no longer protected by human rights which seek to protect the intellectual integrity. They make use of freedom of action and not the freedom to produce a free will on the basis of one’s own considerations and reflections. The freedom of action has nothing to do with intellectual integrity and is therefore not part of the protection scope of the communication rights. Article 11 ECHR and all the other similar human rights codifications protect assemblies and associations not only in their capacity as communication platforms, but also as means of cooperation. The norm refers expressively to the right to form and to join trade unions. Trade unions are by definition not just communication platforms. Rather, they are organizations in which a certain kind of social power emerges in order to push through appropriate working conditions and an adequate income
Communication Platforms
. Fig. 10.2 Right to assembly and association
Core and Yard
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for its members. The positive law confers certain privileges and guarantees to the existence to the trade unions. This mirrors the relevance of the working class in an industrial society and is thus not a result of philosophical reflection about human rights. As far as the rights relate to freedom of cooperation, i.e., to the freedom of action, they cannot be considered a transformation of a moral human right into a juridical human right. So, we have to state that the codifications use the concepts of assembly and association with a double meaning. The first meaning refers to assemblies and associations as communication platforms, while the second meaning refers to the organization of social agency. Only the first meaning refers to the codification of a moral human right. Only this meaning refers to the principle of human dignity. This example shows again that it is extremely helpful and fruitful to distinguish between the core and the yard of the respective right when interpreting codified human rights. (This issue was already addressed when we found that compulsory vaccination does not affect the core of the human right to bodily integrity, see Sect. 7 8.3). I will not discuss this difference in further detail, but I want to move to another important characteristic of the structure of the codified human rights which plays a particular role in the context of the communication rights.
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10.5 Limiting Clauses
Restriction Clauses
This important characteristic appears in Article 10 (2) ECHR (see . Fig. 10.3). Considering that human rights are derived from the principle of human dignity and that human dignity is an absolute value, it follows that human rights must also be absolute rights. The provision of Article 10 (2) ECHR seems to not be in accordance with this conclusion. It authorizes the state to establish formalities, conditions, restrictions, or penalties that seem to limit the scope of protection of the rights concerned. We could conclude that Article 10 ECHR is not an appropriate codification of the moral human right of freedom of expression and information. The problem of reservations is also encountered in connection with other human rights codified in the ECHR, namely the right to respect for private and family life (Article 8(2)), freedom of religion (Article 9(2)) and freedom of assembly and association
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. Fig. 10.3 Restriction clauses
(Article 11(2)). In the following, the limitations of Article 10 (2) ECHR will be examined by way of an example. The clause distinguishes between formalities, conditions, restrictions, and penalties. Formalities and conditions may not necessarily function as means of limitation, but they can function as such. Let us imagine a law that requires an official permission if a political party wants to attach election posters in public spaces. As long as the permission only depends on the location where they can be fixed, so as to avoid covering road signs or traffic lights or otherwise hampering road traffic, there is no conflict between such a formality and the communication rights. If on the other hand, the permission depends on the content of the election posters, then we are confronted with a severe conflict between the two. This shows that not every conceivable formality can be accepted. Only formalities which do not lead to a restriction of the protection scope may be taken into account. There are also conceivable conditions that do not restrict the right but rather make sure that it is exercised in a way that does not violate the rights of others. So, it is a condition in this meaning to prohibit the expression of a teacher’s political opinion while they are teaching students in school in order to protect the students’ negative freedom of thoughts. As far as the provision mentions penalties, this can also be interpreted in a manner that is consistent with the absolute status of human rights. This is the case where the penalties relate to the violation of provisions concerning admissible formalities or conditions. If provisions about these formalities and conditions are consistent with the
Formalities
Conditions
Penalties
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Statutory Reservation
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Grounds for Restriction.
Confidence.
absolute status of human rights then so too are the sanctions that correspond to violations of these provisions. Now we come to the most problematic part of Article 10 (2) ECHR. It authorizes the state to establish restrictions of the rights mentioned in the first paragraph. The very first condition for restrictions, just as for formal requirements, conditions and penalties, is that they are regulated by law. Restrictions on the scope of protection of communication rights are therefore subject to a legislative proviso. First and foremost, legislative provisory clauses serve the purpose of making restrictions possible only if they are regulated in legal form, i.e., in an abstract- general manner. This ensures that they apply not only to specific individual cases, but in general, i.e., in a large number of abstractly determined cases. This not only prevents arbitrariness but it also tends to weaken the political motivation to restrict rights. For anyone who creates a generally abstract norm in order to use it to suppress certain opinions runs the risk that the same regulation will 1 day be applied against themself and their opinions, precisely because the proviso is formulated in abstract and general terms. The legislative proviso, therefore, does not function as an instrument of restriction, but rather as a hurdle that makes the restriction of rights more difficult. It must therefore be seen as a means of protecting human rights and not as a means by which human rights are threatened. The problem of restriction appears if we analyze the particular components of the list of grounds for restriction. I shall start with the ground for restriction of preventing the disclosure of information received in confidence. Information is confidential when the owner of the information wants to exclude some others from knowledge. This exclusion from information can hinder persons from receiving pieces of information that would help produce their own free will. Exclusion of information can therefore be a means of manipulation. This makes confidentiality problematic. Nevertheless, we have to consider that the maintenance of personhood and the leading of one’s own life based on one’s own considerations and reflections does not require a complete knowledge of everything that could be relevant to make decisions. We are almost always in situations where we have to make decisions under conditions of uncertainty. General rules that define a class of information that can be made into a subject of confidentiality
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reduce the scope of our knowledge, but they do not hinder us from making responsible decisions. A lack of knowledge as such is not manipulation. It only becomes manipulation if the target person is deliberately made to believe that their knowledge is complete and true, although it is neither. As long as the person knows that there is some more information that they are missing, they can deal with this fact by considering the uncertainty of the situation. The legitimacy of confidentiality ends where manipulation starts. This is the case when someone uses the veil of confidence in order to commit crimes or other unlawful behavior. This is the reason why, for example, whistleblowing is not a violation of the legitimate scope of confidentiality. Whistleblowing is permissible because it protects under the frame of freedom of information and freedom of expression. What I said about the question of confidentiality also applies to state secrecy on reasons of national security, territorial integrity, or public safety. Such restrictions do not concern the human right to free communication because they only reduce the scope of our knowledge and force us to decide under uncertainty. It is not a kind of manipulation. But I should make one more remark. There is a huge difference between the admissible scope of confidentiality concerning private individuals or organizations and the admissible scope of confidentiality concerning the state. Confidentiality in favor of private individuals is or can be a matter of human rights, namely the right to privacy that protects persons against inappropriate public control (see next chapter). Confidentiality in favor of the state, however, is not protected by human rights. On the contrary, the possible scope of confidentiality in favor of the state is restricted by the principle of democracy. The state under a democratic constitution has to be a state under public control. The scope of confidentiality that the state can enjoy never covers unconstitutional or unlawful acts of public authorities. They may not hide their activities behind a veil of confidence. I come to the ground for restriction of the protection of the rights of others. The prevention of disorder and crime is not to be considered separately because it serves only the protection of the rights of others. So, we can deal with these grounds for restriction together. Of course, we can imagine types of disorder and crime that have nothing to do with the rights of others. It is possible to conceive of a
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National Security, etc.
Rights of Others
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Reputation
particular opinion as infringing the public order without any connection to the right of others. But a restriction that only oppress such an opinion would be a restriction of the right to expression that can be justified only in rare cases. I will come back to these cases below. But what about the rights of others? Do they justify a restriction of human rights? The most important human right that can be violated through the exercise of the freedom of expression is the right to privacy. In fact, the right to privacy embraces several different human rights. So, it makes more sense to speak about a bundle of rights. Privacy embraces a certain scope of information about a person, which is to be treated confidential not because certain provisions of the law define it as confidential but because it is embraced by the protection scope of the human right to privacy. In order to be able to analyze the possible conflicts between the communication rights and the right to privacy it is necessary to have more knowledge about the latter. This is the topic of the next chapter. Therefore, I will come back to this point in the next chapter. The next ground for restriction is the protection of one’s reputation. Reputation or honor is the image that a person displays in the public and the way a person is perceived by their fellows in society. Public image constitutes the expectations that society addresses to the person concerned. I shall give you an example. An important element of the reputation of a person can be that they are considered reliable. A person who is considered reliable enjoys many advantages because the expectations of society make it easy for the person to pursue their objectives. Therefore, persons are interested in a good reputation. Furthermore, reputation sometimes also constitutes a certain kind of appreciation by society that confirms or even stabilizes the self-esteem of the respective person (not the self-esteem as person but the self-esteem as personality). Both examples show that reputation is a high good for everybody. The question is, however, whether the protection of reputation alone can justify a restriction of the right to freedom of expression. I think it cannot. Nevertheless, we must distinguish between two different possible attacks against the reputation of a person. The first kind of attack replaces a public image that is true with another image that is not true. This is what happens when someone paints a public image of an unreliable
191 10.5 · Restriction Clauses
person although the respective person is reliable. We call such an attack against reputation defamation. The legal oppression or punishment of defamation. is not contrary to human rights. Defamation. is a kind of lie and we have seen that freedom of expression does not embrace the freedom to lie. Nevertheless, not every untrue allegation is a lie. It can also be considered a mere error. And as I said above, freedom of expression embraces the right to express untrue allegations if they are based on an error and not on a lie. Still, the law can require that allegations which may cast doubts on the reputation of someone be expressed very carefully. They are only acceptable if there is some evidence that confirm the doubts. Those who cast doubts on the reputation of another bear the risk of their possible error. It is justified to hold them liable for their error. Laws which provide regulations about this liability can therefore not be considered a restriction of the protection scope of communication rights. They refer only to the yard of these rights and not to the core. Nevertheless, it must be possible to destroy the reputation of someone if the public image of that person is wrong and they do not deserve the good reputation that they enjoy. Restrictions of the freedom of expression in order to protect reputation are only permitted when the destruction of reputation is unjustified, but not against a justified destruction of a reputation that itself is based on a wrong public image. In order to protect the core of the communication rights, we cannot demand that the destruction of reputation only be allowed if there is definitive proof in favor of the claim that the public image of someone is wrong. It must also be possible to express serious doubts if there are serious reasons for believing that the reputation is based on a wrong image. Article 10 (2) ECHR allows the restriction of freedom of thought and information also for the purpose of health protection. Opinions that seriously compromised health protection caused serious problems during the Covid-19 pandemic. Due to such widespread but scientifically unjustified opinions, it has not been possible to establish the “herd immunity” that would have been achievable through a high vaccination rate. Can such a situation justify the suppression of the opinions of the opponents of vaccination? This question cannot be answered unequivocally with yes or no. It rather depends on whether the anti-vaccination propagandists can be convicted of lying, i.e., intentionally spreading
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Protection of Health
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falsehoods, or whether they are merely in error. One may assume that among the opponents of vaccination there are numerous liars. But not everyone who has reservations about Covid vaccination is a liar. Many people are in error because they are ill-informed about the scientific facts. Others do not dispute the scientific facts, but consider them irrelevant because they are guided by certain religious or quasi-religious beliefs that prohibit them from getting vaccinated. This can also be understood as a form of error. Error is not a sufficient reason to suppress an opinion. I can hardly imagine a situation in which the suppression of an honest assertion or opinion can be justified on the grounds of health protection. There is only one way to fight against opinions and beliefs that are dangerous to health: we must fight with arguments in favor of vaccination and do our best to publicly and privately refute the counter-arguments of the opponents of vaccination and expose them as false and dangerous. As long as they are still held, we must endure them. Let me say some words about the ground for restriction of maintenance of the authority and impartiality of the judiciary. One case is the secrecy of the deliberations of the Court. As you may know, judges are obliged to keep secret what is discussed behind closed doors in order to ensure an open discussion of the case among the judges. This is a special case of what we discussed before under the aspect of confidentiality. It is a state secret, the preservation of which does not violate the human right of freedom of information. Nor does this obligation to maintain secrecy violate the freedom of thought of the judges, who are required to maintain the secret. This is only different if the subject of the deliberation and the subsequent adoption of a resolution was a clear perversion of justice, because that is a criminal act for which state organs cannot claim protection of secrecy. In this case, what has been said above for whistleblowers applies to judges who report on this publicly. Another case could be what is called Litigation PR. This refers to the strategic use of media reports to influence a court. There was a famous case recently in Australia concerning the trial to avoid public influence on the court. In December 2018, a court in Melbourne convicted a Cardinal of abusing two choirboys. The court issued a “media gag order” (order of secrecy), according to which it was prohibited to report the sentence in public media in order to avoid any kind of public influence on the jury,
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because the cardinal was accused of additional instances of child abuse. Only in February 2019 did the court decide to lift the order after it was clear that the priest should not be accused of other cases. I think that the authority and impartiality of the judiciary does not justify the restriction of the press in order to reduce the public influence on the judges. Only the protection of privacy of the accused or of witnesses could give reason for an oral hearing where the public is excluded or for the anonymization of judgments. But the authority and impartiality of the judiciary does not provide any justification for the suppression of the right to expression or the freedom of information. What about the restriction ground of morality? Moral opinions or convictions are a matter of free expression and information just as any other content of communication. The suppression of public discussion of moral opinions would lead to the standstill of moral development. There is therefore in general no justification for this ground for restriction. Morality is also not a sufficient ground for restriction when it comes to a display of opinions that seem to be contrary to the common moral feelings. In Turkey, for example, a public demonstration of gays and lesbians was prohibited because the authorities regard homosexuality as immoral. Nevertheless, it seems to be obvious that certain moral preunderstandings and traditions cannot justify a restriction of human rights. Generally, we can state that the ground for restriction of morality was originally associated with sexual morality. It referred to the bigoted and uptight sexual morality of the 1950s when the ECHR was made. In the context of the right to free expression, it was to serve the purpose of suppressing pornography. In 1951, the movie “Die Sünderin” (“The Sinner”) appeared, in which Hildegard Knef could be seen naked for just a second. The authorities prohibited the film but the Federal Administrative Court (BVerwG) considered it as a piece of art under the protection scope of the freedom of art (under Article 5 GG). Nevertheless, we must remember that human rights themselves are a matter of morality. And indeed, there are cases possible where opinions are not compatible with the morality of human rights. Nevertheless, it can be shown that such opinions do not require a restriction of the scope of protection of the communication rights because they simply do not fall under the protection scope of these rights.
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Performative Contradiction
Examples of such opinions are those which typically are expressed in so-called hate speech or opinions that otherwise support racism. The core content of such opinions is the denial of the human dignity of particular persons or groups by reasons of race, nationality, gender, and so on. It can be shown that such opinions do not fall in the protection scope of any human right. In order to do so, we make use of a thought experiment. Imagine an individual who expresses hate speech and is therefore punished. They complain about the punishment and refer to the human right to freedom of expression. What are they doing exactly? They express disrespect about human dignity and human rights with regard to others while at the same time claiming the protection of human dignity and human rights for themself. This is not compatible with the generalized and equiprimordial character of human dignity and human rights. The hate preacher commits what is called a performative contradiction. A performative contradiction is a contradiction between the content of a proposition and the speech act by which the proposition is expressed (see . Fig. 10.4). First, I want to demonstrate it with the following example. Someone says, “I assert that all assertions are false!” Are we supposed to take this statement seriously? No, we cannot take it seriously because the speaker expresses words without any meaning. So, it is not really an expression that is protected by the communication rights, but only an emission of sound that falls under the laws against the emission of noise. What the speaker seems to do, namely, expressing an assertion, includes the claim that true assertions are pos
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. Fig. 10.4 Performative contradiction
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sible. Otherwise, the assertion would not be an assertion. But what the speaker says is that assertions are always untrue. So, they are expressing the following claim: Assertions are always untrue and there are true assertions. This is a contradiction that makes their words senseless. This is exactly what our hate preacher does. They say, “I respect the human rights (with regard to myself) when I express the opinion that I disrespect them (with regard to others).” They deny what they are saying (the disrespect of human rights) through what they are doing (claiming the protection of human rights). It is not possible to take this attitude seriously. It cannot be considered an exercise of freedom of expression. And because it is not an exercise of the freedom of expression, this right cannot be violated by the punishment or suppression of hate speeches. This applies not only to hate speech, but to any statement that denies the personhood of individuals or the absolute value of personhood. As a rule of thumb, statements about a person that do not enable a meaningful response of the person concerned are not protected by the right to free speech. For example, when a speaker calls someone a “pig” or a “filthy cunt,” a meaningful, logical response to begin a constructive dialogue with them does not exist. In other words, it would make no sense to say: “Oh, you’re wrong, I’m not a filthy cunt.” Insults of this kind make the insulted person rather silent. They are no longer respected as a conversation partner. They are not perceived as someone, but only as something. Personal insults like these and similar utterances that deny personhood do not fall within the scope of protection of the right to free thoughts and free speech. As a condition for a restriction on freedom of thought and information, Article 10(2) ECHR states that the restriction must be necessary in a democratic society. According to the wording of the English and French versions, this justification operates independently alongside the other justifications already discussed. The official German translation deviates from this. According to it, necessity in a democratic society does not stand independently alongside the other legitimate purposes of restriction, but represents an additional condition for the restriction of the human right. National security, protection of health, morality and all the other purposes from which restrictions are supposed to be justified only provide sufficient justification if the respective restriction is necessary in a democratic society.
Necessity in a Democratic Society
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Although this reading differs from the authoritative text of the English and French versions, it is the one on which the ECtHR bases its case law. In doing so, it emphasizes above all the criterion of necessity, without placing it in a compelling relationship to democracy. For the Court does not allow it to be sufficient that a restriction is intended to serve one of the legitimate aims of the restriction, but requires that the restriction is also necessary (in a democratic society). Accordingly, what is necessary in a democratic society is what is absolutely necessary to achieve the goal of the respective restriction of the human right. The ECtHR thus places all restrictions on rights under the proviso of the principle of proportionality. According to this reading, the question of the suitability and necessity of the restriction and its appropriateness in relation to the purpose is decisive, while the explicit reference to the principle of democracy plays no particular role. Nevertheless, it is interesting, that the ECtHR very often justifies restrictions of human rights on the basis of the necessity in a democratic society. It has done so, for example, in the case of the burka ban law in France. The Court considered that the ban was a restriction of the right to freedom of religion, but that this restriction can be justified under the ground for restriction of necessity in a democratic society. However, the Court did not explain how a certain piece of fabric that hides the face can damage the process of the public opinion making, the procedures of establishing candidates for parliament or public offices, or the procedures of the election and democratic law making. It would have been more plausible if the Court had referred to public morality in France because the concealment of the face in public in France is, like nudity, considered immoral. But as we have seen above, morality can also not justify a restriction of human rights except in the event that the opinion in question denies respect for human dignity. If one sees in the formula of necessity in a democratic society nothing more than a paraphrase of the principle of proportionality, it must be clear that this principle can only be considered if it is a matter of a restriction of freedom of action, but not if the case falls under human rights insofar as they can be derived from human dignity. Thus,
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the applicability of the principle of proportionality can only be considered if the case falls within the very broad scope of protection of a codified human right, but not within its core scope, which constitutes the actual human right and must be protected absolutely (. Fig. 10.5). We will deal with the principle of proportionality in more detail in 7 Chap. 18. As the example of confidentiality shows, the codified scope of protection of the freedom of thought and information is broader than the scope of protection required by the moral right of the freedom of thought and information. To the extent that limitations are placed by law on the codified scope of protection that do not affect the moral core, there is no objection to this. The freedoms that go beyond the core of moral human rights concern only action and not will. Their restriction is only a restriction of freedom of action, but not a restriction of freedom of will. Restrictions such as the ban on hate speech are also unobjectionable. They do not restrict the scope of protection of the right in question, but merely indicate its conceptual limits. In these cases, the restriction relates to an area that is covered neither by the core nor by the yard of the protected area. What is prohibited is conduct that lies outside the scope of protection.
. Fig. 10.5 “Core” and “Yard” of a positive human right
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The wording does not indicate that the limitation clauses refer only to the yard of human rights and to its conceptual limits. This can only be deduced from their meaning, which can be determined by means of a philosophical analysis. We must read this meaning into the limitation clauses of human rights codifications. They are not intended to place the actual human right under legal reservations, but only the content of the positively defined scope of protection, which goes beyond what human dignity requires. Therefore, it is meaningful and useful to distinguish between the core and the yard of codified human rights. In this way, it is possible to reconcile the unconditionality of human rights with the positivized provisions on reservations of limits. This position allows a criticism of the case law of the ECtHR, which does not make this distinction and considers that necessity in a democratic society refers to the principle of proportionality and even allows a limitation of the core sphere of human rights. Aspects of proportionality can only play a role in the sphere of the “court” of human rights and not in the sphere of the moral core of these rights. ? Do You Still Remember? 1. What is the core function of the communication rights? 2. What is meant by “core” and “yard” of a codified human right? 3. Why is the freedom of a teacher to announce their political or religious opinions and convictions in public schools not protected by moral human rights? 4. What is meant by a Performative Contradiction?
For the answers, see 7 Chap. 21.
Reading Recommendations Alexander, Larry: Is There a Right of Freedom of Expression? Cambridge (UK) 2005 Jay, Martin: The Debate over Performative Contradiction: Habermas versus the Poststructuralists. In Axel Honneth/Thomas McCarthy/ Claus Offe/Albrecht Wellmer (eds.), Philosophical Interventions in the Unfinished Project of Enlightenment, Cambridge (MA) 1992, pp. 261–279 Sadurski, Wojciech: Freedom of Speech and its Limits. Dordrecht 1999
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Case Law BVerwG, jud of 21/12/1954 – I C 14/53 –, “Die Sünderin“, BVerwGE 1, 303 ECtHR jud. of 17/12/2004–33,348/96 –, “Cumpănă and Mazăre v. Romania”, HUDOC ECtHR Jud. of 01/07/2014–43,835/11 –, “S.A.S. v. France“, HUDOC
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he History of Privacy T Rights – 206
11.2
The Need for Privacy – 208
11.3
he Particular Rights T to Privacy in Light of Goffman’s Theory – 210
11.3.1
T he Right to Privacy in One’s Home – 210 The Right to Private Life – 211 The Right to Freedom of Marriage – 211 The Right to Freedom of Establishing a Family – 212 The Right to Family Life – 212 The Right to Privacy in One’s Correspondence – 213 The Right to Data-Protection – 214
11.3.2 11.3.3 11.3.4 11.3.5 11.3.6 11.3.7
11.4
rotection of Social Ties P (“Rootedness”) – 214
11.5
L imiting Clauses of the Codified Human Rights to Privacy – 215 Reading Recommendations – 219
© Springer Nature Switzerland AG 2023 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-031-32292-1_11
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Function of the Privacy Rights
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The core function of the privacy rights is the defense of the freedom of will against self-alienation by fixation on role-identities. In the public sphere, persons must suppress important parts of their personality in order to meet the expectations and ascriptions of society. They do not display their true personality in public, but rather a specially shaped and distorted image of their personality that can be called their role-identity (Erving Goffman). The permanent display of a role-identity leads to the person’s loss of consciousness about who they really are, i.e., about the components of their real personality. They thus become, so to say, a marionette of social expectations and lose the ability to determine themself on the basis of a real understanding of themself. This leads to a systemically distorted process of will-making that cannot be considered authentic. This leads to the state of self-alienation (Goffman). The privacy rights refer to the protection of an authentic will-making process by ensuring a sphere of life in which persons are not forced to display a role-identity. The particular privacy rights refer to particular protected areas of life where persons are not exposed to the public so that they can experience the personality they really are and build a free will on the basis of their real personality. While privacy in general is absolutely needed to protect human dignity, which areas should be defined as areas of privacy depend on the specific social and cultural situation. This is at least partly a matter of positive law.
The Right to Privacy in One’s Home The home is a place of stay that may not be observed from the outside. Inhabitants can behave inside the home without being coerced to play a role in front of a public audience.
The Right to a Private Life The right to a private life (Article 8 ECHR) embraces not only the life inside one’s own flat, but also private activities and communications within the frame of close and intimate relations outside the home (e.g., a private talk on a walk in the park).
203 The Human Right to Privacy
The Right to Freedom of Marriage Freedom of marriage does not only embrace the right to freely choose a spouse and to marry them, but also the right to not being forced to marry (negative right). A person who is forced to get married is deprived of the opportunity to establish an intimate relationship with a sexual partner when they are forced to live with a partner with whom there is no intimate relationship. Thus, the aggrieved person is permanently forced to perform a role-identity in front of the spouse.
The Right to Freedom of Establishing a Family The right to freedom of establishing a family refers to the freedom to choose whether to have children. Considering that the relationship between parents and children is a very intimate one, it would be a severe violation of the right to privacy to force someone to have children or to prevent them from having children (e.g., the one child policy in China).
The Right to Family Life The right to family life protects the close and intimate relation between spouses and between parents and children. Nevertheless, the moral right to privacy encloses any kind of relation where there is a very close and intimate relationship between partners. From a moral point of view, this right does neither depend on certain sexual preferences nor on any sexual character of the relationship. Therefore, protection scope embraces homosexual relationships as well as non-sexual close relationships (parents with their adult children, monks and nuns in a small monastery, intimate residential communities between friends, etc.). The codified protection scope here (family life) is not wider but narrower than the protection scope of the moral human right. This is particularly the case when the term “family” is interpreted as necessarily based on a heterosexual relationship.
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The Right to Privacy in One’s Correspondence The right to privacy in one’s correspondence extends the area of privacy beyond the immediate spatial area of a particular communication to certain types of remote communication. This is due to increasing mobility in the modern world. Many people who are in an intimate relationship live spatially far away from each other and cannot use the protected space of a flat for their communications. There are types of correspondence that do not fall under the protection scope of the moral right to privacy, for example business correspondence. Correspondence is a type of remote communication that traditionally involves sending physical letters. More modern types of remote communication are telecommunication or Internet communication. Which types of remote communication are to be regarded as deserving protection under the right to privacy depends on the technical standards and the life style of the given society in which the communication occurs. It can hardly be only derived from the principle of human dignity and instead requires additional political and practical consideration.
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Right to Data Protection The right to protection of personal data prohibits the collection of personal data that is not permitted by law and for a specific purpose. Additionally, under this right, data may not be collected longer than is necessary to fulfil the stated purposes. It similarly contains the right to be informed about a collection of personal data, the prohibition of using the data for other purposes than the stated purposes, and the right to get access to one’s own personal data.
Right to Freedom of Conscience and Religion Human rights concerning privacy include the right to freedom of conscience and the right to freedom of religion. These two rights are dealt with in separate chapters.
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Social Integration The ECtHR refers to the right to private life in order to protect the social ties of a person that go beyond intimate relations. It is about the “rootedness” of a person in the society. This case law was developed in the context of cases about aliens who were to be expulsed or deported from a country in which they had lived for a long time and where they were well integrated. The Court considers the expulsion or deportation of an alien a violation of private life if the compulsory termination of the stay in the inland is at the same time an uprooting. Uprooting takes place where the sufficiently dense network of social relations is cut off. It is, however, questionable whether the dense network of social relations can be understood as an aspect of the right to privacy. Obviously, such a right has nothing to do with protecting one’s own personality from the threats of permanently displaying role-identities. Perhaps, the aspect of social rootedness can be covered by an unwritten human right sui generis that we could call the Right to Membership or the Right to Affiliation. It is a desideratum of future research to clarify whether such a right can be derived from human dignity.
Statutory Reservations Intrusions into privacy by public security agencies is in accordance with the moral core of the right to privacy only if the hidden sphere of privacy is misused for purposes which have nothing to do with the restitution or maintenance of the real personality of persons. This is the case when privacy is used to commit or to plan crimes. Nevertheless, such intrusion is only justified if the crime or the planning of crimes really occur and not if there is a (false) suspicion of criminal activities. It can also be necessary to intrude into the sphere of privacy against the will of the persons concerned in the event of an emergency—for example, if an epidemic requires removing persons from their flat and into quarantine.
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Nevertheless, in these cases it is always possible to avoid a conflict with the right to privacy. In particular, it is possible to make the impending intrusion known to those concerned in advance so that they may prepare for it by putting on the mask of their role-identity. Clandestine observations in the private sphere are, however, very problematic and hardly justifiable (see case law concerning eavesdropping operations).
11.1
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The History of Privacy Rights
While the history of most classical human rights begins in the 17th or eighteenth century, the right to privacy is a “discovery” of the nineteenth century. The birth certificate of the right to privacy is an essay given by American law professors Samuel D. Warren (1852–1910) and Louis D. Brandeis (1856–1941) published in 1890. The right to privacy is a very good example of how individual human rights respond to specific threats to human dignity based on the conditions of life in a particular age. In the case of the right to privacy, these were the particular threats created by the advent of Yellow Journalism. This phenomenon is again connected with a new technical invention, namely the roll-film and the rapid spread of the Kodak camera developed by George Eastman in 1888. It allowed for snapshots to be taken for the first time and thus the dissemination of pictures from the private lives of celebrities. As a result, the life situation of people who are constantly under public observation was brought to a wider consciousness. That created a sense of the value of privacy. Consequently, Warren and Brandeis demanded a right to privacy. It was not developed from considerations about human dignity. Warren and Brandeis argued, rather, on the basis of traditional common law as it had been developed for centuries by the English courts. So, they argued along the lines of breach of confidence, property rights, and the ban of defamation and the like. The article initially had great influence on the legislation of many US states, which established a right to privacy by statute. In 1928, Brandeis, now a judge on the US Supreme Court,
207 11.1 · The History of Privacy Rights
declared in a dissenting vote that the US Constitution guaranteed a “right to be let alone” (Olmstead v. US). The Supreme Court finally accepted that view in 1967 (Katz v. US). At the level of human rights, the right to privacy already appears in the UDHR (Article 16), in the ICCPR (Article 10), and in Articles 8 and 12 ECHR see . Fig. 11.1). The right to privacy is a general term that embraces several particular human rights. These rights are the following: 55 The Right to Privacy in One’s Home 55 The Right to Private Life 55 The Right to Freedom of Marriage 55 The Right to Freedom of Establishing a Family 55 The Right to Family Life 55 The Right to Privacy in One’s Correspondence
The right to freedom of conscience and the right to freedom of religion are not usually included in the group of rights relating to privacy. However, we will see in the following two chapters that it makes sense to include these rights in the area of privacy.
. Fig. 11.1 Article 8 and 12 ECHR
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11.2
Self-dramatization
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The Need for Privacy
Let me start the analysis of the protection scope of privacy with a reference to a very famous book that was published first in the year 1959: The Presentation of Self in Everyday Life by Erving Goffman. The function and value of privacy can be well explained on the basis and against the background of Goffman’s concept of role-identity. The German sociologist Niklas Luhmann shared a similar approach, which may have been influenced by Goffman. Still, he identified the term privacy with the term human dignity, which is not very useful. Interactions between persons are usually carried out under the condition that the participants of the interaction know far less about each other than they need to know in order to respond appropriately and effectively to the actions of other participants. In the absence of sufficient information, they therefore rely on the impressions that they can gain from the other participants. In other words, they rely on the image they have of them. Considering that each participant in an interaction knows that everyone is dependent on the impressions that each make on another, participants are motivated to behave in a way so that they cause the impression that they intend to cause, so that they will be treated by others the way they want to be treated. So, a given participant will put themself in scene and perform a self-dramatization. The impression that someone performs is perceived by the others as an allegation, namely an allegation that the performer is in reality as they appear to be. At the same time, the performance is considered a promise, namely the promise to behave permanently and constantly in accordance with the displayed personality. Nevertheless, the allegation that the participant is the personality which is displayed through the performance, so that others may rely on it, is always fundamentally false. Indeed, persons are spontaneously determined by affects, moods, mental and emotional impulses, and uncontrolled bodily reactions that are largely subject to unforeseeable fluctuations. People who behave in accordance with their spontaneous impulses leave no impression of a consistent and coherent personality whose behavior is sufficiently predictable so that others may count on it in everyday interactions. They tend to act like small children who are guided by their spontaneous emotions, moods, and
209 11.2 · The Need for Privacy
impulses, and are therefore not taken seriously as a partner of an interaction between adults. In order to ensure a successful interaction, participants must thus suppress their spontaneous emotions, moods, and impulses. This has the consequence that the impression they display does not correspond to what they really are, but is rather a mask behind which they play a role in front of spectators. So, participants in an interaction always play theatre in front of each other. The staging follows a specific role with which actors consciously or subconsciously identify themselves in the manner that they want to be seen by the audience (= the other partners of the interactions). Now comes the crucial point. The necessity of always having to play a role in interpersonal interactions can lead to the result that the individual inadvertently internalizes the role in such a way as to no longer being able to distinguish between their true self and their role-self. In such cases, the individual is not only the performer, but at the same time, the spectator of their own performance. They consider the impression of themself, which they perform in front of others, as the only reality of themself. They become part of their own audience. This only occurs when they hide all the discreditable facts about themself from their own awareness. In such a case, there will be some important aspects of their personality that they are no longer aware of and therefore deny. Goffman calls this the state of self-alienation. In the state of self-alienation, the individual can no longer determine their own life according to their own will and their own values. They no longer lead their life—rather it is led by the ascriptions and expectations of the audience for whom they play this role. At this point, privacy comes into the play. In order to avoid self-alienation and to maintain the awareness of one’s real personality, it is necessary to not reside permanently on a “stage.” Thus, in addition to the interaction space of the stage, there must be a space that Goffman calls “backstage.” In contrast to the situation on the stage, the audience is excluded from the backstage. Social interaction does not take place here or is reduced to a minimum. The individual remains unobserved and is not forced to perform a role. Here, the individual can relax from all the efforts that come along with the maintenance of role identity. They can unwind and “fall out of character”; they can drop the mask, loosen their self-control, and behave exactly equivalent to their spontaneous affects, emotions, impulses, and moods. In this way, we can experi-
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ence ourselves as we really are. From this experience, we can build a distance to the roles that we have to play on the stages of life. This distance allows us to take positions in relation to the roles that we play. We can reflect on our roles or modify them, test them, and try to practice new roles. Thus, the individual is able to lead their own life on the basis of their own authentic considerations and reflections and not become a passive plaything of alien ascriptions and expectations. What Goffman calls the backstage is what is meant by privacy. Privacy refers to a certain sphere of life that is hidden from the views of others. The scope of this sphere must be exactly as large as is necessary and sufficient to make it possible to loosen self-control and to be the personality that a person really is, including all the aspects that cannot be displayed in public. The requisite extent of privacy depends on the number of efforts a person has to invest in order to play their role. This is why the extent of the sphere of privacy depends on the overall social situation.
11.3
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he Particular Rights to Privacy in Light T of Goffman’s Theory
Against the background of Goffman’s theory, it is easy to understand the function of the particular privacy rights. 11.3.1 Home
The Right to Privacy in One’s Home
The home is a place of stay that may not be observed from the outside. Inhabitants can behave inside the flat without being coerced to play a role in front of a public audience. The flat is surrounded by walls and is therefore not visible without particular effort, for example, the clandestine installation of cameras or microphones. The right to privacy in one’s home includes the prohibition against penetrating the flat without the consent of the owner. This is what traditionally is called the domestic peace.
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11.3.2
The Right to Private Life
Private life embraces not only the life inside one’s flat, but also a certain behavior outside the home, in particular, close and intimate communication with other people. So, privacy protects, for example, a private talk with another person during a walk. This shows that privacy relates to more than just the individual when they are alone. It also embraces close and private relationships with other people. The ECtHR decided, for example, that the Princess of Monaco can claim a certain sphere of privacy in the middle of the public, e.g., when she is sitting in a restaurant with her family. Another very important example for the protection of privacy while standing in public is the prohibition of permanent surveillance of employees by cameras during their worktime. The right to private life also embraces the impenetrability of one’s body. Therefore, body scanning without the consent of the person concerned is a violation of privacy. Involuntary drug and alcohol testing or involuntary blood sampling for the detection of drug use also fall under the protection scope of privacy. Investigations that seek to determine the sexual orientation of a person against their will or without their consent is another example. 11.3.3
Private Life
The Right to Freedom of Marriage
Freedom of marriage does not only embrace the right to freely choose a spouse and marry them, but also the right to not being forced to marry. A person who is forced to get married is deprived of the opportunity to establish an intimate relationship with a sexual partner because they are forced to live with a partner with whom there is no intimate relationship. Having an intimate relationship, after all, requires that a person have the opportunity to freely choose their partner. Otherwise, the partner is and remains a “stranger in my bed” in front of whom the coerced person must play a role. Forced marriage therefore leads to the absence of privacy.
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11.3.4
Family
The right to freedom of establishing a family refers to the freedom to choose whether or not to have children. Considering that the relationship between parents and children is a very intimate one, it would be a severe violation of the right to privacy to force someone to have children or to otherwise hinder their attempts at having children—for example, the former one-child-policy in China. 11.3.5
Intimate Relations
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Meaning of Family
he Right to Freedom of Establishing T a Family
The Right to Family Life
The right to family life protects the close and intimate relation between spouses and between parents and children. Nevertheless, there are of course also other intimate relations that fall under the protection scope of the moral right to privacy. From a moral point of view, this right also covers close homosexual relationships and non-sexual close relationships (for example, parents with their adult children, monks and nuns in a small monastery, intimate residential communities between friends, etc.). The codified protection scope here is not broader, but narrower than the protection scope of the super-positive moral human right. Therefore, it is up to human rights courts to extend the protection scope to these types of relations. Because the protection of family life is not about protecting an institution, but about enabling the members of a close and intimate life relationship to retreat into private life together. They will do so if they have an appropriate understanding of the core function of the right to privacy. This point gives us the opportunity to consider whether courts have the constitutional competence to widen the meaning of the concept “family” in order to cover other forms of intimate relations according to what is demanded by human dignity. The German Federal Constitutional Court (BVerfG) is here in a privileged position because it can ground any such decision on Article 1 of the German Constitution, which contains the human dignity principle. So, it is no problem for the BVerfG to refer directly to this principle. The ECHR does not contain a reference to the principle of human dignity. Therefore, it is a little bit more difficult for the ECtHR to find a basis of legitimization for
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widening the protection scope of codified human rights. Nevertheless, it is not impossible. According to the case law of the ECtHR, the ECHR is to be interpreted as a “living instrument.” This means that the appropriate understanding of the convention and its particular articles is something that depends on the development of the prevailing cultural and moral consciousness. Therefore, the meaning of the human rights codifications cannot simply be found by asking for the historical background at the time in which the codifications were drafted. The meaning of the codified human rights, rather, should follow the currently prevailing understanding of society with respect to our moral duties and rights. This allows for widening the meaning of the concept of family beyond the traditional understanding. The doctrine of the codified human rights as living instruments is an entrance gate that makes it possible to make philosophical arguments influential in the case law relating the ECHR. Philosophical analyses can contribute to a deeper understanding of the meaning of human rights. These considerations show that the legal accessibility of same sex marriage is not only a matter of legal discretion and political influence, but also primarily a question of human rights. 11.3.6
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Living Instrument
he Right to Privacy in One’s T Correspondence
The right to privacy in one’s correspondence extends the area of privacy beyond the immediate spatial area of the communication in accordance with the type of remote communication. This is due to the increasing mobility of the modern world. Many people who are in an intimate relationship live far away from each other and cannot use the protected space of a flat for their communication. They thus depend on remote communication. Correspondence is a type of remote communication that traditionally involves sending physical letters. More modern types of remote communication are telecommunication or Internet communication. Which types of remote communication are to be regarded as deserving protection under the right to privacy depend on the technical standards and the life style of a given society. Such can hardly be only derived from the principle of human dignity and
Remote Communication
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instead requires political and practical considerations. Here we find another example for the ECHR as a living instrument. 11.3.7
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The Right to Data-Protection
After all, control over one’s own personal data (right to informational self-determination) is a particularly important aspect of the right to privacy in our days. It was established for the first time by a statute of the German state of Hesse in 1970 and recognized as a constitutional human right by a decision of the Federal Constitutional Court in 1983. On the supra-national level, it was codified as a human right in Article 8 of the Charter of Fundamental Rights of the European Union of 2007. In 2008, the ECtHR confirmed the right to the protection of personal data as derived from Article 8 ECHR. The protection of personal data is intended to prevent persons from losing their ability to determine themselves from their own considerations and reflections, from having, as it were, “the scissors in their head” because they “cannot determine with sufficient certainty what kind of personal information is known to certain parts of their social environment, and if it is difficult to ascertain what kind of information potential communication partners are privy to”. The Federal Constitutional Court has rightly stated that such a person may be consciously or unconsciously inhibited in their freedom “to make self- determined plans and decisions” (BVerfGE 65, 1, 41). Therefore, there is a human right to protection against unlimited collection, storage, use and disclosure of one’s personal data. Everyone has the right to know at all times who knows what about them, when and on what occasion.
11.4
Protection of Social Ties (“Rootedness”)
The ECtHR also addresses the protection scope of private life in cases concerning wider social relationships. According to this case law, the compulsory termination of a foreigner’s stay in the inland may be a violation of private life if the expulsion or deportation is at the same time an “uprooting” where the foreigner is cut off from their wider social relations. Such cases include, for example, where children are cut off from their school classes and
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their relationships with classmates, or where foreigners are cut off from their football team or their integrated role in a team of colleagues at the work place. Nevertheless, social relations at the work place, at school, or in a football team are just the opposite of what is meant by the “backstage” of privacy. Cutting off such relations can hardly be considered the interruption of very close and intimate relations. In fact, the ECtHR has “discovered” a new and unwritten right here, whose scope of protection is fundamentally different from that of privacy. It is therefore difficult to assign this right to the protection scope of Article 8 ECHR. I think it would be much clearer to speak of an unwritten right, namely the right to membership or the right to affiliation. However, for such a right to be covered by the jurisdiction of the ECtHR, it would have to be attributable to a codified right of the ECHR. Perhaps Article 3 of the First Additional Protocol to the ECHR of 1952 (right to free elections) or Article 3 of the Fourth Additional Protocol of 1963 (prohibition of expulsion of own nationals) or Article 1 of the Seventh Additional Protocol of 1984 (protection against expulsion) could be considered.
11.5
imiting Clauses of the Codified Human L Rights to Privacy
Now we know what is meant by privacy and why and to what extent it is a required condition for the maintenance of personhood. So, let us move on to the codified provisions concerning possible restrictions. Article 12 ECHR (the right to marry and to establish a family) contains the phrase “according to the national laws governing the exercise of this right.” This clause does not necessarily have to be considered as a limitation clause. It can also be understood as a reservation of formality, according to which it is permitted to regulate by law the procedure and form according to which marriages are to be contracted. However, there is a substantive restriction on the right to marry insofar as states prohibit multiple marriages (polygamy) by law and thus deny a married person the right to enter into another marriage. One will only be able to solve this problem adequately in terms of human rights
Formalities of Marriage
Polygamy
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if one distinguishes between marriages which, by their structure, are not intimate partnerships and those which cannot be denied recognition as intimate partnerships. Traditional polygamous marriage, as is common in some Islamic countries, is probably more likely to belong to the former group, so that in this respect the question of the protection of privacy should not arise. But the possibility of polygamous intimate cohabitation cannot be excluded from the outset. Article 8 (2) ECHR, however, contains a restriction clause that is as far encompassing as the restriction clauses of the communication rights (see 7 Chap. 10). It is thus necessary to examine in detail the extent to which it addresses meaningful demarcations between the core and the yard of human rights or whether it is, in fact, about a non-acceptable license to interfere with the core of the human rights. Article 8 (2) empowers public authorities to interference with the rights to privacy under certain conditions. Provided that public authorities act in accordance with the law, they may interfere for the following reasons: 55 Interest of national security or public safety 55 Protection of the rights and freedoms of others 55 Prevention of disorder or crime 55 Protection of health 55 Economic wellbeing of the country 55 Protection of morals 55 Necessity in a democratic society
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Statutory Reservation
National Security, etc.
As noted above (see 7 Sect. 10.5), the enumerated grounds for restriction are only applicable when public authority acts in accordance with the law. This provision refers to a statutory reservation. Everything that I have said about similar clauses in the context of the communication rights applies here as well. So, let us instead focus on the restriction clauses themselves. The ground for restriction of the interest of national security and public safety as well as the prevention of disorder and crime and the protection of the rights and freedoms of others refer more or less to the same purpose. They can deliver a justification for invading the scope of privacy if this hidden sphere is misused. We can speak about a misuse if the private sphere does not serve the purpose of providing a space for recovery from the efforts of public representation on the stage, and instead is used as a space to plan or commit crimes. The preparation or the commis
217 11.5 · Limiting Clauses of the Codified Human Rights to Privacy
sion of crime is neither necessary nor sufficient for this recovery. Therefore, the function of privacy is not interfered by an intervention in the private sphere for the purpose of preventing crime. Engagement with the absolutely protected core area of human rights does not take place. Nevertheless, this only applies if a misuse really happens, not just when there is only a suspicion of criminal activities that turns out to be false. A misuse of privacy can only be considered as such if the planning or commission of crimes is not only a small side-effect that occurs within the frame of private life. The intrusion into privacy is therefore no violation of the core area of the human right of privacy where criminal activities play a dominant role. We can thus only accept such interference in cases of very serious crimes. The conflict between the protection of privacy and the prevention of crimes particularly occurs where intrusion into the private sphere has to be clandestine in order to be successful. An extremely hard case is the case of eavesdropping operations. An eavesdropping attack consists of the continuous clandestine observation of a private flat by means of electronic devices, where everything that happens in the flat is recorded. The inhabitants of the flat are not aware of the operation and therefore cannot behave in an appropriate manner. They behave as though they were in the backstage, while in truth remaining on the stage. The German Federal Constitutional Court holds the opinion that eavesdropping operations are nevertheless in accordance with the human right to privacy if the records, which refer only to the private activities, are deleted immediately so that afterwards only the criminal activities are on the records. Still, it is unavoidable that policemen will first have to listen to the private activities before they can delete them. Therefore, eavesdropping operations seems to me to be only marginally justifiable, if at all. In the conflict between public security and the human right to privacy, we must decide which is more important. I think security is not a value as such. Security is rather the security of human rights. Therefore, we cannot balance security with human rights. It makes no sense to defend a good by destroying it. Much less problematic is the invasion into privacy when the person concerned is aware of the situation. In this case, the person can behave adequately by displaying a role on the stage. So, when the policemen knock at the
Eavesdropping Operations
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Protection of Health
Economic Wellbeing of the Country
11 Morality
door and demand entry, there is in principle no conflict between privacy and the prevention of crimes. In the case of the protection of health, I cannot imagine a case in which it would be necessary to secretly invade privacy. There could be cases in which it is necessary to penetrate a flat in order to quarantine people with infectious diseases against their will. But there is no reason to do that secretly. It is therefore always possible to avoid the conflict between the right to privacy and the protection of health. The economic wellbeing of the country can never provide a justification for an intervention into privacy. There are cases where the destruction of flats and the resulting homelessness of the inhabitants were justified under the mantle of the economic wellbeing of the country. The building of sport stadiums or shopping centers or factories are considered necessary for the economic wellbeing of the country and serve as justification for the deprivation of privacy. It is obvious that this kind of justification cannot be convincing. A different case is where the state offers alternative appropriate accommodation. Such does not result in a conflict between the human right to privacy and the economic interests of the country. So, expelling people from their home in order to set up mines or water reservoirs may be justifiable if the state provides an alternative accommodation. The protection of morals can never justify an intervention into privacy. Human rights do not find their limit in the protection of morality, because they are themselves founded in morality (human dignity). Therefore, there is no imaginable case where the protection of morality as such could justify an intervention into the right to privacy. As you might remember, in the last 7 Chap. I mentioned that the ground for restriction of the protection of morals can be understood only before the background of the bigoted and uptight sexual morality of the 1950s. Morality in such a context only means sexual morality. Thus, it is not surprising that the reservation of the protection of morality within the framework of privacy always comes into play when sexual interactions are to be disturbed or suppressed. Thus, as recently as 2008, the BVerfG confirmed the punishability of sibling incest (Section 173 (2) Criminal Code) explicitly with reference to a “culturally and historically founded, still effective social conviction of the punishability of incest,” i.e., explicitly on moral grounds. The same applies to the punishability of plural marriage
219 Reading Recommendations
(bigamy /polygamy- Section 172 Criminal Code). In 1992, the EComHR invoked the “Christian based monogamous culture” to justify it. Moral motives can dominate legislation only if the core area of human rights is not affected, but only that marginal area which, in the case of broadly defined human rights norms, can be regarded as the “yard” of human rights. I will return to this in 7 Chap. 20. I have said everything about the ground for restriction of the necessity in a democratic society in the last chapter and, accordingly, it is not necessary to repeat that discussion. So, we have seen that the right to privacy, like the right of free expression, embraces a wider protection scope than is required by the principle of human dignity. So far, as the protection scope embraces areas beyond the scope of human dignity, i.e., beyond the conditions of personhood, restrictions are possible because we are dealing here with a simple positive right. But insofar as the right to privacy can be derived from the principle of human dignity, it must be recognized as absolute. Under such a conception, the right to privacy would not allow any restrictions.
? Do You Still Remember? 1. What is the core function of the rights to privacy? 2. Why can forced marriage be considered a violation of the rights to privacy? 3. Why is it problematic to consider the relations between a foreigner and the society of the host country as a matter of privacy? 4. Why is the protection of morals not a justified reason for a restriction of the rights to privacy?
For the answers, see 7 Chap. 21.
Reading Recommendations Goffman, Erving: The Presentation of Self in Everyday Life. Edinburgh 1956. http://monoskop.org/images/1/19/Goffman_Erving_The_ Presentation_of_Self_in_Everyday_Life.pdf Geuss, Raymond: Private Goods. Princeton 2001. Luhmann, Niklas: Grundrechte als Institution. Ein Beitrag zur politischen Soziologie. fourth ed. Berlin 1999 Wacks, Raymond: Privacy. A Very Short Introduction. second ed. Oxford 2015 Warren, Samuel D. / Brandeis, Louis D.: The Right to Privacy. In Harvard Law Review, 4/5 (1890), pp. 193–220. – https://www.cs. cornell.edu/~shmat/courses/cs5436/warren-brandeis.pdf
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Case Law BVerfG, judg. of 15/12/1983, 1 BvR 209/83 –, BVerfGE 65, 1 (Volkszählung) BVerfG, judg. of 03/03/2004–1 BvR 2378/98 –, BVerfGE 109, 279 (eavesdropping attacks) BVerfG, d. of. 26/02/2008–2 BvR 293/07 –, BVerfGE 120, 224 (Incest) EComHR d. of 26/06/1992–19,628/92 –, Bibi v UK, https://www.stradalex.com/en/sl_src_publ_jur_int/document/echr_19628-92 ECtHR judg. of 25/04/1978–5856/72 –, Tyrer v UK, HUDOC (living instrument) ECtHR judg. of 24/06/2004–59,320/00 –, Caroline von Hannover v. Germany, HUDOC (privacy in public) ECtHR jugd. of 18/10/2006–5856/72 –, Üner v. The Netherlands (rootedness) ECtHR judg. of 17/07/2008–20,511/03 –, I v. Finland (data protection) US Supreme Court, Olmstead v. United States, 277 U.S. 438 (1928) US Supreme Court, Katz v. United States, 398 U.S. 347 (1967)
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he History of the Legal T Concept “Conscience” – 224
12.2
The Mechanism of Conscience – 228
12.3
I s the Right to Freedom of Conscience a Human Right? – 232 Reading Recommendations – 236
© Springer Nature Switzerland AG 2023 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-031-32292-1_12
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The History of the Concept “Conscience”
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Conscience as a legal concept appeared for the first time in the treaties of Westphalia of 1648, thus terminating the Thirty Years’ War in central Europe. In order to avoid further religious wars, the contracting parties accepted the freedom of their subjects to exercise their religion according to their own free conscience (“conscientia libera”). The drafters of the treaty considered conscience as a kind of inner organ by which individuals are able to conceive the commandments of God. These commandments referred to the way worship should be celebrated as well as to the way believers should treat their fellow humans (moral rules). In the time of the Enlightenment, philosophers considered rules of worship more or less irrational and the rules of morality as commandments of reason. This led to a change in the meaning of the concept of conscience. Conscience no longer referred to the commandments of God, but to the commandments of reason concerning the moral duties toward fellow humans. The connection between religion and conscience was cut off (Samuel Pufendorf, Christian Thomasius). Christian Wolff and Immanuel Kant distinguished further between morality and law. Both refer to the duties toward fellow humans, but the moral duties are duties toward oneself due to the own conscience while the legal duties are duties toward the community due to the laws of the community. Further progress of the history was characterized by a confusion between the older concept of conscience from the time of the Reformation and the more recent concept of conscience from the time of the Enlightenment. This confusion is made clear by the fact that, in most codifications, conscience and religion are still closely related to each other. In the year 1960, the BVerfG made a clear distinction between the legal concepts of conscience and religion for the first time.
223 The Right to Freedom of Conscience
Definition of the Concept “Conscience” Conscience is (1) the knowledge of the standards of morality and (2) the conviction of being bound by them through identification. Moral standards are standards of being a “good” human being (like standards of legal counseling are standards of being a “good” lawyer). A person who is acting or has acted against moral standards to which they feel bound will reject themself as a human being because they consider themself as someone who is “not good at their job” as a human being (just as a lawyer who fails to competently provide legal counsel will reject themself as a lawyer because they are not good at their job). Moral shame is the reaction of self-rejection because of a personal deficiency relating to moral standards. In order to avoid the feeling of moral shame, the respective person is forced to cease being a human being (like the incompetent lawyer is forced to cease being a lawyer in order to avoid professional shame). The only way to give up being a human being is suicide. In order to avoid suicide, most human beings choose strategies of coping with moral shame, namely transforming shame into feelings of guilt or flights into neurotic displacements.
The Function of the Right to Freedom of Conscience The core function of the right to freedom of conscience is the defense of the freedom of will against a feeling of moral shame from which the person concerned can only escape by suicide or by neurotic self-alienation. Freedom of conscience is the freedom from the coercion to act contrary to one’s own moral convictions. A person who is coerced to act contrary to their own conscience cannot transform the feeling of shame into a feeling of guilt because it is not possible to regret an evil action while being forced to commit the evil act in question. The freedom of conscience embraces only the right to reject any kind of cooperation that is considered evil by the person concerned. It does not embrace the right to hinder others in doing what the person concerned considers evil. Freedom of conscience does not establish a moral power over other agents and their actions, but only moral power over oneself and one’s own actions.
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The Right to Freedom of Conscience as a Privacy Right The right to the freedom of conscience belongs to the group of privacy rights. It refers to the relation of a person with themself as a moral entity. Its function is the protection of this self-relation.
12.1
Peace of Westphalia
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he History of the Legal Concept T “Conscience”
In this chapter, I want to deal with the right to freedom of conscience. It is interesting to note that national and international codifications on human rights always address this right in the context of the right to religion. This becomes understandable when we consider the history of that right. The concept of “Conscience” as a legal concept first appeared in the Peace of Westphalia of 1648, which ended the Thirty Years’ War (1618–1648. This was primarily a religious war between the Catholics and the Protestants of Central Europe, in particular in Germany. One of the most important aims of the Peace of Westphalia was to end the war and establish rules for living together for the two Christian denominations in order to avoid future wars based on religious reasons. Therefore, the contracting parties accepted the freedom of their subjects to exercise religion according to their own “conscience.” The Peace of Westphalia guaranteed the freedom to exercise the religious rites that correspond to one’s own conscience in private and in public. The drafters of the two peace treaties considered conscience a kind of inner organ which is able to conceive the commandments of God (see . Fig. 12.1). These commandments referred to the way worship should be celebrated as well as to the way believers should treat their fellow humans. Conscience was therefore considered an organ that can receive knowledge about ritual as well as moral rules. The disagreements between the Christian denominations referred only to rules of rites and their attending theological ideas, and not to questions of morality. In terms of morality, there was no relevant difference between Catholics and Protestants. This was the reason
225 12.1 · The History of the Legal Concept “Conscience”
. Fig. 12.1 Listen to God’s commandments
why the matter of the freedom of conscience was more or less identified with the freedom of religious rites (in the frame of Catholicism and Protestantism). Only a 100 years later in the time of the Enlightenment did this understanding of conscience became questionable. First, philosophers realized that it is quite strange that Catholics and Protestants claim to hear the voice of God while hearing different things. The idea of conscience as an inner organ by which it is possible to receive messages from God became more and more implausible (Locke). The philosophers Samuel Pufendorf (1632–1694) and Christian Thomasius (1655–1728) were the first who distinguished between religion, morality, and law. According to their opinion, religion refers to the duties toward God and morality refers to the rules toward oneself, while law refers to duties towards the community and towards fellow humans. Immanuel Kant (1724–1804) distinguished further between morality and law, but for him the content of morality refers also to the community and to fellow humans. Only the reason behind the binding power of moral rules and legal rules is different. Moral rules are rules toward oneself which are to be fulfilled toward others. Legal rules are duties toward the community which are also to be fulfilled toward others. The German philosophers Christian Wolff (1679– 1754) and Immanuel Kant claimed that conscience is not an organ by which we can receive information from outside, but that it is part of our reason. In conscience, the
Enlightenment
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Romanticism
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voice of reason is heard. The philosophy of the Enlightenment was strongly focused on whether and to what extent it is possible to derive the moral rules from principles of reason. Rules concerning religious rites were considered quite irrational and delusional. This public reasoning about morality and religion led to a change of meaning of the concept of conscience. Conscience no longer had to do with religion or with the voice of God, but rather with morality and the voice of reason. A concept that correctly expressed the capacity to understand the religious rules of rituals and worship was no longer needed because the philosophers of the Enlightenment considered such rules as complete nonsense and superstition. Only in the age of Romanticism, which lasted from the 80s of the 18th century until the mid-19th century, did considerations about religion change again. The age of Romanticism was a cultural movement in Central Europe that affected all kinds of art (literature, painting, music) and had its center in Germany. Philosophy was not so emphasized in this age because philosophy is something related to reason while the spirit of the Romanticism was very critical of reason. Particularly the results of the French Revolution, which ended not in a rational state of freedom and equality but rather in a state of irrational terrorism, led to this development. Irrationality in the form of feelings, emotions, and impressions became the focus of interest. Consequently, it is easy to understand that religion was taken more seriously than before. Religious rituals were again considered something important and valuable. Nevertheless, as the occupation of the concept through the philosophy of the Enlightenment was too strong, it was not possible to re-establish the former meaning of conscience as it was understood in the time before the age of the Enlightenment. This situation became a problem when the State of Belgium was founded in the year 1830 and the Belgians had to draft a new Constitution (see . Fig. 12.2). They wanted to protect the free exercise of religion, but they could not use the term “conscience” in order to avoid the confusion associated with the concept of conscience after its treatment by Enlightenment philosophy. So, they found a completely new formula. This formula refers firstly to the freedom of worship and secondly to the freedom of expression. The first refers to religious practice while the
227 12.1 · The History of the Legal Concept “Conscience”
. Fig. 12.2 Article 14 Belgian constitution of 7. Feb 1831
. Fig. 12.3 Article 9 (1) ECHR
latter refers to opinions of all matters, including, of course, religious matters. The concept of conscience was completely avoided. This new formula was partly taken over by the German Constitution of the Paulskirche of 1848 and the Prussian Constitution of 1850. In contrast to the Belgian Constitution, the new language took over the traditional formula of “faith and conscience”, respectively “conscience and religion,” and added the new aspect of free exercise of religion. This new wording became part of the German stock of traditional constitutional formulas and is now part of Article 4 GG. After World War II, it found its way into the international human rights instruments including Article 9 ECHR (see . Fig. 12.3). Here we again find the twin formula of “conscience and religion” and the additional explanation of what is meant by this formula. Despite this history, the concept conscience provokes much confusion today, specifically as to the meaning and the differences between religion and conscience. In Germany, this confusion lasted until 1960 when the German Federal Constitutional Court, for the first time anywhere in the world – as far as I can see, distinguished the meaning of conscience from the meaning of religion and religious practice. Up to this date, the importance of the concept of conscience as a legal concept was not clear. It was debated whether it must be interpreted in the meaning of the age of Enlightenment, or in the meaning of the
Twin Formula
Definition of “Conscience”
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age of the Reformation. So, we find case law of the ECtHR that still does not differentiate between religion and conscience. In a judgment of 2013, the Court says that “[r]eligious freedom is primarily a matter of individual thought and conscience.” In contrast to this confusion, the BVerfG distinguishes precisely between religion and conscience by the following definition of the term “conscience”: “‘Conscientious decision’ is any serious moral, i.e., based on the categories of ‘Good’ and ‘Evil’, decision, which is internally experienced by the individual concerned as binding and as unconditionally obligating them in a certain situation, so that they cannot act against it without having serious moral distress.” This definition shows that conscience does not have anything to do with being religious or not religious or with obedience or disobedience toward rules of worship, but rather that it is about good and evil only. It refers to moral judgments and to the conviction of being bound to these judgments.
12.2
12 Shame
The Mechanism of Conscience
The BVerfG stated that moral judgments, which are based on good and evil, lead to the sense of binding that appears in the serious distress that we feel when we act contrary to such judgments. What is it about this distress? Can we describe it more in detail? Yes, we can. The original kind of serious moral distress is the feeling of shame. The feeling of shame was already a touched upon in the sixth chapter when we were considering whether it is possible for a person to be aware of their own personhood and at the same time deny the personhood of others. We said that it is possible, but nevertheless causes the feeling of moral shame which is a very serious kind of suffering. I think it makes sense to analyze the feeling of shame again and in more detail. This is necessary in order to adequately understand the function and relevance of the freedom of conscience. You will see that I do some repetitions, but I will also add some new aspects which can make things clearer. Shame occurs not only as a reaction to moral failure. It can also occur in situations that have nothing to do with morality. In general, we can say that shame occurs if we feel rejected by others because they are aware of a serious deficiency that we have. So, shame is the reaction to a cer-
229 12.2 · The Mechanism of Conscience
tain attitude of others toward ourselves. This is the attitude of rejection. We feel shame in front of others who reject us. I set aside the very problematic case of shame that is not based on a real rejection by others, but only on our wrongly perceived belief of being rejected by others. Shame can be based on an error but it can also be based on a realistic assessment of the situation. For our purpose, it is sufficient to only address the cases of “realistic shame.” It is important to understand that the rejection by others alone is not sufficient for shame. Shame occurs only if a second element takes place. This second element is constitutive. Others who qualify us as having deficiencies use a certain standard of qualification according to which they can judge whether we have deficiencies. Shame occurs only if we share these very standards. The rejection by others lead only to feelings of shame if the awareness of being rejected reminds us that we reject ourselves because we share the opinion that we have important deficiencies. I will give you some examples. We feel shame if someone else rejects us because of our hair color or our body shape and if we share the opinion that our hair color or our body shape is deficient or otherwise not what it should be. If we feel rejected by others because they are not satisfied about the work that we have done, we feel shame if we share the opinion that we failed to do our work correctly. If we feel rejected by someone with whom we felt love, then we feel shame if we share the opinion that we really are not worth being loved. Considering that shame occurs only when we share the standard of qualification according to which we show deficiencies, it is possible to feel shame although there is nobody outside of ourselves who rejects us. We can feel shame simply because we reject ourselves. What is true for all kinds of non-moral shame is also true for moral shame. We do not feel moral shame only because we are blamed by others for acting contrary to moral standards. We feel moral shame only if we act contrary to the moral standards that we share with others. The standards of morality can cause moral shame only if they are integrated in our conscience. Conscience is (1) the knowledge of the standards of morality and (2) the conviction of being bound by them. Freedom of conscience thus refers to the freedom to not be coerced into acting contrary to the moral rules that the respective person considers binding for themself.
Moral Shame
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Avoiding Shame
12 Displacement
Now we can ask why it is important to protect the freedom of conscience by a special human right. All kinds of shame undermine our self-esteem. So, we feel a strong drive to avoid shame. A sufficient way of avoiding shame is to escape from situations that cause shame. Someone who feels shame because of their hair color can dye it. Someone who feels shame because of their body shape can either try to lose weight, do body building or participate in sports, or they can avoid meeting people and try to remain at home. Someone who feels shame because they have failed in their profession can change their job in order to become more successful and earn more appreciation. Someone who feels rejected as a lover can avoid romantic or sexual encounters with people, in which case they might suffer from loneliness but no longer from shame. However, strategies of this type fail when moral shame is involved. Avoidance strategies consist of changing one's life to avoid shame-inducing failure. Those who fail moral standards cannot simply change their lives. This is because moral standards refer to one's quality as a human being. The person who fails at being a good human being cannot simply change a role. Rather, they must cease to be a human being. The only way to do this is suicide. You see here why moral shame is much more dramatic and much more serious as compared to any other kind of shame. But this is only one side of the coin. Most people who feel shame because of moral deficiencies do not commit suicide. Their drive to live is so strong that they search for strategies which allow them to avoid the pain of shame and nevertheless survive. One of these strategies is – as we have seen in the sixth chapter – the strategy of displacement. In this case, we are making great efforts to forget our moral deficiencies. But this is not as easy as it seems to be. It is hardly possible to simply forget moral deficiencies because they affect our self-esteem in a very essential way. Therefore, displacement is mostly a kind of replacement. We replace the awareness of our failure by the invention of something else that is easier to tolerate. We can, for example, invent the idea that we are not the subjects who were responsible for an evil act but rather somebody else. This was what the German people did after World War II. They replaced the moral shame of their horrible crimes during the Nazi- controlled period with the idea that all these crimes were committed only by one perpetrator, Adolf Hitler. They considered themselves not just as mere cogwheels in the
231 12.2 · The Mechanism of Conscience
hand of Hitler, but also as manipulated victims of his crimes. The real victims of their crimes were not recognized as victims but rather they considered themselves victims. This made it easier for them to continue living without feeling moral shame. Very often, it is not enough to simply replace the recollection or memory. It is also necessary to replace the attending feelings. So, the feeling of shame is replaced by a feeling of anger, rage, or disgust. These feelings, however, need to be addressed. And because they avoid addressing their own evil actions, the feelings are then projected to somebody else. This “somebody else” could be the members of one’s own family. In this case, the person concerned avoids the pain of shame by treating others painfully. Although they no longer suffer themself, they allow or cause others to suffer. Another strategy is, for example, projecting these feelings to Jews, people of color, or foreigners. Still another possibility is to project the feelings of anger or disgust to oneself, but not to oneself as the person who committed evil actions, but rather to some aspects of one’s personality that seem less than essential. This could be the body. In this case, the respective person has feelings of disgust or shame toward their own body instead of experiencing moral shame. One reaction to such feelings could, for example, be a certain obsessive washing or an obsessive and pedantic sense of order. In this case, the suffering remains with the respective person, but it is reduced to a level that does not affect the self- esteem of the person as a whole. The consequence of this strategy is always a substantial reduction in the possibility of leading one’s own life on the basis of rational considerations and reflections. The psychoanalysts call such strategies of displacement by replacement neuroses. The disadvantage of neuroses is that the suffering cannot be brought to an end. It continues forever. The only difference is that the neurotic kind of suffering seems to be less essential for the person and is easier to tolerate than the original moral shame. However, the price is high and to be paid for in the currency of self-alienation. As you might remember from the sixth chapter, there is Feeling of Guilt still another strategy. This is neither the surrender to moral shame by suicide nor the mere avoidance of moral shame by displacement and neuroses. It is, rather, the strategy of keep one’s head above water by the transformation of moral shame into a moral feeling of guilt. This transfor-
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mation is the best and most sane strategy of handling moral self-rejection. It allows us to survive and at the same time to maintain our own authenticity. Nevertheless, the opportunity to develop the feeling of moral guilt in order to avoid suicide or the loss of authenticity is cut off if the respective person is coerced to commit actions that conflict with their own conscience and which are therefore considered as evil by them. In this case, the person feels moral shame without being able to transform it into guilt. After all, it is not possible to regret something and to strive for proving worthy of forgiveness as long as one is currently committing the evil action in question. The coercion to act contrary to one’s own conscience forces the respective person either to commit suicide or to avoid the feeling of shame by displacement, thus producing neuroses. Concerning the first alternative, the coercion to act contrary to conscience appears as a strong disregard of the person’s existence. Concerning the second alternative, the coercion leads to a deep self-alienation. This is why we should understand that there is an urgent need for a right to not be forced to act against one’s own conscience. This is the meaning and function of the right to freedom of conscience.
12.3
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I s the Right to Freedom of Conscience a Human Right?
Nevertheless, we must ask whether this right is really a human right. We have said that we can consider a right a human right only if the function of that right is to protect the necessary conditions of developing and maintaining personhood. I think we cannot say that someone who commits actions contrary to their own conscience is undermining their personhood. Indeed, the opposite is true. Only if we are persons and as long as we are persons are we able of acting contrary to our own conscience. Acting contrary to the conscience is an action for which the agent is responsible. Responsibility, however, can only be ascribed to a person and not to a non-person. In other words, if we would lose personhood by committing evil actions against our conscience there would never be someone who could be responsible for what they do or for what they have done. Conscience is an element of personhood and without personhood it is not possible to act contrary
233 12.3 · Is the Right to Freedom of Conscience a Human Right?
to conscience. Without personhood, it is not possible to feel moral shame. So, the problem of conscience and shame disappears when personhood ceases to exist. This shows that there is no direct connection between the freedom of conscience and the conditions of personhood. Personhood is rather the precondition of a conflict of conscience. The protection scope of the freedom of conscience must be considered in another way. For this purpose, it is helpful to introduce a new concept into the study, namely that of personality. What is the difference between personhood and personality, and to what extent is there a connection between the two? Personhood refers to the entirety of the skills that are Personality required for developing and maintaining a personality. Personality is the result of the application of personhood. By making use of our personhood, we produce a personality. Personality can be modified or replaced by another personality and the story of our biography consists of the development, modification, and replacement of personality. Personality refers, so to say, to the script of plays that we perform during our lifetime. It is obvious that the play which we perform when we are young is different from the play that we perform when we are retired. The life style of young people and old people is different because their personalities are different. Nevertheless, in most cases there is a slow development from the personality of the young person to the personality of the older one. In other cases, the change of personality appears rather as a revolution. An impressive example concerns those people who had to face deep mortal agony while they were involved in a disaster. While they previously may have developed a personality that was characterized by frivolity and superficiality, their personality has changed abruptly after the disaster. They are now serious and careful, and they consider what really matters in life. Another example is the criminological re- socialization thesis according to which prison has the function of supporting the inmates in changing their personality from a criminal one to a civic one. The freedom to develop a personality according to one’s own choice is not protected by human rights. This is easy to understand when we consider the option of a developing criminal personality. It is obviously legitimate to oppress this option and the law does nothing else. Every legal order prohibits and suppresses some types of person-
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. Fig. 12.4 Lawful and unlawful personalities
ality. The scope of alternative options for the development of personality is therefore restricted and can be restricted to a certain extent (see . Fig. 12.4). However, the suppression of certain types of personality must not be without limits – otherwise, a violation of human rights occurs. We can understand this through an example. We can compare the abilities of personhood with the ability to walk. The ability to walk will be stunted and will result in the inability to walk when a person is prevented from moving freely. A similar thing happens when a person is prevented from freely developing a personality. The ability of personhood becomes stunted, unless there is some space within which a free design of the personality is possible. So, the scope of free development of personality does not have to be unlimited, but the extent of the scope must be sufficient in order to maintain personhood. It must be wide enough in order to have a real choice to develop a personality with which the person can identify, so that they can say: “This is what I have made of myself! This is me!” Personality is the result of all actions we have committed in the past of our life up to the present moment. Identity, which refers to the personality, is called the biographical or, according to a concept of Paul Ricœur, the narrative identity. What happens with the biographical identity when a person considers important actions in their lifetime as evil? In this case, the person also considers their personality evil. Considering one’s own personality as evil leads either to striving to change the personality or the attitude of self-negation (see . Fig. 12.5). In order to
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235 12.3 · Is the Right to Freedom of Conscience a Human Right?
. Fig. 12.5 Forced evil actions
avoid self-negation, the person has to regret their evil actions and re-establish a good personality. Where someone is coerced to act contrary to their own conscience, they cannot choose the first option. They cannot regret. They are forced to self-negation. The script of a personality that is based on self-negation includes the quest for self-destruction. Suicidal tendencies or at least displacement is a constitutional element of a personality that is self-negated. This shows that the coercion to commit actions contrary to one’s own conscience is not on the same level as any other restriction to the freedom to develop a personality. It affects not only the freedom to choose a personality, but also the freedom to develop and maintain personhood. Therefore, we come to the conclusion that the right to freedom of conscience is really a human right. As we are at the end of this chapter, I want to stress an important fact. The reasons for a right to the freedom of conscience show that this right does not empower the holder to intervene in the actions of other fellow humans, regardless of whether these actions are considered evil by the respective person. The right to freedom of conscience does not entitle to a moral ruling over others. It guarantees only moral sovereignty toward oneself. The right to freedom of conscience entitles a person only to refuse cooperation. Nobody may be coerced to actively cooperate if the cooperation demands committing actions which are contrary to their conscience. This is the only content of the right to freedom of conscience. But nobody driven by their own conscience to fight for a better world is entitled to disturb or sabotage the actions of others.
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? Do You Still Remember? 1. In which context did the legal concept of “conscience” appear for the first time? 2. Explain the definition of conscience. 3. What is the core function of the right to freedom of conscience? 4. Why can the right to freedom of conscience be considered a human right?
For the answers, see 7 Chap. 21.
Reading Recommendations Locke, John: An Essay Concerning Human Understanding. 1690, Essay I, Chapter II, § 8 Strohm, Paul: Conscience. A Very Short Introduction. Oxford 2011 Tiedemann, Paul: Identity and Human Rights. Considerations on a Human Right to Identity. In P. Tiedemann (ed.) The Right to Identity. ARSP-Beiheft 147 Stuttgart 2016 Tiedemann, Paul: Is There a Human Right to Freedom of Religion? In Human Rights Review 16 (2015), pp 83–98, https://doi.org/10.1007/ s12142-014-0342-2
Case Law BVerfG jud. of 20/12/1960 – 1 BvL 21/60 –, BVerfGE 12, 45 (definition of conscience) ECtHR, jud. of 15/01/2013 – 48420/10 et al – “Eweida and Others v. UK”, § 80 HUDOC
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The Right to Spiritual Freedom Contents 13.1
he Generality of Freedom T of Religion – 239
13.2
he Freedom to Believe T or Not to Believe – 240
13.3
he Freedom to Practice T Religion – 242
13.4
Religious Practices and the Maintenance of Personhood – 244
13.5
The Criticism of Case Law – 253
13.6
he Timeliness of Religious T Freedom – 257 eading Recommendations – R 258
© Springer Nature Switzerland AG 2023 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-031-32292-1_13
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The Redundancy of the Right to Freedom of Religion Insofar as freedom of religion refers to either the right to believe or not to believe, or the right to assemble for religious reasons, or establish and operate a religious association, it is redundant because the communication rights already cover these rights. Insofar as the freedom of religion refers to the right to deny cooperation in accordance to one’s conscience, it is redundant because the right to freedom of conscience already covers this right. Only the core of spirituality (worship, rituals) can be considered as the possible subject matter of a specific right to freedom of religion. Spirituality, however, can be considered the protection scope of a human right only if spirituality is a required condition for the maintenance of personhood and the avoidance of selfalienation.
Religious Dualism
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In principle, we can experience the world in two different ways: (1) as a profane world which can be subjected to technical or communicative control, or (2) as a sacral world that cannot be subjected to any kind of control. The confrontation with the world as a whole (“the sacral”) occurs when we experience senseless and uncontrollably overwhelming suffering or injustice or when we become aware of our own death. The confrontation with the sacral world overwhelms us completely and makes us unable to lead an authentically self-determined life. Religious people are aware of both worldviews while people who are “religiously unmusical” (Max Weber) are only aware of the profane worldview. They do not (yet) have any experience with the sacral worldview. They believe that in principle, everything is controllable. There is some evidence that the avoidance of the sacral worldview leads to particular substitutes which indicate a kind of self-alienation (e.g., consumism, political extremism, particular obsessions for career, money, sports, etc., or a particular infantilism like fan cults).
239 13.1 · The Generality of Freedom of Religion
Religion as Spirituality Religion is the entirety of all the techniques that, in the face of the sacral world, allow us to reestablish or maintain the capacity to authentic self-determination and thus avoid self-alienation. These techniques refer to the assimilation of the individual to the almighty power of the world, rather than to the adaptation of the world to our purposes and interests. Religion, in this meaning, should be called spirituality. Spirituality is to be distinguished from a concept of religion that refers to techniques that allow us to control the world by means of magic. Religion in this meaning strives to get power and control while spirituality renounce power and control because it considers such as senseless.
The Function of the Right to Freedom of Spirituality The core function of the right to freedom of spirituality is the defense of the freedom of will against selfalienation by protecting the access to the religious means of resilience. These means of resilience makes people able to cope with threats of overwhelming power of the world as a whole. Spirituality does not modify the world. It only modifies the respective person.
13.1
The Generality of Freedom of Religion
The former President of the German Federal Constitutional Court and later Federal President of the Federal Republic of Germany Roman Herzog noted in his commentary on the Basic Law that:
»» If any basic right [of the Basic Law] ever is a direct con-
sequence of the principle of human dignity as it is declared as untouchable in Article 1 (1) and if any right ever is an inalienable and inviolable human right to whom Article 1 (2) refers to, then it is Article 4, which refers to the freedom of religion.
In making this comment, Herzog wanted to say that in no other case is it so evident that a particular right should be considered a human right as is the case with the right to
The Religion of the Others
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freedom of religion. I do not agree with him. It seems to me much more evident that the ban of torture or the freedom of expression are human rights. I concede, however, that a person who is very religious will likely consider their religion and the freedom to the exercise their religion to be the most important matter of their life. A religious person might even be ready to sacrifice their life for the sake of their religion. Nevertheless, this does not show that the right to the freedom of religion is really a human right. A human right to freedom of religion demands – insofar as it should exist – respect toward the religious life of every human person. So, it is not about my religion, it is about the religion of others. Freedom of religion demands respect toward foreign or even strange religions. In other words, it demands respect for religions which are not my own. We thus reach a serious problem when we consider the issue from the standpoint of Christendom or Islam. Both religions consider all other religions as being wrong—that is, they are based on misunderstandings, errors, or lies. Christendom as well as Islam claim that they are the one true religion and that every other religion is an error. From this point of view, it simply makes no sense to protect the belief and practice of religions that are based on wrong ideas. It is inconceivable that errors are constitutive of the development and maintenance of personhood. This problem is still more dramatic when we think about atheists. Atheists share the opinion that Christendom and Islam as well as every other religion are wrong practices based on wrong ideas. How should it be possible for an atheist to consider the right to the freedom of religion a human right?
13.2
Communication Rights
he Freedom to Believe or Not T to Believe
You may recall that the protection scope of the rights to free thoughts and expressions embrace not only the right to think and express true ideas, but also the right to think and express wrong ideas. You are right. If we understand religion as consisting of a certain number of ideas and nothing else, and if we consider freedom of religion as the freedom to believe or not to believe in these ideas, then it is not relevant whether
241 13.2 · The Freedom to Believe or Not to Believe
these ideas are true or wrong. The thinking and the expression of wrong ideas is protected by human rights. Nevertheless, for the purpose of the protection of the free exchange of religious ideas we do not need a special human right whose protection scope can be distinguished from the protection scope of the communication rights. The communication rights embrace all sorts of ideas, including religious ideas. The freedom to exchange religious ideas is therefore covered by these rights. The communication rights guarantee the right to believe or not believe, the right to express one’s beliefs, the right to assemble with other believers, and the right to establish associations of believers (churches). So, the question arises, why should there be a special right to the freedom of religion aside from the ordinary communication rights. The fact that the human rights codifications contain a special human right for freedom of religion in addition to the communication rights is a product of history. A long time before the communication rights became a subject of human rights, the need for religious freedom of thought had already developed in Europe. This was a result of the religious wars of the 16th and 17th centuries, which brought untold suffering to the peoples of Europe and have taught them never again to run wars for religious reasons. In order to avoid such wars, it was necessary to tolerate the strange religious ideas of others. Furthermore, many of those who were persecuted because of their religion fled across the Atlantic and established the United States of America. In the United States, the right to the freedom of religion has thus always played a very prominent role. The need for the freedom of communication relating not only to religious, but to all kinds of ideas, was only discovered during the course of the European Enlightenment. This development began in the seventeenth century, but led to the demand for appropriate human rights only toward the end of the eighteenth century within the context of the American and French revolutions. At that time, the right to freedom of religion within the meaning of a right that protects religious thinking was already well established such that it became common practice to assign the protection of religious ideas to the right to freedom of religion and the protection of all other ideas, especially of political ideas, to the communication rights. But a serious analysis shows that the freedom to believe in or to express religious ideas is only part
Historical Reasons
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of the general freedom to believe in or to express all kinds of ideas. Therefore, from a systemic point of view there is no need for a special right to the freedom of religious belief.
13.3 Religious Ideas
Morality
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The Freedom to Practice Religion
The communication rights, including the right to religious belief, refer only to the exchange of ideas. They apply to a pure intellectual world and not to the world of crude facts or situations beyond the world of ideas. The communication rights allow us to talk about everything. But they do not allow us to act in accordance with our ideas and to realize what we are thinking. We can have the idea that the world would be a better and more just place if we did not have to pay taxes. Regardless of whether this idea is right or wrong, this does not alter the fact that we have to do what the tax laws require. At least we cannot claim that the duty to pay taxes violates communication rights, because paying taxes is an act in the material world and beyond the world of pure ideas. So, we can take the right to freedom of religion seriously only if this right does not only refer to the intellectual freedom but also to the freedom of a specific kind of action, namely actions that can be considered as religious actions. Especially from the viewpoint of those religions which are well established in Europe, we can determine that actions based on a certain religious motivation fall within the scope of morality. Christendom, Islam, and Judaism dominate in Europe. The latter is a minority religion, but its influence on religious thinking goes far beyond the community of the Jewish people. Jewish thinking influenced Christendom so strongly that it makes sense to speak about Christendom as a Jewish sect. Islam was also strongly influenced by both Judaism and Christendom. An important characteristic of Judaism is the idea that the exercise of religion primarily consists of the obedience to God. Obedience to God requires following rules established by God that relate at least to the relationship between the members of the community, or more generally to the relationship between all members of mankind. These rules should therefore not be followed on the ground that they are useful for the acting person, but rather only
243 13.3 · The Freedom to Practice Religion
because God has commanded them, regardless of whether they are useful. The believer fails to fulfill the meaning of their life if they disregard the commandments of God. Failure to comply with the God-given rules of living together is called a “sin.” The general term for the type of rules which are to be complied with regardless of the practical consequences for the agent and only in order to avoid the failure of the meaning of life, is the term morality. Rules of this type – regardless of whether or not they are considered as given by God – are called moral rules. Moral rules are not the constituent element of every religion. They are typical only for Judaism, Christendom, and Islam. For other religions – like Hinduism, Buddhism, or all those religions that do not belong to the so-called “high forms” of religion – moral rules are based on tradition or on the teaching of wise men, but they are not considered as God-given. It is now important to understand that the right to freedom of moral acting – regardless of whether it is based on religion – is covered by another wider-framed human right, namely the right to freedom of conscience. The separation of this right from the right to freedom of religion is, as we have seen in the last chapter, only a recent development. It occurred only in the time after World War II and it has not been recognized everywhere in the world of legal or philosophical thinking about human rights until very recently. In the English-speaking world it is particularly common to identify conscience with religion. An example for this is the title of a famous book of Martha Nussbaum: Liberty of Conscience. In Defense of America’s Tradition of Religious Equality (New York 2008). Another example is Jocelyn Maclure and Charles Taylor’s Laïcité et liberté de conscience (Montreal 2010). This seems me to be a consequence of the fact that the protestant variation of Christendom is predominant in those countries and that moral rules as constituent elements of religion is a particular characteristic of protestant variants of Christendom. A closer analysis shows, however, that freedom of conscience is much wider framed than the freedom to religiously motivated moral acting. This follows from the fact that morality cannot only be justified on the basis of religious belief. Other sources of morality are also possible. So, we can conclude the following: freedom of religion, as long as it refers to the freedom of moral acting, is embraced from the wider framed free-
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dom of conscience. So, there is no need to establish a specific right to religion in order to guarantee protection of the freedom of religiously motivated moral acting. But there is another kind of action that is very closely related to every religion. All religions embody certain practices that can be called ritual practice (rites). Rites are not only typical of some religions, rather they are constituent for the concept of religion as such. Religion without rites is not conceivable. What are rites? Religious rites refer to worship, ritual sacrifices, adoration, prayers, singing, pilgrimage, fasting because of religious reasons, meditation, and contemplation. We will see later that certain kinds of behavior directed at other people (charity) can also be considered ritual actions. If there is such a thing as a specific protection scope of a right to freedom of religion, then it must refer to the freedom to commit ritual actions. As we have worked out so far, human rights are, by definition, rights that are dedicated to the aim of protecting the essential conditions of becoming and being a person, the conditions of personhood. From this follows that the right to freedom of religion can be considered a human right only if the carrying out of religious rites can be considered an essential condition of the development and maintenance of personhood. Otherwise, such a right cannot be derived from the principle of human dignity and would therefore be only a simple positive right and not a human right.
13.4
Religious Practices and the Maintenance of Personhood
In the following, I will show that there is indeed an essential need for the freedom of religious ritual action in order to maintain personhood. For that reason, we have to clarify the function of religious rites. Rites appear not only in the context of religion. Every exam celebration is a rite, an academic rite that happens at the end of every semester. In order to find out the specific characteristics of religious rites, I first want to inquire into the function of religion. I hold the opinion that the function of religion becomes clear when we draw attention to a fact that is typical for religious people.
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Religious people cherish a dual worldview. They distinguish the profane world from what I want to call the sacral world. Many religions materialize this distinction by distinguishing between profane and sacral places, houses, mountains, woods, or waters (see . Figs. 13.1 and 13.2). This is a very archaic manner of thinking about religion, but it also appears in current religious life. Does this topographic distinction between profane and non-profane give us a hint about the relevance of religion
. Fig. 13.1 Profane places: skyline of Frankfurt
. Fig. 13.2 Sacral places: pyramids of Giza
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in the maintenance of personhood? At first glance, this is difficult to see. The so-called monotheistic religions (Judaism, Christendom, and Islam) also refer to the distinction between profane and non-profane (sacral). But they do not consider this distinction as a difference in space and time. Rather, they refer to the distinction between a material world inside the space-time continuum and a world beyond the world in time and space (the Hereafter). In other words, monotheism differentiates between a profane, immanent world and a non-profane, transcendental world. This idea, which is characterized through a doubling of the world, is very often connected to a ban of sacral images because sacral images tend towards an archaic worldview. The dualism of immanence and transcendence is without doubt intellectually much more challenging. Nevertheless, even this idea does not demonstrate why religion should be an essential condition of the maintenance of personhood. But before we give up all further attempts to think about the relevance of religion, we should first ask whether there is a common basis in these two variants of dualism that may lead us to a deeper insight. The search for a common basis in the two variations of religious dualism shows that both interpret the dualism of profane and non- profane in an ontological manner. Ontology is a philosophical term. It is the name of the philosophical discipline which wants to determine the general structure of what exists in the world. In other words, the discipline concerns itself with the general structure of being as such. Ontological research is always developed in terms of an observer looking out to the world and its general structure. It is the view on an external object. Here is the observer and there is the observed world. The opposite of an ontological approach is what we can call the perceptive approach. The perceptive approach is a look on an internal object. The perceptive approach does not ask what exists and what its general structure is. It asks instead “what do I perceive and what is the general structure of my perception.” This internal view is a view that reflects what happens inside of the perceiving person. The internally directed reflection is the alternative to the externally directed ontological view. So, before
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we give up the attempt to determine the relevance of religious dualism for the maintenance of personhood, we should first investigate whether this relevance becomes clear from the position of a perceptive approach. According to this approach, the religious dualism refers not to two different kinds of being, but to two different kinds of perception. A good way to understand the religious distinction between profane and non-profane is through a picture, first published anonymously on a German postcard from 1888. It is well known under the title “My Wife and my Mother-in-Law” (see . Fig. 13.3). This picture shows a woman. Some of you will identify a young woman who turns her gaze away from the viewer (“wife”). Others will see an elder woman with a hooked nose who turns her
. Fig. 13.3 “My Wife and my Mother-in-Law”. (© Public Domain (anonymous German postcard of 1888))
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gaze to the lower left edge of the picture. (“mother-in- law”). If you concentrate on the image, you will likely see both women. However, one of the two characters will always be more in focus for you than the other – you will not see the young woman while you see the old one, and vice versa. Just as you can see two different images despite there being ontologically only one image, so too it is possible to see the world in two different ways. Depending on the particular worldview which we choose, we are aware of different worlds although there is ontologically only one world to be seen. We can thus distinguish the profane and the sacral worldview. Let me shortly describe the profane worldview. The profane view of the world is analytical. We never see the whole, but only parts and relations between these parts. A fundamental analytical distinction is the distinction between me and the world around me. By distinguishing between me and the world around me, I understand myself as opposite to the world and not as part of the world. I understand myself as a being with a dynamic that is independent from the dynamic of the world around me. Another important analytic distinction is the distinction between the environment and the social world. Environment is the world insofar as every individual person always stands in the center of that world. For me, my environment is only interesting to the extent that it relates to my needs, interests, advantages, risks, etc. The social world consists of all the other individuals around me who I recognize as fellow humans. We recognize our fellow humans as their own centers of their own environment, as means in themselves, as someone and not just as something. Both the environment and the social world are primarily controllable by us and disposable for us. We can talk to our fellow humans in order to find out their intentions, purposes, and desires. We can make arrangements with them in order to calculate their future behavior and we can try to influence their future behavior by means of communication. The environment is technically controllable, predictable, and calculable by mindful experience or by scientific methods. Now let us turn to the non-profane way to see the world. I call this worldview the sacral one. The sacral view of the world is not analytical but holistic. By this view, we are aware of the world as a whole and not as a system of
249 13.4 · Religious Practices and the Maintenance of Personhood
parts. By exposing ourselves to the world as a whole, we lose the capacity to understand it as well as the capacity to control it and to dispose of it because understanding, controlling, and disposing are possible only with regard to particular parts and aspects of the world and not toward the world as a whole. The holistic view of the world is the original one. It is the view of the new born baby who is still not able to distinguish between themself and the world. As adults, we lose the capacity to distinguish between ourselves and the world if we watch the world through holistic glasses. We watch the world through holistic glasses if we experience senseless suffering, senseless injustice, or if we simply are aware of our own death. In such cases, we stop feeling as though we are opposite to the world. Instead, we feel ourselves to be part of the world, as something rather than someone. If we watch the world through the holistic glasses, we lose the capacity to understand ourselves as the center of an environment. We also lose the capacity to understand ourselves as members of a social world because we lose every capacity to establish or to maintain any structure of sense and meaning. By recognizing the world as a whole, we experience a total loss of control. We meet with the world as a power that totally overwhelms us and forces us into a completely passive role. We cannot understand the world as a whole; we cannot maintain our self in front of the totality of the world; we cannot see any sense in world and life. We cannot rule the world anymore. By meeting with the world as a whole, we are deprived of every option to act. The American philosopher William James spoke about the experience of the “floods and waterspouts of God” that makes us into helpless victims. Let us summarize the results of our considerations. In principle, we can experience the world in two different ways: (1) as a profane world which can be subjected to technical or communicative control, and (2) as a sacral world over which we have no control. Confrontation with the sacral world overwhelms us completely and makes us unable to lead an authentically self-determined life. Nevertheless, what has all this to do with religion? Religion is the epitome of all the techniques that, in the face of the sacral world, allow us to reestablish or maintain the capacity to authentic self-determination. There are significant parallels between the experience of the sacral world and the experience of a psycho-trauma. Human beings suffer from psycho-traumata if they expe-
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rience overwhelming violence (war, rape, torture) or if they experience overwhelming natural power (earthquakes, floods, being trapped under avalanches or in a mine) or if they suffer by completely wasting away in a hospital or in a prison. In all these cases, the victim experiences a fundamental deprivation of control. The discovery of psycho-trauma diseases which make people unable to lead a self-determined life is relatively new knowledge. It occurred in the second half of the twentieth century. It is also relatively new knowledge that people who suffer from psycho-traumatic experience are only able to heal themselves and reestablish their capacity to act authentically by their own powers (resilience) under certain conditions. Finally, medical and psychological methods have now been developed to help people who are not able to heal themselves. Interestingly, it has been shown that there are striking similarities between the conditions and possibilities of healing the psychological trauma and the traditional means of religion. So, the findings of modern psycho-traumatology allow for a better understanding of the function of religion. From these considerations follows a very important insight. Religious practices do not pursue the aim of changing, ruling, or controlling the world. In front of the total almightiness of the sacral, there is no opportunity to change or control anything. The conception of a “political religion” is a contradiction in itself. Likewise, all forms of magic, although very often confused with religion, have nothing to do with it. Magic is a (mostly less successful) means of controlling the world. It belongs to the profane world and not to the sacral one. Religious practices do not aim to change or improve the world, but they pursue only the aim to change oneself in order to assimilate to the “floods and waterspouts of God.” A very intuitive image for this is that of bamboo, which a storm cannot break because it is flexible enough to bend with the wind (see . Fig. 13.4). The target of religious practices is to become flexible and porous and to not resist against the sacral in order to avoid destruction. I will present only two examples of religious practices. Many religions are familiar with rituals of sacrifice. The purpose of sacrifice is to give away belongings in order to become independent of these belongings, so that you cannot be destroyed if the sacral takes it from you. It is a strategy of immunization and becoming resistant against the “storms and waterspouts of God.” The other example is
Sacrifices Charity
251 13.4 · Religious Practices and the Maintenance of Personhood
. Fig. 13.4 LAO-TSE, Tao-Tê-King 76, 182
charity. Some religions stress charity. Nevertheless, charity and sacrifices share the same idea. By turning to somebody else in love, we don’t think ourselves too important anymore. We reduce, so to say, the stiffness and hardness of ourselves. We are not so busy with defending ourselves anymore. Rather, by having the needs of others in mind we become softer and more tender. By doing so, we earn more flexibility, similar to bamboo in a storm. We can clarify the difference between profane acting and religious acting by using the terms adaption and assimilation. By acting in the profane world, we try to adapt the world to our purposes, interests, and needs. We change the world. By acting in the sacral world, we assimilate ourselves to the overwhelming power of the sacral. We change ourselves. Religious practice is therefore the opposite of exercising power. The exercise of power serves the purpose of becoming stronger, more stable, in order to withstand the world and to rule it. Power is only meaningful if we act in front of the profane world, not if we act in front of the sacral world. In front of the sacral world, the aim is not power but acceptance of our own powerlessness. Religious practices aim to maintain authentic self- determination by conscious renunciation of power and control and assimilating oneself to the almightiness of the sacred by becoming porous for the “floods and waterspouts of God.” In order to make that clear, it seems me to be more useful to rename the concept of freedom of religion as freedom of spirituality. The aim of all practices which deserve to be called spiritual show the relevance of religion in the context of human rights. Religious (= spiritual) rites are necessary means of maintenance of authentic self-determination in
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the confrontation with the sacral world. From this point of view, we have a sufficient standard to judge whether religious rites are appropriate and worth being protected or whether they are inappropriate and not worth being protected. It depends on their usefulness in coping with the sacral world. Usefulness, not truth, is the rational standard of religion. The rituals of different religions might be different and some of them appear to us strange, but we can nevertheless consider them as a subject of protection through human rights if they are useful to those who practice them. Neither the state nor other people can judge which rites someone may choose and practice as long as they are useful to them and not harmful. Just as the state does not have the power to decide which scientific theories are true and which are false, it does not have the power to decide which religious practices are helpful and useful to maintain the authentic self and which are not. From the states’ point of view, we can only say that both the sciences as well as the religions are necessary in order to lead a life with human dignity. Therefore, the state must protect both by recognizing a human right to free thoughts and free science as well as a human right to freedom of religion. The aim of spirituality and the function of the right to freedom of spirituality shows that this right has something to do with the protection of ownership in one’s own person. This is why this right can be assigned to the group of privacy rights. Many people might question whether religious rites are actually necessary to maintain personhood in traumatic situations. Indeed, there are individuals who do well without practicing religious rites. They do not need religious means of resilience even in traumatic life situations. Nevertheless, we should distinguish between those who are really “religiously unmusical” (Max Weber, Jürgen Habermas) and those who have no access to religious means because of a lack of religious education. The latter very often tend toward strange substitutes which indicate a kind of self-alienation. Instead of religious rites, they exercise other rites which are obviously not sufficient. They do not share a religious belief, but they observe the ideals of consumism, political extremism, particular obsessions (e.g., career, money, sport, etc.), or they share a particular infantilism like fan-cults. But even if we think about those who are neither dependent on religious practices nor irrational substitutes,
253 13.5 · The Criticism of Case Law
this does not preclude the adoption of a human right of religious freedom. There are also people who are not interested in expressing an opinion and do well without reading a newspaper. Nevertheless, there is a human right to freedom of expression and a right to freedom of information. There are people who do not want to go to meetings and do not want to belong to an association. Nevertheless, there is the right to freedom of assembly and association. Yes, there are even people who do not want to live anymore. Nevertheless, there is a human right to life. So, why should there not be a human right to spirituality despite some people not making use of it? Furthermore, the right to freedom of religion includes not only the right to make use of religious means, but also the negative right to not be coerced into religious rites.
13.5
The Criticism of Case Law
With the end of this chapter, I want to apply the results to the example of the case law of the German Federal Constitutional Court concerning the Muslim headscarf. In its first judgment on this matter from 2003, the Court decided that it was a violation of the right to freedom of religion when a candidature for a job as a teacher at a public school is refused because the candidate wants to wear a Muslim headscarf. The Court held the opinion that the ban of Muslim headscarves for teachers during school hours is an unlawful restriction of the freedom of religion when there is no statute that allows such intervention in freedom of religion. Subsequently, some German states enacted laws according to which it prohibited teachers in public schools from wearing a Muslim headscarf during school hours. In its decision of 2015, the Court cancelled the statute of the land of North Rhine-Westphalia by arguing that it is not in accordance with the right to freedom of religion to ban the Muslim headscarf simply on reason of abstract and generalized considerations. The ban would only be lawful if there is a sufficient concrete risk for disorder of the peace in school or for the neutrality of the state. Only if a teacher provokes severe trouble in the school by wearing a headscarf can it be justified to prohibit the wearing of the scarf. It depends thus on the extent of tolerance of the school community whether the freedom of religion of the respective Muslim teacher has to be respected.
Muslim Headscarf
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Moral Considerations
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Nevertheless, there cannot be any doubt that the exercise of a human right can never depend on the tolerance or intolerance of others. So, there is only one possibility of interpreting the judgments in accordance with a rational human rights doctrine. The Court obviously does not consider the right to freedom of religion as a human right. The Court seems to think that exercising religion (by wearing a headscarf) has nothing to do with the conditions of personhood or with the principle of human dignity. Freedom of religion falls only in the protection scope of freedom of action and not in the protection scope of freedom of will. Therefore, there is no absolute right to the freedom of religion and instead freedom of religion depends on other interests and can be determined only on a case-to-case basis according to the principle of proportionality. Are these judgments convincing? The first question we have to ask is whether wearing a Muslim headscarf is a religious ritual that can be considered an appropriate means of assimilating to “the floods and waterspouts of God”. At the very least, it is not entirely excluded that a pious woman understands the headscarf as a means of spirituality. A headscarf can be a means of spirituality if, like the knot in a handkerchief, it should remind the wearer of the overwhelming power of the sacred, and of the need to be permeable to “the floods and waterspouts of God” in all situations of her life. I cannot presume to know the motivations behind every woman that wears a headscarf. Nevertheless, it is clear that if a woman says that she wears the headscarf exactly for this reason then it must be accepted as such. Still, wearing a headscarf as a means to remind the wearer of its existence under the power of God is only protected by the right to freedom of religion if the ban leads to a sustained and deep devaluation of this means. But the function of the headscarf as a spiritual reminder is not really destroyed or devalued when a woman is hindered from wearing it during some hours of the day. Therefore, the freedom of spirituality cannot be seriously threatened if a pious Muslim woman does not wear the headscarf for some hours during her worktime. Even if she wears the headscarf only in her free time, this will be sufficient to support her in maintaining a religious attitude toward her life.
255 13.5 · The Criticism of Case Law
But there is probably still another function of the Muslim headscarf. It can serve as a symbol by which the wearer confesses her belief, giving others an opportunity to reflect on their own religious positions. In this case, the headscarf is a means of communication. As we have seen in the ninth chapter, communication rights do not provide privileged positions and chances to disseminate one’s own opinions in every setting. This is also true for religious opinions. Therefore, a teacher does not have the right to express her religious belief in front of a school class. She has no right to use the headscarf as a means of communication while working as a teacher in a public school. This shows that prohibiting a teacher from wearing a Muslim headscarf during work hours is not a violation of the moral human right to spirituality. So, it can be made a matter of balancing against other interests, just as the Court did. So much for the philosophical, i.e., moral considerations about the Muslim headscarf case. Now I want to show you how the courts can deal with this case in terms of positive law. The Federal Constitutional Court is empowered to decide cases on the basis of the German Basic Law (GG). But first, I want to show the legal argumentation based on Article 9 of the ECHR, which is the basis of decisions of the ECtHR (see . Fig. 13.5). Article 9 (1) ECHR shows that the protection scope of Article 9 (2) concerning the legal freedom of religion goes beyond what is required by the moral human right of freedom of religion. For only if the protection scope of the codified right goes beyond the scope of the moral human right does paragraph two make any sense. Otherwise, the protection scope of paragraph one would refer to the core
Legal Considerations
. Fig. 13.5 Article 9 ECHR
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. Fig. 13.6 Article 4 GG
Article 4 GG
of the human right to religion. As we have seen in previous chapters, restriction clauses are only acceptable if they do not refer to the core of a human right but to the yard of the right in question. From this consideration, we can conclude that a teacher wearing a Muslim headscarf during school lessons is covered by the yard of the protection scope of the freedom of religion according to Article 9 (1) ECHR. Therefore, it is permissible to restrict this right according to paragraph two. A basis for a restriction of this right is also found in the principle of proportionality that is within the case law of the ECtHR. Thus, it might be justifiable to say that the ban on wearing a Muslim headscarf is not proportionate for civil servants in a back office, while it is proportionate for policewomen who must appear in uniform or for teachers in a public school. The Federal Constitutional Court did not decide the headscarf case based on the ECHR, but rather based on Article 4 GG (see . Fig. 13.6). Article 4 GG does not have a restriction clause or a statutory reservation clause as other rights in the Basic Law have. Article 4 GG does not allow a restriction by law. From this follows that the protection scope of Article 4 GG must be interpreted differently as compared to the protection scope of Article 9 ECHR, namely much narrower. The protection scope of the codified right here is exactly the same as the protection scope of the moral human right to spirituality. Considering that Article 4 GG protects only the core of the right to religion and because the headscarf case does not fall under the core of that right, we must conclude that this case does not fall under Article 4 GG. The headscarf case does not concern freedom of religion as defined by the Basic Law. The case refers only to Article 2 (1) GG, which protects the freedom of action under proviso of the rights of others and the principle of proportionality. The Federal Constitutional Court has no clear conception of the term religion in Article 4 GG. Therefore, its
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257 13.6 · The Timeliness of Religious Freedom
decisions in this field are not very convincing. As a result of the weak cogency, the case law of the BVerfG has some problems finding acceptance in public. A deeper analysis of the concept religion by means of philosophy could improve the Court’s case law.
13.6
The Timeliness of Religious Freedom
The headscarf case is typical for cases concerning freedom of religion in democratic states under the rule of law. It shows that in decent states of this kind there is almost no serious conflict that actually threatens the right to spirituality. This is easy to understand when we consider that a conflict between spirituality and the public or political interest is hardly conceivable. For spirituality refers only to the renunciation of power and to the assimilation of the individual to the almighty. Spirituality claims no domination and no social influence. It refers only to the self- perfection of the individual person. This is not the only reason why the importance of religious freedom in free societies is declining. Historically, religious freedom was not so much about spirituality as about the power and influence of competing religious communities and their domestication by the state. From this point of view, religious freedom is not to be understood as a human right, but rather as a requirement for tolerance that is intended to enable different religious communities to live together peacefully. This function is falling away as the political and cultural significance of traditional religious communities in the Western world is waning. This shows that cultural development can lead not only to new human rights, but also to the obsolescence of old human rights. Nevertheless, the opposite is true in authoritarian societies and states under the rule of dictatorship. In these societies and states, there is a high political claim to the total control of the individual. Spirituality immunizes the individual from such total control. Therefore, totalitarian and authoritarian states fight any kind of individual spirituality, or at least they want to decide for themselves what kind of spirituality they want to allow. It follows that the human right of spiritual freedom in such states is under pressure and the demand for spiritual freedom is of fundamental importance.
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? Do You Still Remember? 1. What is the core function of the right to freedom of religion (spirituality)? 2. How can “religion” be defined in a rational manner? 3. What is meant by religious dualism? 4. Which aspects of the right to freedom of religion can be considered as redundant?
For the answers, see 7 Chap. 21.
Reading Recommendations
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Durkheim, Émile: The Elementary Forms of Religious Life [1912], Oxford 2008 Eliade, Mircea: The Sacred and the Profane. The Nature of Religion. Fort Washington (PA) 1968 Geertz, Clifford: Religion as a Cultural System. In: C. Geertz, The Interpretation of Cultures. Selected Papers, Plano (TX) 1993, pp. 87. http://nideffer.net/classes/GCT_RPI_S14/readings/Geertz_ Religion_as_a_Cultural_System_.pdf Herzog, Roman: Artikel 4 GG. In: Maunz/Dürig/Herzog/Scholz (eds.), Das Grundgesetz. Kommentar. Lfg. 27. München 1988 James, William: Varieties of Religious Experience, a Study in Human Nature. Rockville 2008 Otto, Rudolf: The Idea of the Holy. An Inquiry into the Non-Rational Factor in the Idea of the Divine and Its Relation to the Rational. [1931], London 2012 Schleiermacher, Friedrich: On Religion: Speeches to its Cultured Despisers [1799]. London 2018 Sheldrake, Philip: Spirituality. A Very Short Introduction. Oxford 2012 Tiedemann, Paul: Is There a Human Right to Freedom of Religion? In Human Rights Review 16 (2015), pp. 83–98 Tiedemann, Paul: Religionsfreiheit – Menschenrecht oder Toleranzgebot? Was Religion ist und warum sie rechtlichen Schutz verdient. Berlin/ Heidelberg: Springer 2012. https://doi.org/10.1007/978-3-642- 32709-4
Case Law BVerfG jud. of 24/09/2003 – 2 BvR 1436/02 –, BVerfGE 108, 282 English translation: http://www.bverfg.de/e/rs20030924_2bvr143602en. html BVerfG dec. of 27/01/2015 – 1 BvR 471/10 and 1 BvR 1181/10 –, BVerfGE English translation: http://www.bverfg.de/e/rs20150127_1bvr047110en. html ECtHR, jud. of 01/07/2014 – 43835/11 –, S. A. S. v France, HUDOC
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The Right to Life Contents 14.1
he Codification of the Right T to Life – 261
14.2
he Unique Character T of the Right to Life – 263
14.3
The Existence-as-Attribute Thesis – 264
14.4
The Basis Thesis – 266
14.5
The Sanctity of Life Thesis – 268
14.6
The Mortal Fear Thesis – 270
14.7
he Function of the Right T to Life – 271 eading Recommendations – R 273
© Springer Nature Switzerland AG 2023 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-031-32292-1_14
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The Unique Character of the Right to Life In contrast to any other human right, the right to life seems to be a paradox. It seems to be impossible to violate it. Before the holder of the right is killed, there is no violation of the right because the holder is still alive. After the act of killing, there is no violation of the right because there is nobody whose right could be violated. The holder of the right does not exist anymore and can therefore not be in a state of deprivation of personhood.
No Violation of the Killed Person
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The thesis that the right to life cannot be understood as a relationship between obligee and obligor is contested by some arguments that are, however, not convincing. The Existence-as-Attribute Thesis is not convincing because the termination of existence is not a kind of deprivation of one’s property. Existence is an ontological transcendental and not an ontological category that serves the classification of entities. The Basis Thesis (life as pre-condition of all human rights) is not convincing because the value of x does not justify the value of the factual situation in which x has a value. Human dignity and human rights are valuable in life, but they do not constitute the value of life. The religious Sanctity Thesis (life as the property of God) is not convincing because it can only constitute a divine right to property of human lives, but not a subjective human right to one’s own life. The secular Man-as-Owner Thesis is based on a petitio principii (circular argument) because it derives the ownership of life from the ownership of life. The Deprivation Thesis is not convincing because the frustration of the desire to enjoy further periods of life is negligible. The length of time in which a living being is deprived of positive life experiences after death is infinite. The Mortal Fear Argument fails because persons in mortal fear are still alive. They are victims of an cruel treatment but not victims of an act of killing.
261 14.1 · The Codification of the Right to Life
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The Function of the Human Right to Life The killing of a person is not an attack against the personhood of the killed person, but it is an attack against the offender and all those who tolerate or support the act of killing. This follows from the Equiprimordiality Thesis.
14.1
The Codification of the Right to Life
This chapter deals with the human right to life. Many people might think that it is simply evident that human life, the pure biological existence of a human person, is a subject of the protection scope of a human right and that philosophical reflections are not needed to make this evidence understandable. Nevertheless, we will promptly see that the right to life is different from the rest of the human rights and that this difference leads to certain specific problems. The right to life protects the holders of the right against any acts by which they would be deprived of their life. There are only two possible situations concerning the protection of life. Either someone is alive, or they are dead (because of an act of killing). There is nothing in between. Therefore, it does not make sense to distinguish between a core and a yard of the protection scope. This suggests that the codification of the right to life refers necessarily to the core of that right. There is no limitation or restriction imaginable that could refer only to the yard of that right, because for this right, there is no such thing. If the right to life has to be regarded as a human right, then it follows that this right cannot be supplemented by any kind of restriction clause or statutory reservation. If the right to life should be regarded as a human right, it must be regarded as an absolute right. If it is an absolute right, then there cannot be any kind of justification for a deprivation of life for whatever reason. Indeed, when we look at the codified right to life in Article 3 UDHR, there is no such restriction clause. Nevertheless, a closer look shows that the right to life was originally not regarded as a human right in the moral sense. The classical human rights codifications of the Age of Enlightenment knew no right to life. Article 1 of the Virginia Bill of Rights speaks indeed of the right to the
Core or Yard?
Right to the Resources of Life
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“enjoyment of life and liberty”. But it was more about the right to seek happiness in life and not a guarantee of biological existence. Maximilien de Robespierre, the great slaughterer of the French Revolution, wanted to anchor the right to life in the French Constitution of 1793 as a primary human right. But he did not think of the inviolability of biological existence, but of a right to the economic subsistence minimum, i.e., a right to a good life. It is interesting to see that this idea is still alive. So, the UN Human Rights Committee hold in its recent commentary to Articles 6 ICPPR the opinion that the right to life not only embraces the entitlement to not be killed but also the right “to enjoy a life with dignity”. From the point of view that there is no human right to mere biological existence, it is not surprising that the codification of the right to life is subject to numerous exceptions. For instance, Article 2 ECHR contains several restriction clauses (see . Fig. 14.1). It guarantees the right to life but allows at the same time the execution of the death penalty, as well as acts of killing when necessary for the defense of any person from unlawful violence, to arrest someone, to prevent escape from detention, or in order to oppress a riot. A look at the German Basic Law confirms the result. Article 2 (2) GG places the right to life under a general statutory reservation (see . Fig. 14.2). The fact that the right to life was originally not regarded as a real human right is deeply rooted in the understand
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. Fig. 14.1 Article 2 ECHR
263 14.2 · The Unique Character of the Right to Life
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. Fig. 14.2 Article 2 (2) GG
ing of the individual’s position toward the community in which they are living. Traditionally, the human individual was considered only as a dependent part of their community. Therefore, it was of no doubt that the community could demand the sacrifice of the individual’s life for the sake of the community. The idea that human individuals do not exist for the sake of the community, but that the community exists for the sake of the individuals, could only be developed slowly, and has only influenced human rights codifications since the 1980s. This development is reflected in two Additional Protocols to the ECHR. Protocol No 6 of 28 April 1983 governs the abolishment of the death penalty. Nevertheless, the contracting states could not accept a complete abolishment. So, they agreed on exemptions for times of war or times of imminent threat of war. Only by revoking the reservation clause, which was done with the Additional Protocol No 13 of 3 May 2002, was the abolishment of the death penalty completed. This example shows that the consciousness of human life as an absolute human right is not rooted in our traditional thinking.
14.2
he Unique Character of the Right T to Life
Let us now turn to philosophical considerations of the issue. A deep philosophical analysis shows that the human right to life is indeed a very special one that is different from all the other human rights. This will become clear when we consider human rights as a kind of screenplay or script that defines a specific kind of interaction between at least two persons. One of these persons (A) plays the role of the perpetrator of an activity, which affects another person (B). B plays the role of the victim. The content of the perpetrator’s activity consists of shifting B to a state where there is a serious threat to B to be deprived of his
Offender and Victim
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No Victim
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personhood. We can briefly call this state an inhuman state. Bringing B into an inhuman state is to be considered a violation of one or more of B’s human rights. The perpetrator A is the person who is obliged to respect the human rights of B. So, we can call the victim B as the obligee of the right while the perpetrator A can be called the obligor of the right. This is obviously not the script of the play that relates to the right to life. All the human rights we have discussed so far refer to a conflict between an obligee and an obligor. In the case of the right to life, there is not such conflict. For this right does not refer to a play with two actors A and B, but only to a play with one actor A. The act of killing by A does not move an obligee B into an inhuman situation. The act of killing does not produce a victim. Instead, the consequence of an act of killing is that the obligee disappears. They do not exist anymore. Someone who does not exist cannot be in a particular state of life. It cannot be said that they are in either a human or an inhuman state. What we can say is that the death indeed destroys something, namely, both the living entity and all its properties including the attributes of personhood and personality. But there is no one who could have been deprived of something by this destruction. I am not sure whether you will share this view or whether you would like to disagree. Indeed, there are several arguments that suggest that the idea I have presented should be considered false. Subsequently, I will discuss these counterarguments with the hope that I can show that they are not convincing.
14.3
Confusion of Language
The Existence-as-Attribute Thesis
The first counterargument refers to the meaning and function of certain concepts. It is therefore a purely philosophical argument. According to this argument, life is an attribute of a living entity. Therefore, it is possible to deprive a living entity of its life just as it is possible to deprive it of any other attribute or good that is protected by a human right. The deprivation of life, therefore, shifts the respective person into an inhuman state. This argument is not convincing. It is based on a confusion of our language. The grammatical structure of our language makes it possible to talk about existence in the same way that it is possible to talk about any attribute of
265 14.3 · The Existence-as-Attribute Thesis
a subject. The proposition “Socrates exists” (= “Socrates is existing”) and the proposition “Socrates is hungry” have the same grammatical structure. But a deeper philosophical analysis shows that existence cannot be considered as an attribute. The classical philosophical Ontology 1 distinguished between ontological categories, which can be attributed to an entity, and the existence of the entity. Entities differ from each other through the attributes that are ascribed to them. Existence, however, is not a criterion of differentiation but a concept that characterizes an entity as what it is, namely an entity. Being an entity and existing are different words for the same meaning. Therefore, it is not possible to say that an entity does not exist. This is impossible just as it is impossible to say that the line of a circle is not round but straight. In the language of philosophical Ontology, we distinguish between ontological transcendentals and ontological categories. Existence is not a category but rather a transcendental. It does not serve the classification of entities like categories do. Instead, it serves only the characterization of an entity as entity. So, in contrast to the grammatical structure, we can recognize that “Socrates is existing” and “Socrates is hungry” do not refer to the same ontological distinction. The first sentence is a characterization. It says that there is something that is called “Socrates.” The latter is an attribution. Now we understand the mistake in the first argument. Being alive is not an attribute of a living entity, but it is the definition of what is meant by a living entity. The consequence is that it is not possible to deprive a living entity of its life. The killing of a living entity does not lead to an expropriated living entity, but to the disappearance of the living entity.
1 The classical Ontology is the traditional philosophical doctrine of the most general structures of what is. That which is the being. Ontology assumes the possibility of an objective view of the world and its structures. Nevertheless, what we consider to be the most general structures of the being, are in fact the structures of our language and our thinking. Modern language-philosophy has inherited the legacy of medieval Ontology. Nevertheless, important ontological distinctions are still relevant today.
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Categories and Characterization
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14.4 Life as the Pre-condition of Personhood
The Basis Thesis
The second counterargument relates to the fact that a living entity that is endowed with the capacity to develop personhood is the necessary pre-condition of all human rights. Someone can only be a bearer of human rights if they exist. So, existence is the pre-condition that must be met in order to enjoy any human rights at all. The required pre-condition of all human rights must be considered as the protection scope of a human right. This is the right to life. This argument was particularly used by the German Federal Constitutional Court when arguing in favor of an absolute right to life in the context of abortion. I quote the first judgment of 1975:
»» Within the constitutional order, life is a supreme value
that is not needed to justify in detail; it is the vital basis of human dignity and the pre-condition of all other basic rights.
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I think this argument is also not convincing. It is an error to believe that the substantive pre-conditions of an interest must necessarily be an interest on its own. It is, however, easy to show that this idea is wrong. The opposite is true. The condition of an interest must not necessarily be an interest on its own. This is shown in the following example. For someone who makes a flying trip, it is important and valuable that the plane is on time, that the food on board is not poisoned, and that the pilot is not drunk. Punctuality of the flight, the digestibility of the food, and the sobriety of the pilot are conditions for a successful flight. So, they have a value for me when I want to take a plane trip. But if I do not want to take a flight, then these conditions for a successful flight lose their value for me. From the importance of the conditions of a successful flight does not follow that the trip itself is important and valuable. Let us apply this example to the case of human dignity and its pre-conditions. It is true that life is an important pre-condition for a life in a humane state and for the ownership of human rights. As long as you are alive and as long as you are interested in life, a human state of being alive and the holding of human rights are of absolute value for you. But if we have passed away, there is no inter-
267 14.4 · The Basis Thesis
est in human dignity and in human rights anymore because the entity which could have been interested in such does not exist anymore. Human dignity and human rights are valuable in life, but they do not constitute the value of life. For those of you who have followed this lecture very attentively up to now, the suspicion might arise that there is a contradiction in this argument. You might remember my argumentation in the fifth chapter about the absoluteness of the value of personhood. I quote from one of the abstracts of this chapter: “Personal identity is absolutely valuable for every person because it is the prerequisite of any other evaluation …” I argued that personal identity (personhood) is the pre-condition of any kind of evaluation and that everything loses its value when it comes to a deprivation of personhood. Therefore, I concluded that personhood is of absolute value for a person. In other words, I concluded the value of the pre-condition of every evaluation, namely the absolute value of personhood, from the value of every evaluation. Now I say in the context of the right to life that it is logically not possible to conclude the value of its pre-condition (human life) from the value of a certain human practice. So, the question arises: is this a contradiction in my argumentation? This would be a contradiction if I understood personhood or person in the sense of Johann Gottlieb Fichte. According to Fichte, person is to be understood as a substance (personal entity). The characterization of a person is personhood. Personhood is the emergence of a will. When a will emerges, the person attains self-awareness. If personhood fades away, then the substance of the person does not exist anymore. Nevertheless, this conception leads to the paradoxical idea that there is a state of knowledge—awareness of oneself as a person—without a subject that has this knowledge. The subject of this knowledge is identical to the object of the knowledge. I therefore prefer the idea that personhood should not be understood as a substance but as a (contingent) attribute of human beings. The subject or the bearer of personhood is the biological entity—the human being—and personhood is something that human beings can possess. If the biological entity possesses personhood, then it develops self-awareness as a person. Otherwise, it does not. So, you can understand why there is no conflict between my thesis about personhood and my thesis about life. Personhood is a (contingent) attribute of living entities, while being alive is the characterization of a living entity.
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Personhood as Attribute
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It is thus logical to conclude the value of an attribute from the value of another attribute which is the pre-condition of the former. But it is not possible to conclude the value of an attribute from the value of an entity that is characterized as a living entity.
14.5
Religious Variant
Ownership of Life
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The Sanctity of Life Thesis
There are several different variations of the Sanctity of Life Thesis. We can distinguish a theological variant and two secular variants. The theological argument claims that life belongs to God. That is, it is only borrowed from God. Its destruction is therefore a sin against God. From this follows a right to life. I will not discuss the truth of any particular religious faith. This is not a theological lecture but a philosophical one. Thus, what can we say about this thesis from a purely philosophical point of view? The thesis claims that life is property, but not a property of the living entity but the property of someone else, namely of God. This is not problematic from a logical or ontological point of view. The thesis, however, does not meet the conditions of a foundation of the human right to life. It does not justify the right to life as a subjective right of a human individual. The thesis refers rather to a subjective right of God, namely, the right of ownership of the lives of human beings. According to this argument, human beings enjoy the protection of life only as a side-effect, but they are not the holders of the right to life. Consequently, this is not an argument in favor of a human right to life, but rather in favor of a divine right to life. Therefore, the argument cannot serve as the foundation of the right to life as a human right. An initial secular variant of the argument goes as follows: not God is the owner of a human life, but the human individual is the owner of its own life. Thus, it has its life at its disposal, and it claims the sole power of disposal. From this follows a right to life. This argument suffers from a petitio principia fallacy (circular argument) because the conclusion is identical with the premise. The right of disposal over one’s own life is inferred from the right of disposal over on one’s own life.
269 14.5 · The Sanctity of Life Thesis
A second secular variant of the Sanctity of Life Thesis (deprivation thesis) goes as follows: homicide frustrates the victim’s desire to continue living. That frustration is an evil that the respective person suffers. Suppose a person lives 80 years. Typically, they have experienced a whole series of joyful feelings and adventures during these 80 years that make their life seemingly worth living. If they had died at age of 40, their death would have deprived them of all the positive things that happened in the second half of their life. The supporters of the deprivation theory conclude from this idea that the victim of an action of killing suffers a loss (during their lifetime) that their right to life should protect against. This right, however, has a relative weight that varies between the different ages of humans. The sooner a human being dies, the greater the damage they suffer by the loss of positive future life experiences that they otherwise would have been able to enjoy. Upon closer examination, this argument is not as impressive as it first appears. While it is true that those who die earlier are dead longer, the time difference is actually insignificant. The length of time in which the living being is deprived of positive life experience after death is infinite. Even a natural death at 80 or 100 years old frustrates the desire to experience those positive things that would occur in the 81st, the 125th, or the 1013th year of age, and so on. From this perspective, an additional 40, 60, or 80 years of life are not worth mentioning. The deprivation theory does not do what it claims to do. It does not provide reason for a right to life. Rather, it leads to the conclusion that it makes no essential difference whether and when a person dies, or if and when they are killed. Perhaps behind the deprivation theory, however, stands an intuition that is not clearly and unequivocally expressed in the formulation of the theory. The evil of killing does not consist of the fact that death prevents future life, which the person would like to experience. The problem is rather that in the face of death all current life experiences and all plans lose their meaning and value. This argument, however, does not refer to the termination of life by killing as such. It refers to our general living condition where we are always living with the expectation of death. Undoubtedly, we can concede that a person who is not tired of life suffers from the fact that they know to expect their death. Human life is largely related to the future. Everything we do refers to our future, regardless of
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Deprivation Theory
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whether we think about our great life plans or only our short-term actions. In a certain sense, all our activities seem to lose their meaning if our future is limited. Thinking about our death, therefore, usually generates a specific kind of sadness or even desperation. Nevertheless, the question is whether our state of mind when we think of our own death should be qualified as inhumane and contrary to human dignity. Is the awareness of our mortality and of the limitations of all meaning in life not rather a condition for a dignified life? Death may be regarded as an evil because it removes meaning from life. But this evil is not the result of an intentional act of killing, but rather the consequence of our mortality. A human right to life and its strict observance cannot eliminate this evil. It makes no sense to consider the human right to life as a means of achieving immortality.
14.6 Mortal Fear as Inhuman State
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Case Law
The Mortal Fear Thesis
The Mortal Fear Argument refers to the fact that persons who are threatened with killing feel mortal fear. Mortal fear indeed establishes a state of living in which personhood is in danger. Persons who feel mortal fear fall into a state of panic that deprives them of their ability to form free will based on their own considerations and reflections such that they can live authentic lives. Protection against the evocation of mortal fear is therefore the content of the protection scope of a human right. But this is not the human right to life. It is rather the right to freedom from torture and cruel or inhuman and degrading treatment according to Article 3 ECHR. Mortal fear is something that is experienced while the person concerned is still living. The evocation of mortal fear shifts the person to an inhuman state like in any other case of torture or cruel treatment. The ECtHR consequently distinguishes between protection against mortal fear and protection of life. This distinction was made for the first time in the famous case of Soering v. UK. The case was about a young German man who was to be extradited from the UK to the USA, where he had been accused of murder. At the time, the death penalty was still not prohibited under the ECHR because the sixth Additional Protocol was still not entered into force. So, the threat of the death penalty would not have been a reason to prohibit the extradition. But the
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court considered that the claimant would have to face a long period of time expecting his death and would therefore manifest the so-called death cell syndrome. This is a kind of permanent mortal fear that deprives a person of the ability to maintain personhood. The Court considered subjection to the death cell syndrome as a violation of Article 3 ECHR. Consequently, the accused could only be extradited to the US after the US government gave guarantees that he would not be sentenced to death.
14.7
The Function of the Right to Life
I come back to my initial thesis—a violation of the right to life does not produce a victim. Post death there is nobody who may be said to be in an inhuman state. In other words, it seems that the violation of the right to life does not produce any damage. So, I must ask again: how is it possible to understand the right to life as a human right? I think the function of the right to life is not to protect the people being killed from an inhumane condition, but rather to protect those who no one wants to kill, but who have to live in a society where it is permitted to kill people if “good” reasons can be found for doing so. Because if it is permissible to kill humans if there are “good” reasons to be found for doing so, then the lives of those nobody wants to kill are only owed to certain “good” reasons and/ or the coincidental absence of reasons which would argue for their killing. Everyone in such a society knows that they are allowed to live only because there are currently more reasons for than against it in the eyes of the others. In a society where the absolute right to life is not recognized, everyone knows that their life has only a relative value not only in the eyes of everyone else, but also in their own eyes. Each must be aware that they are ultimately valued by others only for the benefit that their existence brings to society. The value of one’s own life always depends on the relative and contingent interest that society has in the lives of its members. Such a state of law must be considered inhumane. The absence of the absolute right to life leads to an attitude and character of people characterized by a lack of self-respect and a tendency to self-degradation. It is not possible to deny the absolute right to life and at the same time maintain a sense of one’s own and others’ human dignity. The value that the members of such a society ascribe
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to themselves and to others can only be an instrumental value. The members of such a society will therefore also lose the language and the power to defend themselves against the violation of all other human rights. In a sense, then, we can say that the function of the right to life is a symbolic one. The disregard of this right does not lead to physical injuries, but to mental and intellectual injuries. This symbolic function of the human right to life makes the difference between a society whose members are aware of their dignity and a society whose members are not aware of it. What applies to the right to life, however, also applies to all other human rights. We are used to always looking at the victim who passively suffers the violation when human rights are violated. But the violation of human rights always hurts not only the victims but also the perpetrators and those who are willing to tolerate the perpetrators and their actions. Both the perpetrators and those who tolerate them become, in turn, victims of any human rights violation. This is because acquiescence or indifference to a human rights violation leads to the loss of consciousness of being someone and not just something. This confirms the thesis of equiprimordiality (see 7 Chaps. 5 and 6). As you hopefully recall, this thesis explains why disregard and devaluation of the personhood of others inevitably leads to disregard and devaluation of one’s own personhood. From these considerations follows that the right to life must indeed be considered a human right that protects the life of the human person from any kind of attack. There is no justification for the deprivation of life, at least not against or without the will of the person from whom life is to be taken. The concrete violation or the abstract disregard of the human right to life leads to a symbolic devaluation of the personhood of all other members of society. Such acts of devaluation have very bad consequences for the perpetrators and for the society that tolerates such acts. I have no doubt that the same is true for abortion. In the discussion about this issue, the only question is always whether the embryo is harmed by its destruction. But that is not what matters. In a society where abortion is a permissible option for family planning, every born human being must know that they owe their existence only to the contingent circumstance that there have been no sufficiently serious reasons against their existence. I am firmly convinced that
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this knowledge is not without consequences for the personal self-confidence of people. Nevertheless, the question arises whether there can also be acts of killing that are not connected with such devaluation. Suicide cannot be considered an act of killing that devalues the absolute status of the other members of society. Incidentally, this also applies to the assistance of suicide. Moreover, this also applies to killing on demand. A person who wishes to commit suicide or who wishes to be assisted in their suicide, or who asks to be killed, expresses a will that is guided by their own considerations and reflections, unless specific circumstances indicate otherwise. Therefore, the free will of such a person deserves respect. Such respect can under no circumstances lead to a devaluation of the personhood of others. A more problematic case refers to the so-called final rescue shot. Let’s take the example of a kidnapper threatening to shoot a hostage every 10 min. Let’s say that they have done so several times. A sniper can prevent the next hostages from being killed by killing the kidnapper with a targeted shot. Is this a case where we can say that it is possible to kill a person without any devaluation of the dignity of all other members of society? Can we say that the symbolic function of the right to life is not activated in this case? A similar question concerns the issue of killing in a war when the war is just, that is, a purely defensive war. ? Do You Still Remember? 1. The right to life has a unique character that distinguishes it from all the other human rights. What is the difference? 2. What is the core function of the right to life? 3. Is there a justification for the death penalty? 4. Is there a justification for assistance to suicide or acts of killing on demand?
For the answers, see 7 Chap. 21.
Reading Recommendations Fichte, Johann Gottlieb: see chapter 5. Robespierre, Maximilien de: On property. Speech of 24 April 1793 https://rbzpr.t umblr.c om/post/143313847630/robespierre-o n- property-24-april-1793 Tiedemann, Paul: Is There a Human Right to Life? In Jahrbuch für Recht und Ethik/Annual Review of Law and Ethics 20 (2012), 345
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Tomuschat, Christian/Lagrange, Evelyne/Oeter, Stefan (eds): The Right to Life. Leiden/Boston 2010 UN Human Rights Committee: General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the right to life, – CCPR//C/GC/36 – https://tbinternet.ohchr. org/Treaties/CCPR/Shared%20Documents/1_Global/CCPR_C_ GC_36_8785_E.pdf
Case Law BGH, d. of 28/06/2022 – 6 StR 68, 21 – (killing on demand)https://juris. bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gerich t=bgh&Art=en&sid=d3e7b4b12627c5d85d4963b2696b5ade&nr= 130875&pos=19&anz=38 BVerfG jud. of 25/02/1975 – 1 BvF 1,2,3,4,5,6/74 –, BVerfGE 39, 1 [42] (Abortion I) BVerfG jud. of 28/05/1993 – 2 BvF 2/90, BVerfGE 88, 203 (Abortion II) BVerfG jud. Of 26/02/2020 – 2 BvR 2247/15 –, (“Assisted suicide”)http:// www.bverfg.de/e/rs_20200226_2bvr234715en.html ECtHR, jud. of 07/07/1989, – 1/1989/161/217 –, Soering v UK, HUDOC
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Social Human Rights Contents 15.1
he Distinction Between Liberal T and Social Human Rights – 280
15.2
he Codification of Social T Human Rights – 280
15.3
he List of Codified Social T Human Rights – 283
15.4
he Goods of the Social T Human Rights and Its Relevance for Humane Living Conditions – 284
15.5
ddressees of Social Human A Rights – 289
15.6
uties to Refrain from Doing D Something and Duties To Do Something – 291
15.7
“ Social Human Rights” As State Goal Resolutions – 294
15.8
he Redundancy of Social T Human Rights – 296
© Springer Nature Switzerland AG 2023 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-031-32292-1_15
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he Right to Natural T Resources – 298
15.9.1 15.9.2 15.9.3
T he Rights to Water – 298 Right to Compatible Global Climate – 299
Reading Recommendations – 303
277 Social Human Rights
Social Human Rights and Liberal Human Rights While the so-called classical or liberal human rights refer only to the respect for one’s human dignity and to the duty to refrain from any action by which the personhood of other persons could be damaged, the so-called social human rights refer to the duty to do something, namely to establish living conditions that allow a dignified life. According to the UDHR and the ICESCR of 1966, conditions of that kind embrace guaranteed access to the subsistence minimum, access to labor, fair working conditions and fair remuneration, access to an education system and to cultural life, and access to a healthy environment or a public health care system (“right to health”).
The Conditions of a Dignified Life If the life of a human being is epitomized by the daily struggle for survival which consumes almost all physical and mental power, then in this life there is no room for self-designed authentic self-determination on the basis of one’s own considerations and reflections. Therefore, a sufficient subsistence minimum is a basic condition of a dignified life. If the life of a human being is epitomized by the daily struggle against pain or the obstacles of physical or mental disabilities which consume almost all physical and mental power, there is in this life no room for self-designed authentic self-determination on the basis of one’s own considerations and reflections. Therefore, a healthy environment and an adequate health care system are basic conditions of a dignified life. Education and access to the cultural life of society are the basic conditions of rational considerations. They protect against manipulation and widen the options for a life according one’s own life plans. A sufficient and appropriate level of education and the access to the cultural life of the society are therefore a required condition for a dignified life. Labor must take place under fair conditions and be free from exploitation. These are required conditions of a dignified life because otherwise the worker is deprived of the freedom of a self-designed life based on authentic free will.
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The Right to Labor Labor as such cannot be considered a required condition of a dignified life. The idea of labor as an intrinsic value and basic condition of a dignified life is deeply rooted in what Max Weber has called the “spirit of capitalism based on protestant ethics.” It is to be considered pure ideology. From this follows that, for example, an unconditional basic income does not violate human dignity and is not a threat to a dignified life.
“Social Human Rights” are not Rights! The UDHR as well as the ICESCR of 1966 do not take the term “right” seriously. Article 22 UDHR does not oblige the states to recognize given moral rights, but it obliges the states to create the institutions to which economic, social and cultural rights can guarantee access. This obligation is not mandatory and depends on the resources of each state.
Human Rights are Defensive Rights Human rights always refer only to duties to refrain and never to duties to perform. This is because an obligation to perform cannot be absolute under any circumstances, because performance depends on three contingent conditions: (1) there must be sufficient resources; (2) it must be immoral to use the available resources for other purposes; (3) there must be no overburdening of the service provider. Rights to provide services can therefore only be created by positive law in consideration of these three preconditions.
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State Goal Resolutions The codified so-called social human rights should be regarded as state goal resolutions. These goals are supposed to establish stepwise dignified living conditions for everyone. Dignified living conditions are characterized by the availability of all resources and means which are necessary for the development and maintenance of personhood.
Social Human Rights in Case Law The aims of social human rights can also be achieved on the basis of pure liberal human rights. This is evident in the case law of the ECtHR (Judgment of 21 January 2011—M.S.S. v. Belgium and Greece—§§ 249, 250, 263, 264). According to this judgement, the ban of cruel (“inhuman and degrading”) treatment (Article 3 ECHR) involves a right to access to social institutions. Duties under Article 3 ECHR do not impose an obligation to do something but they impose an obligation to refrain from doing something, namely the exclusion of people in need from the social institutions which are dedicated to the aim of supporting people in such a situation.
Right to Water and Climate Protection The right to water demanded in a UN resolution is, in terms of its function, also only a state policy objective. The BVerfG ruling of 2021 on climate change claims a (fundamental) right to protection of health from the dangers of climate change, but does not actually fulfill this claim. In this respect, it is merely misleading rhetoric.
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15.1
Omission v. Action
This lesson is dedicated to the so-called social human rights. The attribute “social” serves here to distinguish this group of human rights from the group of the socalled liberal human rights. All the rights I have dealt with before in this book were liberal human rights. In principle, the difference between these two groups is not a difference in terms of the protection scope. Generally, we can say that the idea behind social human rights, as well as behind liberal human rights, is the protection of human dignity. The difference, however, is that the liberal rights refer to a prohibition. They prohibit the deprivation of a specific good that is necessary in order to maintain a state of living under humane conditions. The violation of liberal rights lead to a state of living under inhuman conditions, i.e., under conditions that contradict human dignity. Liberal human rights refer to the duty to respect. Respect means to refrain from doing any action by which goods which are the basis of a life under humane conditions are deprived. The aim of liberal human rights is, so to say, to leave the world as it is. In contrast, the social human rights do not refer to omissions, but rather to active actions. They command the production of those needed goods which are the basis of life under humane conditions. The aim of social human rights is, so to say, to change the world by improving the conditions of life in order to first make a life under humane conditions even possible.
15.2
15 UDHR
he Distinction Between Liberal T and Social Human Rights
he Codification of Social Human T Rights
The principle of social human rights is expressed in Article 22 UDHR (see . Fig. 15.1). It is interesting to see that Article 22 seems to refer only to one human right, namely the right to social security. Furthermore, the states should only be obliged to make efforts at the national and international levels, within the resources available to them, to establish economic, social, and cultural rights. So, these latter rights are not immediately accessible. They must first be established and this depends on the available number of resources.
281 15.2 · The Codification of Social Human Rights
. Fig. 15.1 Article 22 UDHR
In any case, according to the wording of Article 22, there seems to be a subjective right which is directly established by that article, namely the right to social security. Nevertheless, this “right” is also not meant as a real right on its own. Its content follows only from the following articles which refer to the right to labor (Article 23 UDHR), the right to rest and leisure from labor (Article 24 UDHR), the right to an adequate standard of living (Article 25 UDHR), the right to education (Article 26 UDHR), and the right to participate in cultural life (Article 27 UDHR). So, in other words, the expression “right to social security” does not have any substantial meaning. It operates only as a collective name for the enumerated single social rights. Article 22 UDHR obviously does not refer to supra-positive moral rights, but only to a duty of the states to establish certain rights as far as it is possible and reasonable. The consequence of this fact is that a lack of social human rights in a particular state does not indicate that the state in question does not respect human dignity and is therefore an unjust state. It indicates only that there are some deficiencies. But it is not possible to classify these deficiencies as a lack of morality. They could be simply caused by a lack of resources and therefore be morally indifferent. Furthermore, it is not possible to infer a certain morally required standard of human rights from a given number of resources. For it is legitimate to allocate a given number of resources in different ways. The allocation of given resources is largely a question of politics and not a question of morality because it can hardly be said that a certain kind of allocation is to be considered immoral. So, it is not only morally possible to only invest the resources for the realization of one or two social rights while the others are put aside, but also possible to completely use the resources for other aims and not fulfill the aims of Article 22 without any conflict with morality. So, it is imaginable that a state invests all its available resources
Right to Social Security
Resources and Allocations
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Only the State as Obligor
Members of Society
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for the sole aim of establishing public security or in favor of the protection of the country against natural disasters (e.g., by building dams and dikes), or perhaps also in favor of military defense in a particular situation of external threats. There is another difference to liberal human rights. The obligor of liberal human rights is not only the state, but primarily every single person. The state is to be considered an obligor of liberal human rights only in a derived sense. In contrast, social human rights can only be addressed to the state. They aim to achieve social standards of living whose set up depends on resources which are always beyond the resources of single individuals. Institutions of social security are always based on a specific common cooperation while the respect toward liberal human rights does not depend on any kind of social organization. The validity of liberal human rights does not depend on the existence of states. In contrast, social rights can only exist where there is a functioning state that can be the addressee of these rights. Liberal human rights can be violated regardless of whether there is a functioning state or whether there is an existing state at all. Social human rights presuppose the state as an addressee and that the respective state has established social institutions. The establishment of social institutions and the introduction of social human rights to access to them is, however, a question of positive law. There is a third difference between social human rights and liberal human rights. Social human rights presuppose social cooperation within the framework of a functioning state. State cooperation or social cooperation within the framework of the state primarily serve the members of the cooperative community, i.e., those who participate in the cooperation through their own contributions. Therefore, in general, only the residents or citizens of the state are recognized as the bearers of social rights. This is expressed in Article 22 of the UDHR by the words “member of society.” It is true that a state may also create social institutions for people who are neither citizens nor residents and therefore do not participate in social cooperation. But in the first place only the participants in the common cooperation will be considered as bearers of social rights on the national level, because these rights are only made possible by this cooperation. Insofar as third parties benefit from social institutions (e.g., foreigners, refugees, recipients of development aid, etc.), it is always a question of political
283 15.3 · The List of Codified Social Human Rights
decision as to whom exactly these rights should be granted. In any case, what applies to liberal human rights does not apply to social human rights, namely that every person must be regarded as a bearer of these rights simply because they are a person. Being a person alone is not sufficient to justify access to a state’s social institutions. From all this follows that the expression “rights” in Article 22 UDHR is not accurate. It does not express what is really at stake, but only creates false associations and unrealistic expectations, the disappointment of which is inevitable. If the term “social human rights” is nevertheless used in the following, this is solely due to the fact that this corresponds to the linguistic regulation of international law. One must always bear in mind that these are not really human rights. One should actually speak of so- called human rights.
15.3
he List of Codified Social Human T Rights
The UDHR enumerates four groups of social rights, which all together consist of thirteen particular rights: 1. Rights concerning labor (Articles 23 and 24) (a) The right to labor (b) The right to free choice of employment (c) The right to just and favorable conditions of work (d) The right to protection against unemployment (e) The right to equal pay for equal work (f) The right to a sufficient remuneration in order to ensure the subsistence minimum under humane conditions of life (g) The right to form and to join trade unions (h) The right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay 2. Rights concerning the unconditional subsistence minimum in the event of circumstances beyond one’s control. (Article 25) 3. The right to education (Article 26) (a) The right to free access to elementary schooling (b) The right to equal access to professional and higher education on the basis of merit (c) The right of parents concerning the priority by choosing the kind of education for their children.
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4. The right to participate in the cultural life of the community (Article 27) These rights declared in the UDHR were transformed into international binding law by the International Covenant on Economic, Social, and Cultural Rights of 16 December 1966. In contrast to the UDHR, the Covenant of 1966 added a fifth group of rights (Article 12), namely: 5. The right “to the enjoyment of the highest attainable standard of physical and mental health” (right to health) There are also several international conventions that provide additional rights to this corpus of social human rights, for example, the right to educational promotion of handicapped children (Article 23 UN Convention on the Rights of the Child—CRC). The ECHR does not contain social human rights. The members of the Council of Europe agreed, however, on the European Social Charter of 18 October 1961 and its three additional protocols from 1988, 1991, and 1995. The legally binding nature of the ICESCR and the other international covenants in which social human rights are agreed upon does not change the fact that these are also not genuine subjective rights to which every human being is entitled to by virtue of being human. The legally binding nature of these rights relates only to the relationship between the signatory states. In the treaties, the latter have undertaken to give account of their social policy to the other contracting parties and to the international agencies created by the treaties and to face the criticism of the international community.
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15.4
Subsistence Minimum
he Goods of the Social Human Rights T and Its Relevance for Humane Living Conditions
We should now briefly consider whether the codified social rights, whether or not they contain genuine rights, in any case address protective goods whose availability must be regarded as a necessary condition for a life in dignity, so that we can say that the lack of these goods makes a living situation inhumane, so that this lack should be overcome if possible.
285 15.4 · The Goods of the Social Human Rights and Its Relevance…
First, we can ask whether from the viewpoint of human dignity there is a strong desire to guarantee access for all persons to a subsistence minimum. The subsistence minimum embraces enough food, clothing, and accommodation. I think it is indeed obvious that there is a very close connection between the subsistence minimum and a dignified state of living. Someone who suffers from a lack of the minimum of food that is needed for the maintenance of physical life is not able to lead their life based on an authentic will. Their life is completely filled with the search for food if they are not already too weak to look for food and can thus only vegetate. Someone who is homeless and lives on the streets will suffer from a lack of privacy and basic security, which prevents them from relaxing and coming to themself. So, it is obvious that the subsistence minimum is indeed a necessary condition of a dignified state of life. The same thing becomes clear when we consider a severe lack of health. Living in severe illness or with severe handicaps or diseases hinders persons from leading their own life on the basis of their own considerations and reflections because all their strength and all their mental as well as physical energy is focused on the suffering of pain or the surmounting of everyday obstacles. I think this is so obvious that there is no need for more detailed explanations. But what is about education? Article 26 (2) UDHR provides a useful hint regarding this question (see . Fig. 15.2). In particular, the first sentence shows why education is closely connected with a dignified state of life. Education provides the means that someone must apply when considering and reflecting upon and creating their own free will. The ability to produce an authentic will depends on the ability to collect information and the appropriate consideration of such. This requires the ability of intellectual analysis which is based on a proper
. Fig. 15.2 Article 26 (2) UDHR
Health Care
Education
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Cultural Life
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Right to Labor?
capacity to use language. The development of a sufficiently sophisticated language is the most important aim of education as long as it is to be directed to the full development of personhood and the ability to create an authentic personality. Another aim of education must be the strengthening of respect for human rights. This is also a necessary condition for the development of an authentic personality because only the consciousness of human rights and human dignity makes a person able to reflect upon personhood and the absolute value of the personhood of oneself and of others. Education about human rights leads to the consciousness of personhood and of the fragility of personhood. It makes a person aware of the risks and threats to personhood and vigilant of the protection of personhood. Above all, it also provides the language that enables people to express their own human rights concerns and assert them in society. These are the conditions under which it is first possible to make use of human rights. The right to participate in the cultural life of the community is a condition of communication and a necessary means for real utilization of the communication rights. Someone who is excluded from the cultural life of the community is not able to consider all the available aspects that are relevant for their life plan and that are, in principle, available in the community. So, exclusion functions as a sort of manipulation of the will of the excluded individuals. So, we can recognize that the right to subsistence minimum, the right to health, the right to education, and the right to participate in cultural life indeed serve a standard of living where persons can freely develop their personality on the basis of their own considerations and reflections to lead a dignified life. But what about the right to labor? In the states shaped by Marxist–Leninist ideology, the right to labor has actually been realized. For example, in the German Democratic Republic, which existed between 1949 and 1990, there was also a job guarantee linked to a minimum wage. It led to chronic loss-making businesses and a massive loss of prosperity. However, this is not an argument against the right to labor. If human dignity demands this right, then losses in prosperity must also be accepted for the sake of this absolute value. However, a decent life is conceivable even without paid employment.
287 15.4 · The Goods of the Social Human Rights and Its Relevance…
I guess that the idea according to which labor is considered an intrinsic value and even a good that is a necessary condition of a humane state of living is based on a certain ideology which is typical for the cultural identity of the societies of Central and Northern Europe as well as in the Anglo-Saxon hemisphere. This ideology goes back to the times of the European Renaissance and is closely connected with the history of the Reformation. The Reformation movement was strongly influenced not only by Martin Luther (1483–1546) but also by the Swiss theologians Huldrych Zwingli (1484–1531) and Johannes (Jean) Calvin (1509–1564). In addition, I should mention the Scottish reformer John Knox (1514–1572). Their great influence in the development of the Central European assessment of labor was analyzed by the famous German sociologist Max Weber (1864–1920) in his 1904/05 work The Protestant Ethic and the Spirit of Capitalism. According to Weber, the basic idea of the protestant work ethos is that labor has value in itself. We should not work only because it is necessary to work in order to ensure our livelihood, but because labor is the meaning of life. It is not possible to live a meaningful human life without working. This idea is in particular confirmed by the teachings of Jean Calvin. They consist of five points, among them the points of total depravity and unconditional election. Total depravity means that human beings by nature are not able to understand the holy scripts and that they therefore are damned to go to hell after their death. Only few numbers of human beings are unconditionally elected by God. They will rise on the last day and come to heaven. Those people who are elected by God are already identifiable during their life on earth. They are, so to say, marked by their successful and pious life on earth. Therefore, if there is a person who is very successful in business and enjoys economic wealth, it can be concluded that this person has been elected by God. The belief in these teachings led to a strong motivation to be diligent and industrious and always pursue economic success. People did not pursue wealth in order to enjoy their life by consuming their money. Instead, they worked in order to get money that could be invested in new industrial equipment in order to get more money that could be invested to get still more money, etc. They lived very simple, modest and frugal and tried to work and to work and to work. They invested the results of their work always in new ventures and continued
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to work in order to confirm to themselves and to the society that they had been elected by God. So not only they but the entire society became more and more rich. The protestant spirit of capitalism finally led to the big industrial states in England, in the United States, in The Netherlands and in the Scandinavian countries as well as in some parts of Germany. At the end of the nineteenth century, it was obvious that the protestant countries had achieved a much higher standard in terms of economy and industrialization then the catholic countries around the world. In Germany, one could easily see that the protestant parts of the country were much richer than the catholic parts. The idea that labor has an intrinsic value was a pure ideology. But this ideology was very useful to develop the country. So, it is at least partly true to say that our current economic wealth is based on a very strange ideology of the sixteenth century. And the most important part of that ideology was the idea of the intrinsic value of labor. Protestant ethics has not only strongly influenced central and western European as well as American capitalism0., but also the labor ethos in the context of Socialism and Communism. So, labor was also considered in the Soviet communism as the core of the meaning of life. Only a worker was considered as a member of society that could be taken seriously and that could expect some respect. The current influence of the protestant ethics is clear to see in the context of the debate about an unconditional basic income (UBI). Although everybody knows that the increasing automatization of the industrial production as well as of huge parts of what is called the services sector will very soon lead to increasing unemployment, these changes are not like those of the past, which resulted from regular economic fluctuations. These current changes are characterized by a deep systemic change in the structure of production. As a result, opportunities to find paid labor are diminishing. We can observe a strong resistance in particular from representatives of trade unions and political parties of the left wing against UBI. For them, the value of labor is not only an extrinsic one. Labor is for them not only a means of survival under certain social conditions. It is rather an intrinsic value. For them, labor has value in itself. Therefore, they cannot imagine a society in a dignified state of living that is not based on labor, but on automatization.
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It is obvious that this idea is completely different from the attitude toward labor that is common outside of the Protestant culture. In Catholic countries like Italy or in orthodox countries like Greece nobody would share this idea. Outside the Protestant culture, labor is considered only as a means of life that is largely unavoidable. But it is not an end in itself. In other words, outside Protestant ethics it is not understandable why labor should be a constituent condition of a dignified state of life. This is why I think that labor is not really a required condition of a dignified life under every conceivable circumstances. The right to labor is therefore rather to be considered a fake human right. In 7 Chap. 17, I will present some additional fake human rights. In order to avoid misunderstandings, I want to add that it is of course an attack on the freedom of a person to prevent them from working when there is work available and when they need to work in order to earn their livelihood. On the other hand, if the economic situation is such that labor is not needed, in other words, when there is no demand of labor, then there is no violation of any right even if the person concerned would like to work. In contrary, it would be simply nonsense to establish opportunities for work without any economic demand for work. I will not discuss the codified rights concerning decent working conditions further below. They are only partly rights to a benefit (e.g. paid leave). The other part are rights to omission (e.g., exploitation by too low wages). In the following, we will focus on the rights to a minimum subsistence level, education and health.
15.5
Addressees of Social Human Rights
Now I want to come to the philosophical core questions related to the so-called social human rights. As we have seen before, the expression “right” makes less sense in combination with “to health” or “to education” because such a right can only be understood as a right to access to institutions of healthcare or institutions of education. And these institutions must first be established before access to them can be available and a right to access can be conceivable. This suggests that social human rights should perhaps be understood rather as rights to the creation of the social institutions in question. This presupposes that someone has the duty to create such institutions, and to do so suf-
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ficiently so that all people can have access to them. After all, these are supposed to be human rights and not merely rights for the citizens of a state or for some otherwise defined subset of humanity. We have already seen above that in the presently codified human rights catalogs, including the ICSECR, such duties have not been enshrined. Nevertheless, from a philosophical point of view, it is possible and reasonable to ask whether there is a superpositive duty, derivable from the principle of human dignity, to create social institutions in sufficient number and quality, which serve to ensure humane living conditions for all human beings. Individuals can hardly be obliged to do this, because no one would have the power and the means to fulfill such an obligation. Rather, the establishment of a sufficiently efficient social infrastructure requires the cooperation of many who are collectively capable of doing so. Before such communities are established, they cannot be addressees of duties because they do not exist. There is also no individual duty of all individuals derivable from human dignity to found such communities. This is because no individual human being has the power and the ability to make all others or a sufficiently large part of all others cooperate. Each person bears responsibility only for themself and not for what others do or do not do. This only leaves the question of whether the duty to create a social infrastructure available to all mankind can be addressed to communities that already exist today. The states are the first to come into consideration for this, at least those states which are above average wealthy and powerful. However, there is currently not a single state in the world whose power and wealth would be sufficient to ensure a minimum subsistence level for all humanity and to provide access to health care and education. If at all, only an alliance would be able to do this, which would have to consist of all states, if possible, or at least of the wealthier states. Such an alliance does not exist at present. No individual state can have the obligation to found such a network. In this respect, nothing else is true other than what has already been said on the question of whether individuals can be obliged to establish cooperative communities. These considerations show that the concept of social human rights already fails because no one actor can be named who can bear the corresponding obligations.
291 15.6 · Duties to Refrain from Doing Something and Duties...
15.6
uties to Refrain from Doing D Something and Duties To Do Something
The above considerations, however, lead to far more fundamental findings. If human rights are absolute subjective rights that must be fulfilled without any ifs and buts, then this already rules out the possibility that there can be human rights to active acts. Human rights always and exclusively refer to duties of omission. Therefore, the concept of social human rights is already conceptually impossible. However, this applies not only to social human rights, but also to human rights obligations to protect, which are assumed by states. Such an assumption of duty is found in Article 1 (1) of the Basic Law (see . Fig. 15.3). In the second sentence of this norm, the duty of the state to respect human dignity and the duty of the state to protect human dignity are placed on an equal footing. This means that the state is not only obliged to refrain from any interference with or violation of human rights, but also to take active measures to prevent third parties from violating human rights. In this respect, the Basic Law makes no distinction between refraining and doing. Not only the duty to respect but also the duty to protect apply absolutely. If one takes Article 1 (1) sentence 2 GG seriously, the state acts unconstitutionally if human rights violations by third parties occur on its territory and it does not take (sufficient) protective measures against them. If the state fails to provide protection, this constitutes a breach of duty on the part of the state, which should lead to corresponding claims for damages. The idea of the equal status of omission and action in the first article of the Basic Law is based on an intellectual fallacy, namely the lack of differentiation between desires and duties. The concept of human dignity, as we saw in 7 Chap. 6, refers to something we desire because it has an absolute value for us. Human rights, on the other hand,
Human dignity shall be inviolable.To respect and protect it shall be the duty of all state authority. . Fig. 15.3 Article 1 (1) GG
Omissions/Actions
Art. 1 (1) GG
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refer to duties. However, the value of human dignity cannot be fully transformed into human duties. Our power to desire is, in principle, infinite. We can wish to be an angel or to travel to the center of the earth. In contrast, our power to act is very limited. We feel the absolute value of personhood as an inner compulsion, that is, as a duty to respect, protect, and enable it at all costs. But this pressure felt before the conscience remains ineffective if the duty demands something beyond our ability (ultra posse nemo obligatur). Duties are thus conceivable only within the framework of what we are capable of doing. It is true that one might think that the absolute value of humane living conditions requires every human being to devote all of their energy to the creation and defense of humane living conditions for all human beings. However, no single person is in a position to ensure humane living conditions for all people in need. When we decide to help people in need, we are always forced to choose whom to help, in what way, and to what extent. There is no rule for this choice, so the question of what we are obliged to do cannot be answered by such a rule. Discretion is always necessary. But when discretion comes into play, there can be no compulsion to do anything in particular, and consequently there can be no duty. What applies to the individual in this respect also applies to the state. States are not omnipotent either. Their possibilities are limited and therefore it is inevitably a matter of political discretion whether and to what extent the state grants protection against human rights violations by third parties, or establishes social institutions in order to thereby create humane living conditions. Therefore, the state is not acting unconstitutionally if it chooses, for example, to refrain from a strict lockdown and keep workplaces or schools open, even though this increases the risk for vulnerable groups to be infected by and die from Covid-19. It is a matter of political choice how far health protection goes in this respect. This legislative discretion must also be taken into account when discussing the medical ethics issue of triage. There can be no absolute duty to rescue seriously ill or wounded people and consequently there is no corresponding right. Thus, the legislator, as well as the physician faced with such a decision, can decide who should be helped and who should not. From the general human rights claim to respect, it can only be deduced that the selection may not be made arbitrarily, but must be made according to fixed
293 15.6 · Duties to Refrain from Doing Something and Duties...
criteria oriented to the matter in hand. Selection on the basis of characteristics such as race, religion, gender or similar is therefore ruled out. Criteria based on the responsibility of those in need of help, on the other hand, would be appropriate. For example, in a triage situation, preference for lung transplantation could be given to those whose lungs have been damaged by unavoidable environmental factors and to those whose disease is due to excessive smoking. Similarly, in the context of a pandemic, situations can be imagined in which it may be justified to give priority to those who have been vaccinated. Similarly, whether or not the state criminalizes human rights violations by third parties, such as abortion, is a matter of policy. In a democratic society where most of the members have no ethical objections to abortion, criminal protection of the human embryo is politically unenforceable. That alone does not make a state an unjust state. The only decisive factor is whether it fully complies with its duty of respect. This is doubtful, however, when the law not only permits, but even requires, the financing of abortions by health insurers. There is a second reason why the duties arising from human dignity are limited to duties of respect and do not include duties of action. The value of human dignity refers to the right of self-determination of every human being. Humane living conditions are conditions under which people can determine their own lives according to goals and means they have set for themselves. Without this autonomy, we are always just means and tools used for the benefit of others. Obligations to help and protect in every case in which an inhumane living situation cannot otherwise be avoided would presuppose that we must devote our own lives entirely to alleviating or avoiding the suffering of others. A universal absolute obligation to guarantee dignified living conditions would have a paradoxical consequence: helpers would have to sacrifice their dignified lives in order to help others to live in dignity. But the beneficiaries of this help would not be allowed to enjoy their newly acquired dignified life either, but would have to sacrifice it immediately in order to help those who are still in need. Such a morality would be self-contradictory. It follows from these considerations that the intensity and extent of our commitment to the poor and those in need of protection is a matter of our own discretion. There is not, nor can there be, a rule that determines the extent of our commitment. But again, where there is discretion,
Criminalization of Abortion
Self-determination
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there is no duty. Discretion is exactly the opposite of coercion of will. What applies to the autonomy of individuals also applies to the autonomy of states. Because the claim to state autonomy derives from the autonomy of its citizens. The state’s right to self-determination would come to an end if states were obliged to provide effective assistance and protection wherever humane living conditions could not otherwise be created or maintained.
15.7
Article 22 UDHR/ Article 2 ICESCR
15 Poorness of Language
“ Social Human Rights” As State Goal Resolutions
The codified catalogs of so-called social human rights do not guarantee subjective rights to the establishment of social institutions to ensure subsistence, education, or health. Article 22 UDHR only holds out the prospect of such institutions, subject to the resources available to states and their internal organization. Article 2 ICESCR requires contracting parties to take measures, to the fullest of their abilities, to achieve progressively, by all appropriate means, the full realization of the rights set forth in the Covenant. Thus, again, measures to establish social institutions are only envisaged, but no subjective rights to these institutions are granted. Moreover, states already meet the obligations of the ICESCR when they establish social institutions for their citizens, or for those who are lawfully present on their territory, but not for all people who have a need for them. This is not to be seen as an inadequacy or shortcoming of the codified human rights regime. On the contrary, philosophical analysis has shown that genuine human rights can only ever be subjective rights directed to the refraining of harmful conduct, not rights to the granting of benefits. If these codifications nevertheless speak of rights, this points to deficiencies in the international legal language. The term “rights” is used because there is no expression that could adequately express what is meant. Moreover, there is also a connection in meaning to genuine human rights. For both these rights and the plan to establish social institutions are about enabling people to live under humane living conditions. What is actually meant by the so-called social human rights is that human dignity as an absolute value makes living conditions in which people
295 15.7 · “Social Human Rights” As State Goal Resolutions
lack what is necessary for a life in dignity intolerable. Such living conditions are not to be accepted. There is a strong moral impulse to eliminate them. This urgency is expressed very inadequately and misleadingly by the word “rights.” It would therefore be much clearer if we did not speak of social human rights, but of political tasks and goals that the contracting states have committed themselves to achieving. In German legal terminology, the term “State Goal Resolution” (Staatszielbestimmung) proposed by Hans Peter Ipsen has become established for this purpose. According to this definition, a state goal resolution is a constitutional norm with objective-legal effect that prescribes the ongoing observance or fulfillment of certain tasks by state activity. In the Basic Law, we find state goal provisions in the designation of the Federal Republic as a social state (social federal state or social constitutional state) in Article 20 Paragraph 1 and Article 28 Paragraph 1 as well as in the clauses on the protection of the natural foundations of life and animal protection in Article 20a. It would be possible to adopt this term in the language of international law as well, in particular to designate those internationally binding tasks and goals for which the misleading expression “social human rights“stands today. Like national constitutional state goal resolutions, the codified so-called social human rights do not establish subjective rights, but only objective law between the contracting states. In contrast to state goal resolutions, which are only anchored in national constitutions, those from international treaties lead to the authority under international law of all contracting states to observe and criticize the social, education and health policies of all other contracting states. The contracting states thus subject themselves to the compulsion to justify their social, education and health policies to the international community. They can no longer plead that these policy areas are internal affairs. Considering that there can be neither a subjective right to access social institutions if they do not exist, nor a subjective right to the establishment of such institutions, it seems surprising that on December 10, 2008, the UN General Assembly adopted an Optional Protocol to the 1966 International Covenant on Economic, Social and Cultural Rights, according to which individuals have the right to file a complaint before the UN Committee on Economic, Social and Cultural Rights (CESCR) against their own nation state if they can claim a violation of their
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rights under the International Covenant. Such a complaint procedure actually presupposes that there are subjective rights under the ICESCR whose violation can be claimed. However, this is not the case. The Protocol has so far been signed by 26 states and ratified by 22 states. In the meantime, the CESCR has already developed a considerable practice of adjudication and has upheld the complaints in a few cases. How is this possible if there are no subjective rights that can be violated? However, a closer look at the case law shows that among the successful complaints there is not a single one claiming that a particular state lacks certain social institutions that the state undertook to establish under the ICESCR. Rather, the only successful complaints have been those alleging that the complainant has been wrongfully denied access to an existing social institution. This shows that social human rights can only be effective if the social institutions already exist and access to them is possible. If an individual is then unlawfully denied access by not receiving the benefit to which they are entitled under the institution’s dedicatory purpose, then their complaint before the CESCR has a chance of success. The CESCR thus acts as a kind of international administrative tribunal. In this way, the Committee fills a gap in legal protection in countries that do not have a functioning administrative judiciary, or it functions, as it were, as a kind of extension of the administrative court system that can provide a review of national case law in the last instance.
15.8
15 M.S.S v Belgium and Greece
he Redundancy of Social Human T Rights
In 2011, the ECtHR issued a decision that shows the redundancy of the institutionalized individual complaint according to the above-mentioned optional protocol. The case goes as follows: An asylum seeker entered the European Union in Greece and lived there for a while on the streets. Greece did not give him the opportunity to apply for asylum and did not provide him with any social support. Consequently, he traveled to Belgium and applied for asylum there. The Belgian authorities deported him back to Greece because Greece was, according to the rules
297 15.8 · The Redundancy of Social Human Rights
of the European Union (Dublin Regulation), responsible for the decision about the asylum application. The asylum seeker filed a complaint against Belgium because the state had sent him to a state where his human rights were in danger. He also filed a complaint against Greece because the country had not protected him. The ECtHR considered a violation of Article 3 ECHR. Remember that Article 3 ECHR only contains the ban of torture and inhuman and degrading treatment—pure liberal human rights and no social rights. I quote from the judgment:
»» 249. The Court […] considers it necessary to point out
that Article 3 cannot be interpreted as obliging the High Contracting Parties to provide everyone within their jurisdiction with a home […]. Nor does Article 3 entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living […]. 250. The Court is of the opinion, however, that what is at issue in the instant case cannot be considered in those terms. Unlike in the above-cited Müslimcase […], the obligation to provide accommodation and decent material conditions to impoverished asylum-seekers has now entered into positive law and the Greek authorities are bound to comply with their own legislation, which transposes Community law, namely Council Directive 2003/9/ EC laying down minimum standards for the reception of asylum-seekers in the member States […]. What the applicant holds against the Greek authorities in this case is that, because of their deliberate actions or omissions, it has been impossible in practice for him to avail himself of these rights and provide for his essential needs. […] 263. In the light of the above and in view of the obligations […] under the Reception Directive […], the Court considers that the Greek authorities […] must be held responsible, because of their inaction, for the situation in which he has found himself for several months, living on the street, with no resources or access to sanitary facilities, and without any means of providing for his essential needs. The Court considers that the applicant has been the victim of humiliating treatments showing a lack of respect for his dignity […]
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264. It follows that, through the fault of the authorities, the applicant has found himself in a situation incompatible with Article 3 of the Convention. Accordingly, there has been a violation of that provision.
Here again you can see that social institutions must first be established (accommodation facilities for asylum seekers) or at least the state must be obliged to establish them by positive law (Council Directive 2003/9/EC). Only then does a subjective human right to access come into question because the exclusion of someone in need from a social institution can be considered an inhuman treatment and a violation of classical liberal human rights. In this respect, the Court focuses on the prohibition of degradation in Article 3 ECHR. Our analysis of Article 3 ECHR (see 7 Chap. 8) has shown that the differentiation between inhuman and degrading treatment as made by the ECtHR is not convincing. Degradation and inhumanity are synonyms. Moreover, they characterize any human rights violation and do not refer to that specific type of human rights violation that Article 3 ECHR is concerned with, namely cruelty resulting in violations of physical and mental integrity. The judgment is nonetheless convincing in its outcome, because it is cruel to deprive a person of the shelter, food and sanitation to which they are entitled, and thus actively prevent them from leading a life of dignity.
15.9
The Right to Natural Resources
Recently, the question of the legal protection of the natural resources of life has come into focus. It is currently being discussed more intensively than the question of protecting the economic and social resources of life.
15 15.9.1 GA Resolution 64/292
The Rights to Water
At the international level, the right to water and sanitation, which the UN General Assembly called for in a resolution of July 28, 2010, should be mentioned in this context. Just as little as through the Universal Declaration of Human Rights adopted by the UN General Assembly, this is not binding law. This is because the UN General Assembly does not have the power to create binding law (Article 13 UN Charter). In this respect, it only makes
299 15.9 · The Right to Natural Resources
recommendations, which can, however, lead to binding international law, as in the case of the UDHR finally happening through ICCPR and ICESCR. Therefore, it is a meaningful philosophical question whether the right to water demanded by the UN General Assembly can be understood as a genuine moral right, which as such is suitable to be transformed into a subjective juridical right. However, this must be denied for the same reasons that have already justified the impossibility of so-called social human rights. The resolution is not about access to water at all, i.e., not about the consequences of climate-related drought. Rather, it is about access to clean water. Many people in developing countries do not have access to clean water because garbage, feces and agricultural waste end up untreated in lakes and rivers. As a result, 1.5 million children die each year from contaminated water. The only way to remedy this situation is to create sanitary facilities, sewage treatment plants and a sewerage infrastructure. An enormous financial, planning and construction effort is therefore required to guarantee the population clean drinking water. As in the case of the so-called social human rights, it is thus evident that there can be no subjective right to (clean) water as long as there is a lack of the necessary infrastructure and that there can be no right to the creation of the same, because this depends on the financial resources available to the states. The Water Resolution therefore also stipulates that states and international organizations should push for the creation of the necessary water infrastructure systems. The resolution thus fixes state goals. To the extent that it simultaneously asserts a subjective moral or even juridical right to clean water, it is mere rhetoric owed to the poorness of international legal language. 15.9.2
Right to Compatible Global Climate
The skepticism against subjective human rights to benefits advocated in this chapter seems to be refuted by a 2021 ruling of the BVerfG, in which the court seems to recognize a subjective (fundamental) right to protection from the dangers of climate change and to make it the basis of its judicature. A closer look, however, shows that the impression is deceptive.
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First, however, the court asserts that the right to physical integrity guaranteed in Article 2 (2) of the Basic Law includes a right to protection against the threat to health posed by climate change (paras. 144ff.). However, the high expectations raised by this are completely disappointed in the further course of the explanations. A right to protection against the health consequences of climate change fails, as the court states, because the German state has no power whatsoever to influence global climate change on its own to such an extent that any health risks for individual people would be averted. In order to be able to do anything at all against climate change, the German state must limit itself to seeking international cooperation and making its own fair contribution to combating climate change in association with all other states in the world (para. 149). Thus, the claim to protection of health shrinks to a claim to international cooperation. The court fails to mention that there can only be international cooperation if not only Germany but also all or at least most of the other states participate in it. However, Germany has no influence on whether and to what extent the other states want to cooperate. Thus, the claim to health protection shrinks to a claim to foreign policy efforts to cooperate with an uncertain outcome. If one also considers that the Basic Law does not say exactly which measures must be taken in order to be able to establish a sufficient foreign policy effort, but that the duty to protect is, as the court itself aptly puts it, “fundamentally indeterminate” in this respect (para. 152), then it becomes apparent that the bottom line is that nothing remains of the right to protection of health from the consequences of climate change. The court does reserve the right to intervene and find a violation of the state’s duty to protect if the state either remains completely inactive or the measures taken are completely inappropriate or inadequate (para. 152). The accusation of complete inaction, however, can be countered even by the climate-conscious Sunday speech of a member of the government. The accusation of complete inadequacy of measures is, as the outcome of the proceedings shows, so vague that no one can think that they have a right to anything in this respect. However, the BVerfG had to decide on a situation that was already characterized by international cooperation to a large extent. This cooperation had led to the 2016 Paris Climate Protection Agreement, which commits signatory states to make contributions to keep the increase in the
301 15.9 · The Right to Natural Resources
average temperature of the Earth “well below 2 °C above pre-industrial levels” and to make efforts “to limit the temperature increase to 1.5 °C above pre-industrial levels.” Parties also committed to increasing their capacity to adapt to the adverse effects of climate change. The Bundestag had enacted a climate protection law in December 2019 to implement these obligations under international law. This stipulated that climate neutrality should be achieved by 2050 and that a reduction in greenhouse gas emissions of 55% compared to 1990 should be achieved by 2030. The BVerfG does see that, based on current research, the target of “well below 2 °C” will probably not be sufficient, as tipping points may already be reached at a global warming to 1.5 °C, which would lead to an uncontrollable increase in CO2 emissions and make any health protection by stopping climate change obsolete (para. 161). Nevertheless, it accepts the statutory climate targets and refers in this respect to the legislature’s broad scope for assessment and to the fact that it is not certain whether the fears of science will actually materialize (para. 162f.). This is remarkable insofar as the court explicitly refers to the principle of risk minimization at another point in the judgment (para. 194). At this point, however, the size of the risk plays no role. This shows how unlikely it is that the BVerfG will ever find that protective measures are completely inadequate. Rather, the ruling leaves the impression that certain arguments, such as risk minimization, are only used where they do not call the legal requirements into question. However, the court then backs up its readiness to take risks shown at this point by pointing out that it is within the legislature’s creative freedom to avert threats to health in other ways, namely through adaptation measures that make people more resistant to the dangers of climate change. One thinks here, for example, of higher dikes, climate- friendly urban development, and similar measures. If this argument is to justify exceeding the 1.5 °C target, however, it should have led to the success of the constitutional complaint of those complainants who are resident in Nepal and Bangladesh. This is because, as the court rightly points out, it is beyond the scope of the German state to implement adaptation measures abroad (para. 178). With this reasoning, the BVerfG dismisses the constitutional complaints from faraway foreign countries instead of stating that precisely because there is no possibility of taking responsibility for urban development in
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Kathmandu or dike construction in Bangladesh, the 1.5 °C target must take on all the greater significance. The constitutional complaints were only successful to the extent that the court found that the emission reductions envisaged by the Climate Protection Act up to 2030 would mean that the reduction rate in the subsequent period would have to be close to 100% in order to achieve the self-imposed target of “well below 2 °C”—the court bases this on 1.75 °C. The court also found that the national residual budget for CO2 in 2031 would be less than one gigaton. Based on the scientifically proven assumption that the national CO2 residual budget in 2020 was 6.7 gigatons, a residual of less than one gigaton would remain of this from 2031, which would be “barely sufficient for another year” (paras. 233, 246). Thus, climate neutrality would have to be largely achieved by 2031 (para. 234). Since this is in fact not possible, but according to the legislator’s assessment the period up to 2050 is still needed for this, the consequence would be that people living between 2031 and 2050 would suffer massive losses of freedom, because they would no longer be allowed to emit CO2 and climate-neutral substitute technologies would not yet be available. The burdens associated with the necessary CO2 reductions by 2050 would thus be distributed very unequally among the people living between now and 2050. The generation still living today would hardly have to accept any restrictions on freedom, while later generations would have to completely forego a CO2-based standard of living. The court sees this as a violation of the principle of proportionality and thus a violation of the general freedom of action of this group of persons (Article 2 (1) GG). It is certainly debatable whether this is really a case of application of the principle of proportionality or whether it is not rather a question of the general principle of equality (Article 3 (1) GG). For it is the principle of equality that prohibits the unequal distribution of social burdens. Irrespective of this dogmatic question, however, it can be stated that the constitutional complaints were at least successful insofar as they concerned the distribution of burdens. Benefit claims played no role in this.
303 Reading Recommendations
? Do You Still Remember? 1. Why are “social human rights” not really human rights? 2. There are serious doubts as to whether the guarantee of labor can be considered a required condition of a dignified life. Why? 3. Why do genuine human rights refer only to duties to refrain and not to duties to act? 4. Can social human rights be replaced by liberal human rights?
For the answers, see 7 Chap. 21.
Reading Recommendations Alexander, Larry/Moore, Michael: Deontological Ethics. In Stanford Encyclopedia of Philosophy, 2012 http://plato.stanford.edu/ entries/ethics-deontological/ Frankena, William K.: Ethics. Englewood Cliff 1963, Chapter 2 http:// www.ditext.com/frankena/e2.html Kant, Immanuel: Grundlegung zur Metaphysik der Sitten. Riga 1786 English: Foundations of the Metaphysics of Morals, 1786 (translated by Thomas Kingsmill Abbott) – http://www.gutenberg.org/ dirs/etext04/ikfpm10.txt or: Groundwork for the Metaphysic of Morals (translated by Jonathan Bennett) – http://www. earlymoderntexts.com/assets/pdfs/kant1785.pdf Langford, M. / Russell, A. (Eds.): The Human Right to Water: Theory, Practice and Prospects. Cambridge 2017. doi:10.1017/9780511862601 Schmidt, Manfred G.: Social Policy in the German Democratic Republic. In: Manfred G. Schmidt / Gerhard A. Ritter (eds): The Rise and Fall of the Socialist Welfare State. Berlin-Heidelberg 2012 Weber, Max: The Protestant Ethic and the Spirit of Capitalism. London 2001 http://www.d.umn.edu/cla/faculty/jhamlin/1095/The%20 P ro t e s t a n t % 2 0 E t h i c % 2 0 a n d % 2 0 t h e % 2 0 S p i r i t % 2 0 o f % 2 0 Capitalism.pdf United Nations – General Assembly: Resolution 64/292. The Human Right to Water and Sanitation. A/Res/64/292. 2010. https:// documents-dds-ny.un.org/doc/UNDOC/GEN/N09/479/35/PDF/ N0947935.pdf ?OpenElement
Case Law BVerfG, Urt. v. 24.03.2021-1 BvR 2656/18 u.a. –, BVerfGE 157, 30 (Climate Protection) ECtHR, judg. of 21/01/2011-30696/09 –, “M.S.S. v Belgium and Greece”, HUDOC UN Committee on Economic, Social, and Cultural Rights, Communication No. 001/2013 –, “Rodriguez v Spain”, http://juris. ohchr.org/Search/Details/2095
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he Right to Asylum in T International Law – 308
16.2
I s There a Moral Human Right to Global Free Movement? – 311
16.3
I s There a Moral Human Right to Asylum? – 314
16.4
ight to Asylum for Asylum R Seekers Inside the State Borders – 316
16.5
he Refoulement Ban in Positive T Asylum Law – 318
16.6
ight to Asylum for Asylum R Seekers Outside the State Borders – 320 Reading Recommendations – 321
© Springer Nature Switzerland AG 2023 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-031-32292-1_16
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Right to Asylum in Human Rights Treaties None of the international human rights treaties contain a human right to asylum. Only the UDHR (Article 14) mentions the right “to seek and to enjoy” asylum. This is meant as the right to apply for protection, but not as a right to be protected.
Principle of Territorial Sovereignty The principle of territorial sovereignty says that states are, in principle, entitled to close their borders and to determine whether and under which conditions a person who is not a citizen of the state in question (alien) may enter the country, may reside there, and may chose the place of residence.
Right to Global Free Movement A required condition for a rational discussion about whether there is a moral human right to asylum is the absence of a universal right to global free movement. Until recently, the validity of the principle of territorial sovereignty was not within dispute. In the 1980s, a philosophical debate begun about a right to global free movement (No Border Approach). Defenders of this approach argue by referring to an alleged human right to global free movement, to the theory of the presumption of equality, and to the Common Property Argument.
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Protection Scope of a Possible Human Right to Asylum In contrast to current positive asylum law, the protection scope of a possible moral human right to asylum only refers to the protection of people who are seriously threatened by a severe violation of human rights or by inhuman living conditions in their country of origin. Mere discrimination is not enough. Importantly, the protection scope does not depend on particular grounds of persecution (e.g., racism, religion, sexual orientation, political opinion, etc.) or the fact of a deliberate human activity (persecution).
Refoulement Ban If refugees are already in the state in question, deportation or extradition (refoulement) to a country where they can expect a severe deprivation of humane living conditions is to be considered a violation of human rights perpetrated by the deporting state. For example, if the refugee can expect torture, then the deportation is a violation of the torture ban; if the refugee can expect murder, then the deportation is a violation of the right to life, etc. The refoulement ban is an integral part to all classical human rights. Therefore, there is no place and no need for a special human right to asylum.
The Duty to Rescue If refugees are still outside of the state in question, it is not possible for a state to violate their human rights by doing something (e.g., deportation). The question is only whether the respective state is required to support refugees outside of its borders by rescuing them. Helping others who are in need of support is not a duty but depends on a discretionary decision of the helper. Therefore, there is no right to be rescued.
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16.1
Human Rights Covenants 1966 Banjul Charter
he Right to Asylum in International T Law
When we are dealing with the question whether there is a human right to asylum, it is first useful to recognize that the catalogue of codified human rights does not contain such a right. Neither the two Human Rights Covenants of 1966 nor the later UN human rights treaties nor the European or American Conventions of Human Right contain such a right. The African Human Rights Convention (Banjul Charter of 27 June 1981) rules that the right to asylum stands under the reservation of the national law (see . Fig. 16.1). Considering that the right to asylum is made dependent on the positive laws of the host countries, we cannot identify a human right to asylum in the African Charter either. The formulation of the asylum clause in the Banjul Charter, however, is interesting insofar as it is very similar to the wording of the asylum clause in Article 14 UDHR (see . Fig. 16.2). But there is a crucial difference. While the Banjul Charter refers to a right to seek and to obtain asylum, the UDHR refers only to the right to seek and to enjoy asylum. One could think that this difference in wording does not mean a difference in meaning. This guess seems to be confirmed by the wording of Article 16a (1) GG, according to which refugees enjoy the right to asylum (see . Fig. 16.3). According to German
Article 14 UDHR
Article 16a GG
Every individual has the right, when persecuted,to seek and obtain asylum in other countries in accordance with the laws of those countries and international conventions. . Fig. 16.1 Article 12 (3) Banjul Charter
16 . Fig. 16.2 Article 14 (1) UDHR
309 16.1 · The Right to Asylum in International Law
. Fig. 16.3 Article 16 (1) GG
. Fig. 16.4 Article 13 (1) UDHR
case law and doctrine, there is no doubt that “to enjoy” has the meaning of having a right to asylum. But the meaning of to enjoy in Article 14 UDHR is different. The expression “to enjoy” is the result of very intensive discussions among the drafters of the UDHR. A former draft proposed the wording: “Everyone shall have the right to seek and to be granted asylum from persecution.” In particular, under the influence of the large number of refugees after the Arab-Israeli war in 1948 and with strong support from the Arab states, the British proposal was adopted, replacing “to be granted” with “to enjoy.” The British proposal for the UDHR pursued the aim of avoiding recognizing an obligation of the states to grant asylum to those who are persecuted. The granting of asylum should be considered a matter of discretion of the state. Only if the state has granted asylum can the asylum seeker then enjoy asylum. Here, “to enjoy” means to have opportunity to use a granted status, but not necessarily to have a right to receive that status. In the context of asylum, we must also take notice of Article 13 UDHR, which provides that there is a right to freedom of movement within the borders of each state (see . Fig. 16.4). The wording is obviously vague. What is meant by “within the borders of each state”? It seems that this wording refers to more than just the territory of the state whose nationality someone has or in which someone is living. Thus, everyone regardless of their nationality should have the right to move in and to reside in each state. So, a possible reading of Article 13 (1) UDHR suggests that a right to global free movement is recognized. This understanding of Article 13 (1) UDHR, however, is not in accordance with Article 14 (1) UDHR. If there is a right to global free movement, then a right to asylum and even a right to seek and enjoy asylum is simply superfluous. If
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. Fig. 16.5 Article 12 (1) ICCPR
Article 13 (1) UDHR contains a right to global free movement then Article 14 (1) UDHR loses any meaning. In converting the UDHR into binding law, the UN changed the wording of the right to free movement and deleted the vagueness. According to Article 12 (1) ICCPR, there is no right to global free movement but only a right to movement inside the borders of a state and only for those who are lawfully within the territory of that state (. Fig. 16.5). Within the framework of the negotiations on the ICCPR, the negotiating states had agreed to make the right to asylum a matter of a separate convention. In 1977, a conference was held in Geneva, at which a Convention on the Right to Asylum was to be agreed upon. Nevertheless, the draft did not provide for a substantive right to asylum, but only confirmed the previously recognized rules of international law according to which states are entitled to grant asylum. The attempt by Germany to codify a substantive right to asylum was rejected by the great majority of the states. The conference finally failed because the Eastern Bloc states did not want to take on a state commitment to provide asylum. There is, however, an international law of asylum. But it is established outside of the human rights discourse and outside the framework of human rights conventions. The first Convention on Asylum was agreed to in 1951 in Geneva. This is the Convention relating to the Status of Refugees, shorty named Geneva Refugee Convention (GRC). The Convention defines the notion of a refugee and describes the minimum status that a refugee should enjoy. But the Convention does not contain a substantive right of the refugee to get asylum. Only at the national level are there some state constitutions that contain a substantive right to asylum. The most prominent example is Article 16a GG. The French and Italian constitutions also contain a substantive right to asylum. In contrast to the German case law and doctrine, in France and Italy the substantive right to asylum was
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311 16.2 · Is There a Moral Human Right to Global Free Movement?
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not recognized when their respective constitutions came into force. It was only later “discovered” by case law. So, the question arises, whether the absence of a right to asylum in the framework of human rights should be considered as a deficiency that must be eliminated. This is the case if there is a moral human right to asylum. This is what we must clarify in the following section.
16.2
I s There a Moral Human Right to Global Free Movement?
First, we must answer whether there is a human right to global free movement. If such a right exists, states would not have the right to refuse entry of aliens who want to enter their country and reside there. One could then consider whether refusing entry in particular cases is legitimate, for example only where aliens want to enter with a criminal or hostile intention or if they represent a serious danger to the domestic population. In other words, in the case of a right to global free movement, the alien does not bear the burden of justifying their entry, but the state must bear the burden of justifying the exclusion of the alien. Nevertheless, if we accept the right to rejection in certain particular cases, the right to global free movement cannot be considered as a moral human right because moral human rights do not permit any restriction. They are absolute rights or they are not human rights. But I want to propose setting aside this aspect and focusing instead on whether there could be a human right to global free movement in principle. Previously, the territorial sovereignty of the states has not been seen as a philosophical question. In particular Immanuel Kant, who first reflected the relationship between states and individuals, did not discuss the question of the legitimacy of state borders and territorial sovereignty. He argued only for a right to visit. Foreigners should have the right to stay as guests for a short period of time in a country whose nationality they do not possess. But the idea of a right to permanent residence for foreigners was completely remote to him. Only recently has the legitimacy of territorial sovereignty appeared on the philosophical agenda. So far as I see, the Canadian philosopher Joseph H. Carens (1945) was the first who argued for a universal right to global free
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movement. Meanwhile, there are many philosophers who argue in favor of open borders. They do not only refer to an alleged human right to global free movement, but also to other approaches. There are three different arguments which Open Border theorists rely on: No Border Postulate 55 The right to free global movement as a human right 55 The Egalitarian Approach (theory of the presumption of equality) 55 The Common Property Argument Right to Global Free Movement
Presumption of Equality
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I am neither convinced of the assertion that there is a human right to global free movement, nor am I convinced of the Presumption of Equality Approach or of the Common Property Argument. Global free movement is obviously not a matter of human rights. Here, I can point to what I said in the ninth chapter. It cannot be shown that moving from one place on earth to another place on earth or from one society to another society is a required condition for the d evelopment or maintenance of personhood. Immanuel Kant never left his birthplace of Königsberg in Eastern Prussia. But I think one can hardly assume that Kant lived under inhuman conditions and was not able to develop and maintain personhood. The Presumption of Equality Approach teaches that human beings must always be treated equally as long as there are no reasons to treat them unequally. Considering that there are no rational grounds for arguing that some people may not enter a certain part of the Earth’s surface while others are allowed to do so, every human being must have the equal right to enter onto every part of the globe and every country. This argument can be criticized under two aspects. First, it can be contested that there really is a case of unequal treatment here. That foreign nationals do not have the right to enter the territory of another state without permission is a rule that is applicable for all human beings in the same way. Every human being has only the right to enter the borders of a state of which they are a national. All human beings enjoy the same privileges in their capacity as nationals; and the same restrictions in their capacity as foreigners. The other aspect relates to the basic idea of the presumption of equality. Why should all human beings worldwide be treated equally?—Bernd Ladwig, who tries to
313 16.2 · Is There a Moral Human Right to Global Free Movement?
justify a universal right to global free movement this way, argues that they are to be treated equally because they share the same moral value. From this same moral value of all human beings follows, according to Ladwig, that everyone’s life, well-being and self-determination are morally equally important, so that the unequal distribution of life chances must be justified in relation to each affected person. If such a justification is not possible, then only equal distribution remains. But what justifies the claim that all human beings have the same moral value? Egalitarianism denies that there are absolute rights or absolute values. For egalitarians, all conceivable protected goods of human rights are initially only objects of subjective interests and desires from which no moral problems arise. Only when it turns out that subjective wishes are unequally fulfilled does egalitarianism face a moral problem that must be solved according to the principles of distributive justice. But if there are no absolute rights or values, then respect for the moral value of the person cannot be based on such a right or value. However, it is also not possible to derive the moral value of human beings from the principle of equality because the applicability of that very principle already requires the existence of the moral value of human beings. Egalitarians do not deliver arguments in favor of the assumption that human beings have a moral value at all. The moral value of human beings is expressed in the principle of human dignity and in human rights. If global free movement, as shown above, cannot be considered a matter of human rights, then it cannot be the starting point for a claim to equal treatment. The Common Property Approach argues that the planet Earth is not the property of a particular society, but rather that it is the common property of the entirety of mankind. Therefore, there is no reason to prevent some people from entering a certain area on the surface of Earth. This argument is also not convincing. Nevertheless, explaining as much is not yet possible because we have yet to deal with the right to property, which I plan to do in the 17th chapter. So, my argument in the current context is a provisory one. In the 17th chapter, we will see that property is only the name of a certain bundle of positive rights and duties. It is a legal concept, and its content is always a matter of legislation. Property, therefore, is only possible in the framework of a legal system and not beyond such a system. The legal system of a state refers only to property
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inside that state and tells us nothing about the question of property in the Earth. Property on an international level is a matter of international positive law, but not a matter of a universal moral human rights regime. 16.3
EU Asylum Law
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I s There a Moral Human Right to Asylum?
Only when we agree, or assume for the purposes of philosophical analysis, that there is no right to global free movement and that states are in principle entitled to close their borders and determine whether and under which conditions a foreigner may enter the country, does the question arise whether the territorial sovereignty of the state is limited by a human right on asylum. But another question arises first: when does it get to the point of asylum? It is important to understand that current positive asylum law does not provide a clear answer to this question. As you may know, current asylum law of the European Union provides two different statuses for those who are in need of protection, namely the refugee status according to the Convention relating the Status of Refugees of 1951 and the subsidiary protection status according to the EU Asylum Directive. Refugee Status is the more preferable of the two statuses because subsidiary protection status comparatively embraces less rights. The existence of these two statuses shows that current asylum law does not have a clear moral understanding of the conditions under which aliens should be protected. I want to demonstrate this using the following example. An alien who fled to an EU member state because they were threatened with torture in their country of origin can either receive refugee status or subsidiary protection status. Such depends on whether the alien is to be tortured in their country of origin because the persecutors are motivated by hostility towards certain religions, nationalities, political opinions, etc., or because of other rather nonpolitical reasons. In the former case, the alien is granted refugee status; in the latter case, the alien is only granted subsidiary protection status. The privileged refugee status depends on a specific political situation while the lower subsidiary protection status is granted only in order to protect the person against a violation of human rights. So, the protection of human rights seems to be of a lower importance than resistance against certain political strategies in the country of origin.
315 16.3 · Is There a Moral Human Right to Asylum?
If we deliberate over whether there is a human right to asylum, it seems obvious to me that the entire existing system of current positive asylum law cannot be philosophically grounded. A human right to asylum only comes into consideration if human beings who are not citizens of the state in question seek shelter and protection against serious threats related to severe violations of human rights and if they cannot help themselves. The motivation of the persecutors does not matter. Furthermore, I cannot see that persecution as such, i.e., targeted aggressive behavior of humans against other humans, should be considered relevant. It is only a matter of whether a person is actually threatened with a deprivation of goods that are protected by human rights, and not whether this violation is caused by the targeted and deliberate treatment of the persecutors. Even situations where persons are injured without being a target of deliberative persecution are to be considered relevant. For example, in circumstances where civilians find themselves caught in armed conflict—they are not targets of the fighting parties, but they may nevertheless be the ones who are killed and injured by them. Furthermore, it seems to not be relevant to me whether the deprivation of human living conditions is caused by a violation of human rights at all. Even in cases where the need for protection is caused by a natural disaster or by a lack of appropriate social infrastructure like a health system in the country of origin, the question arises whether there is a serious need for protection. Nevertheless, from the fact that aliens are in a situation where they are in a serious need for protection does not logically follow a duty to render aid and to give any support. The pure fact that people flee from inhuman conditions of life does not establish a duty to render aid. We need additional arguments in order to show whether and when such duties arise. This is the core of the question for a human right to asylum. The answer depends on whether the refugees are already staying in the potential host country or whether they are staying outside the borders of the respective state. So, we have to distinguish between two different situations: 1. The situation of asylum seekers who have already entered the country legally or illegally. 2. The situation of those who are either in the country of origin or outside the home-country but not inside the state in question
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16.4
Correspondence of Duties and Rights
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ight to Asylum for Asylum Seekers R Inside the State Borders
Let us first look at the situation of those asylum seekers that are already within the country of protection or that have reached the border of that country. Is there a human obligation to grant them asylum that corresponds with the asylum seekers’ human right to asylum? In order to find an answer to this question, it is useful to ask what would happen if there were no such duty. In doing so, we assume that the person seeking protection entered the country of protection without permission and that the asylum seeker does not enjoy the right to stay on another legal basis. We also assume that they cannot enjoy protection and security in any other third country. In this case, we would have to conclude that the foreigner is within the host country illegally and is therefore required to leave the country. If they do not voluntarily comply with this obligation, they will be deported to the state of their nationality. This is the state from which they escaped because they were threatened with serious damage to one or more essential goods which are protected by human rights. The moral question here is whether the state is morally obliged to refrain from doing something, namely deporting the individual back to the country of origin. We may recall from the last chapter that omissions can be a matter of strict and absolute duties, which can be related to absolute rights. It follows that a subjective right to asylum is only conceivable if there is a corresponding duty to refrain from doing something, namely, to refrain from deporting the asylum seeker. The question is now the following: What is the moral basis for a duty to refrain from deporting an asylum seeker? Deportation as such consists only in the organizing of travel from country A to country B. In terms of human rights, deportation is therefore morally indifferent. But in the case of an asylum seeker, the question arises whether we must take into account the consequences of the deportation or whether it is sufficient to take only the isolated act of deportation into account. Let us take the case that the alien, when deported to the country of origin, is exposed to maltreatment within the meaning of Article 3 ECHR. According to the ECHR, contracting states are not allowed to maltreat persons. But the deporting state is
317 16.4 · Right to Asylum for Asylum Seekers Inside the State Borders
not the entity which is maltreating the person in question. Its action consists only in the act of deportation, not in the act of maltreating. The expected maltreatment will be done by agents in the country of origin, for whose behavior the deporting state is not responsible because it has no control over them. Nevertheless, it can be shown that the deporting state is morally responsible for maltreatment that occurs in the target state of the deportation. The moral concept of responsibility is reflected in the legal concept of responsibility. Although the legal concept of responsibility is constructed somewhat differently in criminal law than in civil law, both the criminal and civil law construction clearly lead to a legal responsibility and thus also to a moral responsibility. According to the prevailing opinion in German penal law, an agent is responsible for a certain result if the result is caused by the action, i.e., if the action is to be considered the conditio sine qua non of the result and if the agent acted either intentionally or negligently. An agent acts intentionally where the result of their actions is known and desired by the agent. The result is desired not only if it is the specific objective of the action, but also if the agent acts deliberately without any regard for the consequences of their actions. Negligence is a failure to exercise reasonable care when acting, by considering the potential harm that the action might foreseeably cause to other people. Without any doubt, the deportation is the conditio sine qua non of the maltreatment because without the deportation, the maltreatment could not happen. The deporting state can be accused of acting intentionally when it expects that the maltreatment will occur despite not wishing it. Similarly, even if the deporting state does not expect the maltreatment, it is responsible if it acts negligently by ignoring the foreseeability of the maltreatment. So, if there is sufficient knowledge available that the alien will be exposed to maltreatment when deported to their country of origin, the deporting state is responsible for the maltreatment. Therefore, the deporting state commits an act of maltreatment through the deportation. We find the same result if we apply the concept of responsibility as provided in civil law, particularly the law of tort. The difference here is that the concept of causality is understood differently. An action is not to be considered as a cause of a certain result if, according to the experience of life, it is rather unlikely that the result will happen. In
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our case however, the maltreatment is very likely and therefore the responsibility of the deporting state for the maltreatment cannot be denied. Saying that the deporting state is responsible for the maltreatment is saying that the deporting state itself commits the maltreatment. The act of deportation as such is an act of maltreatment. The maltreatment, therefore, is a severe violation of basic human rights (Article 3 ECHR).
16.5
Refugee Convention
he Refoulement Ban in Positive T Asylum Law
The result of our analysis partly confirms the legal provisions as well as the legal doctrine of non-refoulement under which persons who are threatened with a violation of basic human rights in their home-country may not be deported to that country. A closer look to the codifications in question, however, shows that these provisions can be criticized by means of philosophical analysis. The non-refoulement provision of Article 33 (1) GRC contains some reservations of the ban (see . Fig. 16.6). It only applies to those who are threatened by persecution and not to those who are threatened by inhuman living conditions. Furthermore, it applies only to those who are persecuted on account of particular persecution grounds. The restriction of the protection by these persecution grounds cannot be justified as we have seen above. Furthermore, paragraph two shows that the refoulement ban cannot be applied to those who committed a severe
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. Fig. 16.6 Article 33 Geneva Refugee Convention
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. Fig. 16.7 Article 3 (1) CAT
crime despite the fact that even criminals are bearers of human rights and may not have such rights violated. The non-refoulement rule in the Convention against Torture of 1984 (CAT) can also be criticized by means of philosophy. Article 3 contains a clear and unconditioned refoulement ban in the case of threatening torture (cruel treatment for specific purposes), but not in the case of threatening cruel treatment without specific purposes, although such maltreatment, like torture, is a severe violation of basic human rights (see . Fig. 16.7). The philosophical requirements concerning the refoulement ban are best met by the case law of the ECtHR. Beginning with its judgement of 1989 in the case Soering v. UK, the Court decided that the refoulement ban is an inherent element of the human rights of the ECHR. Unfortunately, the Court did not make sufficiently clear that this doctrine is applicable to all human rights of the ECHR. This is why it is a widely held opinion that the refoulement ban is only an integral part of Article 3 ECHR. But this conclusion is not convincing. The case law of the ECtHR is only convincing if it is based on the major premise that the refoulement ban is integral part of all the human rights of the Convention. From this premise follows that it is also part of Article 3. The refoulement ban must be considered an integral part of each human right. Accepting the duties that follow from these rights means accepting the refoulement ban. From the result of our considerations follows an important consequence. Considering that the refoulement ban is an integral part of each human right, there is no need and no space for a specific human right to asylum. The talk about a human right to asylum, when it refers to asylum seekers who are already inside the country of possible protection, is redundant talk. So, the result of our analysis so far is that there is no specific human right to asylum, but that asylum seekers inside the country of possible protection are sufficiently pro
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tected by the framework of all classical human rights. This is the case because the refoulement ban is an integral element of every human right.
16.6
Action and Omission
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ight to Asylum for Asylum Seekers R Outside the State Borders
Now we come to the case of refugees who have not yet reached the territory of the state of possible protection and are still in the country where they are in danger or where they are already outside the country of origin somewhere in the desert or on the high seas. In both cases, we assume that support cannot be delivered by other states because other states are either not able or not willing to render aid at the place where people in need are staying. Now we ask whether the refugees have a human right to asylum that can be exercised toward the state of potential protection. In this case, the question is not whether there is a duty to refrain from doing something. Rather, the appropriate question is whether there is a duty to do something—to rescue the refugees, to take them under protection, and to bring them into a territory where they are safe. Similarly, in the absence of other possibilities, the question is whether they are to be brought to the territory of the state in question. As we saw in 7 Chap. 15, the moral qualification of doing good is different from the moral qualification of refraining from doing evil. Human rights can exist only regarding obligations to omit. Here, however, it is not an omission but a doing that is required. And its extent is always at the discretion of the one who is called upon to act. Therefore, it cannot be said that there is a strict duty to rescue and protect and a corresponding right to be rescued and protected. Thus, there is no moral human right to asylum in such cases. If at all, there can only be a right that refers to the duty to responsible decision making and to a fair process of balancing. A fair balancing process must take into account the severity of the need on the one hand and the state’s resources on the other. As a rule, it may therefore be possible to demand more from rich states than from poorer states. However, concrete people who are in need some
321 Reading Recommendations
where in the world and require assistance have no right to a proper and fair consideration. For that would presuppose that these people have a claim against a concrete state to deal with the issue. However, as long as there are a large number of states that could provide assistance, no individual state has to justify its considerations to specific people in need of protection. A final remark should be made. The moral status of a person seeking protection vis-à-vis a particular state does not depend on whether or not they have already crossed its border. Rather, it depends on whether the refugee is in a situation where the state in question already exercises effective power and control. Therefore, a state violates its duty to refrain from harm if it does not shelter refugees who are on board a ship flying its flag or even let them be taken to a country where they are at risk of human rights violations. ? Do You Still Remember? 1. Is there a codified human right to asylum on the international level? 2. What is meant by “refoulement ban” in the context of a philosophical analysis of human rights? 3. Is there a moral human right to asylum related to refugees inside the potential host state? Justify your opinion. 4. Is there a moral human right to asylum related to refugees outside the borders of the host state? Justify your opinion.
For the answers, see 7 Chap. 21.
Reading Recommendations Carens, Joseph H.: Aliens and Citizens. The Case for Open Borders. In The Review of Politics 49 (1987), 251–273 Carens, Joseph H.: The Ethics of Immigration. Oxford 2013 Kant, Immanuel: Zum Ewigen Frieden. Ein philosophischer Entwurf. Königsberg 1795, 2nd ed. 1796 (English: Perpetual Peace: A Philosophical Sketch) Ladwig, Bernd: Offene Grenzen als Gebot der Gerechtigkeit. In: Andreas Cassee / Anna Goppel (eds.): Migration und Ethik. Münster 2012, pp. 67–88 Lambert, Hélène / Messineo, Francesco / Tiedemann, Paul: Comparative Perspectives of Constitutional Asylum in France, Italy, and Germany. In: Refugee Survey Quarerly (RSQ) 27 (2008) pp. 16
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Rodrigues Simao, Jorge: Article 14 of the Universal Declaration of Human Rights. https://www.linkedin.com/pulse/20141125090354- 241662330-a rticle-1 4-o f-t he-u niversal-d eclaration-o f-h uman- rights Tiedemann, Paul: Are There Moral Duties Toward Refugees? Considerations in Legal Ethics, in: LAWS 2021, 10(1), 4. https://doi. org/10.3390/laws10010004 Tugendhat, Ernst: The Moral Dilemma in the Rescue of Refugees. In: Social Research 62 (1995), 129–142
Case Law ECtHR, judgment of 07/07/1989-14038/88 –, Soering v UK, HUDOC
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The Right to Property – 326
17.1.1 17.1.2
The Concept of Property – 327 Philosophical Conceptions of Property – 329
17.2
Collective Human Rights – 334
17.2.1
ollective Rights in Positive C Law – 335 Critique of the Idea of Collective Rights – 337
17.2.2
Reading Recommendations – 339
© Springer Nature Switzerland AG 2023 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-031-32292-1_17
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The Meaning of Property Property is the collective name for the bundle of rights (and duties) that the owner of the property holds with respect to material things (mobile or immobile) or ideas (intellectual property). In a wider sense, it is possible to hold property also in entitlements. The bundle of rights that constitute property can be defined differently.
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Occupation Theory (Plato): Property is constituted by occupation and the factual respect of that act by fellow humans. This argument suffers from a naturalistic fallacy. Labor Theory (Locke): There is a natural right to property in one’s own body. Thus, a person is also owner of the actions committed by their body. Furthermore, a person is also owner of the objects that are made by their own actions. This argument suffers (1) from a specific pitfall of the English language that uses the same expression (property) for attribute as well as for belonging and tends to confuse the different meanings of these two concepts. It further suffers from a quaternio terminorum because it confuses two different meanings of the pronoun “my.” It is important to distinguish “my” as an identity pronoun from “my” as a possessive pronoun. Positivistic Status Theory (Hume): Property refers to a legal status. A status is a bundle of rights and duties. The bundle is defined by positive law. So, it is up to the legislator to introduce or to abolish property in certain entities and to establish rules concerning the distribution of property. Example for the abolishment of property: The Nuclear Power Exit judgment of the Federal Constitutional Court. Considering that there is no need for property rights in order to protect personhood, property rights cannot be considered human rights. There is a need for a subsistence minimum, but not for property.
325 Fake Human Rights
Collective Human Rights According to Karel Vašák, there are three generations of human rights. The first generation embraces the classical or the so-called liberal human rights. The second generation embraces the social human rights. The third generation embraces the human rights of collectives (tribes, language-minorities, etc.) Collective rights are rights held by a group, but not by the particular members of a group. Collectives as such are not endowed with reason and conscience. They are not persons in a natural sense. Therefore, collective rights cannot be considered human rights. The alleged equal status of human rights and collective rights can lead to conflicts which can only be resolved by a relativization of human rights. This is contrary to the absolute character of human rights. The function of human rights is to protect the individual from its total absorption by collectives.
As I mentioned several times before, the codifications of human rights contain not only rights that can be considered as human rights because they can be derived from the principle of human dignity. The codifications also contain some rights that cannot be considered human rights. Some of them are purely ideologically based. The desire to label them as human rights serves only for the purpose of persuading people to accept them despite the fact that any justification for them is built on sand. In the 15th chapter, I mentioned the so-called human right to labor. Habeas corpus rights (see 7 Chap. 9) are different. Behind them is a genuine requirement of justice. Nevertheless, they are not human rights, because they are only procedural rights. They are intended to protect freedom of action, but not personhood, i.e., freedom of will. In this chapter, I want to deal with two more examples. The first one deserves particular attention because it belongs to the classical stock of almost every human rights codification since the beginning of the history of codification. It also belongs to the stock of those alleged human rights which have been a focus of philosophical deliberation since the beginning of philosophical deliberation about human rights. This is the right to property. The
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other example refers to a relatively new development in the history of human rights. This is the right to what we can call collective identity.
17.1 Property in Codified Human Rights Law
The Right to Property
The right to property is mentioned in the Virginia Bill of Rights of 1776 as well as in the French Declaration of the Right of Man and Citizen of 1789. It is also mentioned in the UDHR of 1948 (see . Fig. 17.1). But Article 17 (2) UDHR offers the idea that a person can be deprived of property under certain circumstances. The clause, however, does not set out the circumstances under which such deprivation can occur. It only indicates that the deprivation may not be arbitrary. So, this clause can be applied on the basis of any reason so long as the method is not arbitrary. This leads to uncertainty as to whether the drafters of the UDHR intended the right to property to be a human right. Still more interesting is the fact that neither the ICCPR nor the ICESCR mention the right to property. The ECHR of 1950 did not mention the right to property either. Nevertheless, it was introduced in the first Additional Protocol of 1952 (see . Fig. 17.2). When the Convention was being drafted, it was generally agreed among the negotiating parties that a right to property should be inserted into the text of the convention.
. Fig. 17.1 Article 17 UDHR
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. Fig. 17.2 Article 1 ECHR first Add. Protocol
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Nevertheless, they failed to reach an agreement on the details of the formulation. Therefore, this right was added afterwards. It is important to note that this right stands under the reservation of public interest. This is obviously the opposite of a human right. A human right under the reservation of public interest is simply a contradiction in itself. So, we must ask whether the codified wording of the right to property fails because it does not take into account the specific character of a human right, or whether the codification is at all appropriate because the right to property is not really a human right. Before we can clarify the specific character of the right to property, regardless of whether we consider it a human right, we must first ask what property actually is. 17.1.1
The Concept of Property
In contrast to notions like life, ideas, bodily or mental integrity, associations, and assemblies, the term property does not refer to something that exists in the real world and that can be made a subject of moral or juridical protection. Property does not refer to an extra-juridical reality, but rather only to the world of law. It is a judicial concept. It denotes a bundle of rights and duties that, for their part, relate primarily to objects of the material world or to ideas (intellectual property). According to a still wider framed concept of property, the bundle of rights and duties cannot only refer to things in the material world, but also to certain legal positions. According to German law, for instance, objects of property include future pension benefit entitlements that employees have earned in return for their services or in return for the regular payment of insurance premiums. Regarding the content of the property rights, we can at least distinguish among the following: 55 the right to exclusive possession, 55 the right to exclusive use, 55 the right to exclusive disposal (about who may use it), 55 the right to exclusive enjoyment of the fruits, 55 the right to consumption and destruction, 55 the right to modification, 55 the right to transfer the property to others, 55 the right to bequeathing property, 55 the right to inherit the property of someone who passed away,
The Meaning of Property
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55 the right to protection against expropriation without compensation, and 55 the right to acquire ownerless goods by taking possession of them. This is only a catalogue of typical property rights. Which of them and to what extent they are really part of the property order of a certain country depends on the respective positive law. Regarding the content of the duties of property, there is a wide range of different rules in the different property orders of different states as well: 55 Sometimes there are no duties connected with property. The owner can do with their items of property whatever they want to. 55 Sometimes there are specific duties for owners of property, e.g., the duty to pay a specific tax as a land owner. 55 In some cases, there are general rules on the obligations of owners, e.g., the prohibition of vacant dwellings (the obligation of owners of dwellings to either use them as dwellings themselves or to rent them to others for residential purposes).
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Regarding the subjects to whom property can be assigned, there is also a wide range of different rules. Sometimes every natural person is entitled to hold property. Sometimes only a certain group of individuals are entitled to hold property (landlords, nobility, only adults, only males). Sometimes associations and organizations can hold property, sometimes not. Sometimes only the state or public authorities are entitled to hold property in certain things (e.g., property in war weapons). The wide range of different property orders might suggest that we are dealing with an item governed solely by positive law. Nevertheless, it could also be the case that there is a hard core of property rights that is anchored in the morality of human rights. In order to find that out, we can ask whether there are profound philosophical argumentations in favor of the idea that property rights are embedded in a conception of human rights.
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17.1.2
Philosophical Conceptions of Property
The most traditional philosophical theory of property is called the occupation theory. It was initially advocated by Plato and remained the sole or at least most prevailing theory until John Locke. According to this theory, property is based on occupation and the power to defend it against those who do not want to accept that. This idea underlies the story of the foundation of Rome by Romulus. He drew a line around a field and declared to his brother Remus that this was the district of the new founded city of Rome and that everybody who crossed the line without permission would be killed. Remus jumped over the line and he was immediately killed by his brother Romulus. The Romans shared the opinion that this story can be considered a sufficient ground for the legitimacy of their property in the city of Rome. Nevertheless, the occupation theory of property suffers from severe logical mistake. It is based on what we call a violation of Hume’s law or a naturalistic fallacy. As you already know, naturalistic fallacy consists of the deriving a norm from a fact or moving from be to ought (see 7 Chap. 2). You may remember that David Hume and Immanuel Kant have shown that such a conclusion is logically invalid. In the case of the occupation theory of property, such a false conclusion takes place. The act of occupation as well as the fact of the power to defend it does not lead to a right that describes why someone is entitled to exclusive use of the items while others are not. The most sophisticated reasoning in favor of the idea that the right to property should be regarded as a human right stems from John Locke. It is called the labor theory of property. In his Second Treatise of Government, he developed the following argumentation. Every human person has an exclusive right to themself. They are therefore the owner of their body as well as of their consciousness or abilities. They are, in particular, the owner of their own free will and therefore the owner of all actions and omissions that are based on their own free will. According to Locke, from this follows that the person is also the “owner of their labor,” because labor is a kind of action that is based on a person’s free will and is therefore to be considered their labor. Considering that they are the owner of their labor, they are also the owner of the
Plato
Lohn Locke
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Two Pitfalls of Language
17 Quaternio Terminorum
results of their labor. I will call these results artifacts. So my body, my actions, and my work result in my artifacts. Whatever a person takes out from nature and mixes up with their work becomes their property. Property is therefore a relationship between the person and the items that they created, including the raw material from which the items are created. Artifacts that they have made or created are part of their person. In other words, property is a relationship between an item and a person. Property makes any item to a contingent attribute of a person. Locke’s theory of property is an excellent example for the fact that our kind of thinking is strongly influenced by our kind of talking. If our language is not appropriate, then there is a huge risk to develop false ideas. This becomes very clear in this case because Locke’s theory is obviously the result of two pitfalls of language. The first pitfall is specific for the English language. I think this is a sufficient explanation for the fact that Locke’s idea is still prominent in the English-speaking world. I think of the double meaning of the English word “property.” Property means “attribute” (German: Eigenschaft) as well as “belonging” (German: Eigentum). This double meaning can easily lead to a confusion of thinking. Nevertheless, this is not the only one pitfall of language that seems to justify Locke’s idea. The other pitfall appears in the double meaning of the pronoun “my.” In the English language as well as many other IndoGermanic languages, this pronoun is either a possessive pronoun that marks something as a belonging of the speaker or a pronoun of identity that characterizes something as consisting of certain elements. To elaborate, there is a categorical difference between “my action” and “my hammer.” My hammer is something that can also be used by others. My action cannot be done by others. Others can perform a similar action but this action is not my action. This shows that the word “my” in my action functions as an identity pronoun while in my hammer it functions as a possessive pronoun. If you confuse both meanings, then you may wrongly come to think that the hammer is part of my identity. Accordingly, it would be true to say, “I am not only a person. I am also a hammer.” Or, “being a hammer is part of my personality.” This is obviously nonsense. In Locke’s argumentation, the word “my” is used in different meanings. His argumentation, therefore, falls
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within the scope of a logical fallacy that is traditionally called quaternio terminorum fallacy (quadrupling of terms). A well-designed logical syllogism makes use of three terms. In the case of a quaternio terminorum, we have a syllogism with four terms. This makes the syllogism a fallacy. The falsity of the conclusion is hidden by the fact that two different concepts are expressed with one and the same word. Locke’s syllogism is the following:
»» Premise 1: action x is my action (my = identity pronoun)
Premise 2: Product y is the result of my action x Conclusion: Product y is my product (my = possessive pronoun)
Here we have not only three but four terms:
»» Term 1 = action x
Term 2 = is mine (identity pronoun) Term 3 = result y Term 4 = is mine (possessive pronoun)
So, we must conclude that Locke’s argumentation in favor of the thesis that there is a human right to property is not convincing. It is based on incorrect thinking. The modern positivistic theory of property goes back to David Hume (1711–1776). He regarded property simply as a matter of legislation. According to him, it is up to positive law to define the scope of objects to which property rights can be assigned. Secondly, it is up to positive law to define the subjects that can own property rights. Thirdly, it is a question of positive law to determine how property rights can be acquired. Fourthly, there is positive legislation concerning the determination of those rights that define the content of the property rights. The term “property” is only a purely legal term. It is only a term that summarizes the bundle of certain single positive rights and provisions. Should we follow Hume? The crucial question that we must ask is the following. Is property a required condition for the development and maintenance of personhood? If we answer this question in the affirmative, then we must consider the right to property a human right. Answering otherwise leads to the opposite conclusion.
David Hume
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It is indeed necessary to have access to the material means of life, and private property can ensure this access. But it is also possible to have access to the means of life without having private or public property. Think of the monks and nuns who life in a monastery or the Sadhus in India. They do not hold private property but their means of life are ensured. Property gives, of course, more power to the owner and enlarges their scope of freedom. But this freedom refers only to the freedom of action and not necessarily to the freedom of will. But only freedom of will is necessary for the development and maintenance of personhood. Nevertheless, it is important to understand that property rights are not to be confused with the subsistence minimum. The latter refers to the conditions of freedom of will and is therefore to be considered a matter of human rights. The former refers only to freedom of action. The concept of property refers not only to the ownership of the means of the subsistence minimum, but also to the fortune of a billionaire. So, we come to the conclusion that the right to property cannot be considered a human right. The fact that this right nevertheless appears in almost every classical human rights codification shows the strong influence of the wealthy part of the national or international society when it comes to the codification of human rights. It also shows how the idea of how human rights can be misused and is misused in order to push forward selective or selfish interests by dressing them in the royal garb of human rights. The pure positive sense of property is clearly expressed in Article 14 (1) GG (see . Fig. 17.3). The content and limits of property are a matter of definition by positive laws. It follows that property can only exist in the frame of a given legal order. There is no natural or human right to property. The legal order decides in which items can be owned, who can acquire property, and the range of rights and duties that are connected with property. Furthermore, it is also possible to change the property order by providing that it is no longer possible to acquire or to hold property of a certain kind. Such a change to the property order occurred in Germany with regard to the property of nuclear power plants. By the 13th Act Concerning the Modification of the Atomic Act of July 31, 2011, it was ruled that the construction of new nuclear power plants is prohibited. The exist
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. Fig. 17.3 Article 14 GG
ing nuclear power plants in Germany were also to be turned off according to a particular time schedule. (The last plant is to be turned off in April 2023). Three companies operating nuclear power plants filed a complaint against this law with the Federal Constitutional Court. They argued that the law constitutes an expropriation without compensation (see Article 14 (3) GG). In its judgment of December 6, 2016, the Court decided that the final exit from nuclear power energy in Germany is not to be considered an expropriation, but only a new definition to the content of property according to Article 14 (1) sentence 2 GG. An expropriation occurs only if the object of property is taken from a specific owner and transferred to a new owner. In this case, the property rights still exist. There is only a change in the ownership. In contrast, the law concerning the legal exit from nuclear power does not regulate the transfer of the ownership in nuclear power plants from one owner to another. It rather modifies the definition of property. It tells us that property in nuclear power plants does not exist anymore. Nobody in the country, including the state, can be an owner of nuclear power plants in future. Property rights in nuclear power plants will not exist just as property rights in the oxygen in the air around us do not exist. Property in nuclear power plants will, so to say, pass away simply by a new legal definition. The Court nevertheless recognized a right of the companies in question to a certain amount of compensation.
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But this compensation is not based on expropriation, but rather only on basis of the disappointment of expectations. In order to understand this, it is necessary to know that in 2001 the German Parliament issued a law according to which the production of a certain amount of nuclear energy had been guaranteed to the companies. After the exhaustion of these amounts, the production of nuclear energy should be ceased. Furthermore, in a law of 2010 the guaranteed amounts were enlarged. With the expectation of being able to enjoy the property of nuclear power plants for a while, the companies made some investments to modernize the plants. The abrupt halt to the production of nuclear power by the law of 2011 led to a disappointment of that expectation and to a devaluation of the investments. Only this devaluation was to be compensated. The legal principle behind this case law is not the principle of property, but only the principle of protection of legitimate expectations.
17.2
17
Collective Human Rights
Now we come to the second important example of fake human rights. It is about the so-called human rights of the third generation. This expression goes back to Karel Vašák. Vašák (1929–2015) was born in the former Czechoslovakia. He was a contributor to the drafting of the Universal Declaration of Human Rights. From 1969 to 1980, he worked for the Council of Europe before becoming the first Secretary General of the International Institute of Human Rights in Strasbourg. He invented the notion of three “generations” of human rights, inspired by the three themes of the French Revolution (liberty, equality, and brotherhood). The first time he used this notion was in an article that appeared in 1977. According to this idea, the history of human rights appears in three steps of enforcement. The first step refers to the liberal human rights. These are those rights with which I have dealt with in the 7 Chaps. 8 through 14 and 16. They are characterized by the fact that they are pure rights of defense and protection against attacks that aim to harm a given state of human living conditions. The second step refers to the so-called social human rights that I have dealt with in 7 Chap. 15. They are characterized by the fact that they confer the right to demand the security of a certain state of humane
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living conditions or at least to demand support for the establishment of this state. According to Vašák, there is now a third generation of human rights that consists in particular of the so-called collective rights. Collective rights are considered rights held by a group as a group rather than by its particular members; in contrast, liberal and social rights are considered individual rights that are held by individual persons. 17.2.1
Collective Rights in Positive Law
It is important to understand that the ban of discrimination based on certain group membership is covered by liberal and social rights. For example, if someone is tortured while in prison because they are a member of a certain tribe whereas other inmates who do not belong to that group are not tortured, then this is simply a matter of the individual right to freedom from torture. It has nothing to do with group-related rights. The group-related rights also do not refer to so-called affirmative actions which aim to delete inequality between members of different groups. An important example is the so-called women’s quota in the law of employment in several states. According to these provisions, in a situation of two equally qualified candidates for a certain job, one male and the other female, the employer must choose the female candidate as long as women in jobs of the same position are underrepresented as compared to men. This is also not a case of group- rights because the right of the women to be favored is an individual right of each individual woman in the position of a job applicant. A group-related right is also not codified in Article 27 ICCPR, which provides that persons who belong to minority groups shall not be denied the right to enjoy their own culture, to profess and practice their own religion, or to use their own language in community with other members of their group (see . Fig. 17.4). It is clear from the wording that this provision relates to individual human rights. The right “in community with others to enjoy their own culture” simply refers to the human right to assembly and the human right to association. The right to profess and practice religion obviously refers to the right to freedom of religion. Only the right to use one’s own language seems to be a right that is not identical to any other human right. Nevertheless, there is a dispute concerning whether
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. Fig. 17.4 Article 27 ICCPR
. Fig. 17.5 Article 1 (1) UN Resolution 47/135
there is a moral human right to one’s own mother tongue. I will not discuss whether the right to free usage of language is to be considered a human right. In our present context, it is enough to show that this right is in any case an individual right of individual persons and not a group- related right. On the level of global international human rights law, we have indeed no codification of collective human rights. Only one document could be understood as an introduction of collective rights. But this is only a document of soft law. It is the Resolution 47/135 of the UN General Assembly of December 18, 1992 on the rights of persons belonging to national or ethnic, religious, and linguistic minorities (see . Fig. 17.5). Most articles of this declaration relate either to individual rights of group members or to general duties of the states. Only Article 1 could be read as establishing an original group right. According to this Article, states are obligated to protect not only particular members of a group, but also the existence and national or ethnic, cultural, religious, and linguistic identity of minorities as such. This could be understood as a group-related right to collective identity. On the level of regional human rights law, we have two conventions in Europe that refer to the rights of minorities. These are the European Charter for Regional or Minority Languages of November 5, 1992 and the
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. Fig. 17.6 Article 22 (1) Banjul Charter
Framework Convention for the Protection of National Minorities of February 1, 1995. Both of them do not contain group rights. They protect only the rights of “persons belonging to minorities” or enact duties of the contracting states—for example, the duty of administrative authorities to use the regional or minority languages. Nevertheless, there is an example for the codification of group-rights in the African parallel to the ECHR, the Banjul Charter of Human and Peoples’ Rights. This Charter already shows in its official name that collective rights (rights of peoples) and human rights (rights of human individuals) are considered as being on the same level. This is confirmed in Article 22 (1) of the Charter according to which peoples as such—as opposed to individuals—have the right to their economic, social, and cultural development (see . Fig. 17.6). The Banjul Charter regards individual human rights as well as collective rights of the peoples as rights of the same sort. It therefore allows for the possibility of conflicts between individual and collective rights, which cannot be resolved by reference to some ranking of the two or a general preference for individual human rights. On the other hand, the Charter leaves open which rights are to be favored in such a conflict.
17.2.2
ritique of the Idea of Collective C Rights
I want to demonstrate this problem using an example from Canada that I have found in the work of Rhoda E. Howard. According to Canadian law, everybody enjoys the liberal human rights. Nevertheless, according to the Canadian law, the collective identity of the Indigenous tribes is also protected. Howard explains the following case.
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According to the Indigenous culture and worldview, which is constituent for their collective identity, there is a sacramental connection between the human body and the natural order. The natural order is considered not only as a matter of facts, but also as being part of a normative order. (We called this kind of thinking the Aristotelian approach, see 7 Chap. 2). Certain human behavior can disturb the natural order. It is possible, however, to recover the natural order by injuring the body of a human being. So, what we would consider torture is, in the worldview of the Indigenous tribes, considered a valuable sacrifice for the benefit of the entire tribe. Now the question is: should the state tolerate torture if it is committed in the frame of such a collective identity? Should the state intervene where an Indigenous individual that is to be tortured on such grounds has escaped from the tribe to apply for protection? Or is it necessary to extradite that person to the authorities of the tribe in order to respect the collective identity of the tribe? It is obvious that not every aspect of a conceivable collective identity is in a conflict with human rights. But the example nevertheless shows that collective rights cannot be categorically considered as human rights. The idea of collective human rights is seen by many of its proponents as a counter-concept to individual human rights. Its purpose is not necessarily to supplant individual human rights altogether, but to relativize them and weaken their authority. Behind this is the view that the individualistic approach inherent in human rights promotes egoism and weakens social cohesion. This becomes clear in the following quotation from Claude Ake: “The idea of human rights, or legal rights in general, presupposes a society which is atomized and individualistic … The values implicit in all this are clearly alien to those of our traditional societies. We put less emphasis on the individual and more on the collectivity, we do not allow that the individual has any claims which may override that of the society.” As has been shown in 7 Chaps. 5, 6 and 7, human rights and the principle of human dignity on which they are based are about the protection of personhood. Personhood, however, emerges from a process of equiprimordial recognition. Individual and society constitute each other. The idea that one can think of personhood in an “atomistic” and egoistic way thus completely misses the conditions for the emergence and maintenance of personhood. Everyone owes themself to everyone else. But this does not mean that the individual is absorbed in the collective. For the collective
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consists of nothing but individual persons. It is the individual persons who produce the collective identity. Language and culture as features of collective identity emerge from the actively shaped life practice of the individuals, which at the same time form the cultural framework into which the individuals are born and by which they are shaped. The individual is at the same time a product of culture and they reproduce it through their own actions and life practice. This interdependence, however, does not allow the collective identity of the individual to be played off against their personal identity. The idea of human rights is to protect the individual against their total absorption by the collective. Individual human rights defend individual positions against the expectations and claims of the collective. There is therefore a fundamental and principal contradiction between human rights and collective rights. Furthermore, human rights are derived from human dignity and human dignity refers to the absolute value of personhood. The collective is not endowed with reason and conscience. Therefore, it is not endowed with personhood. Instead, collectives are pure ideas in our brains, intellectual or emotional constructions. They can never replace the position of individual persons that is based on human dignity. This shows that collective human rights do not exist. There is no third generation of human rights. ? Do You Still Remember? 1. What is property? 2. Is the right to property a human right? 3. The argumentation of John Locke in favor of a right to property as a human right suffers from a logical fallacy. What do you know about this fallacy? 4. What is the idea behind Karel Vašáks conception of three generations of human rights?
For the answers, see 7 Chap. 21.
Reading Recommendations Ake, Claude: The African Context of Human Rights. Africa Today 34 No. 1/2 (1987), pp. 5–12 Bisaz, Corsin: The Concept of Group Rights in International Law. Groups as Contested Right-Holders, Subjects and Legal Persons. Leiden/Boston 2012
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Howard, Rhoda E.: Dignity, Community, and Human Rights. In Abdullahi Ahmed An-Na′im (ed.): Human Rights in CrossCultural Perspectives. A Quest of Consensus. Philadelphia (PA) 1991 Jovanović, Miodrag A.: Collective Rights. A Legal Theory. Cambridge (UK) 2012 Locke, John: Second Treatise of Government. 1690, V, 27 Mchangama, Jacob: The Right to Property in Human Rights Law. 2011 https://www.libertarianism.org/publications/essays/right-property- global-human-rights-law Mende, Janne: Collective Identity. In Paul Tiedemann (ed.): Right to Identity. ARSP Beiheft 147. Stuttgart 2016 Vašák, Karel: Human Rights: A Thirty-Year Struggle: the Sustained Efforts to give Force of law to the Universal Declaration of Human Rights. In: UNESCO Courier 30:11, Paris 1977 Waldron, Jeremy: Property and Ownership. In Stanford Encyclopedia of Philosophy 2004. http://plato.stanford.edu/entries/property/ Wininger, Bénédict/Matthias Mahlmann/Sophie Clément/Anne Kühler (eds.), La proprieté et ses limites/Das Eigentum und seine Grenzen. ARSP Beiheft 154, Stuttgart: Franz Steiner 2017
Case Law BVerfG, jud. of 06/12/2016–1 BvR 2821/11 et al. –, (“Nuclear-Power- Plant-Exit”). English: 2016 http://www.bverfg.de/e/ rs20161206_1bvr282111en.html
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The Principle of Liberty Contents 18.1
Liberty in Positive Law – 343
18.2
he Content of the Principle of T Liberty – 349
18.3
Rules and Principles – 350
18.4
he Philosophical Foundation T of the Principle of Liberty – 354
18.5
he Legal Instruments for T Taking Care of Liberty – 355 Reading Recommendations – 359
© Springer Nature Switzerland AG 2023 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-031-32292-1_18
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Rights, Rules, and Principles According to Ronald Dworkin, there is a difference between (moral/legal) rules and (moral/legal) principles. Rules describe a certain situation (legal facts) and provide that in a case where this situation occurs, a certain legal consequence should follow. In contrast, principles do not determine the outcome of the case. They only provide arguments to balance against the arguments in favor of conflicting principles. According to Robert Alexy, human rights are to be considered principles and not rules. So, Dworkin as well as Alexy do not take the notion “right” in “human rights” seriously.
Human Rights as Genuine Rights Contrary to Dworkin and Alexy, it can be shown (see 7 Chaps. 5 through 7) that one can derive genuine rights from the principle of human dignity and not just principles. Therefore, human rights are to be consider rules and not just principles. They protect the conditions of the possibility to create one’s own free will.
Liberty
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The term liberty should be used when it is about the freedom of action and not about freedom of will. Freedom of action refers to the freedom to do and to refrain from doing whatever someone wants to do or not do. Nevertheless, in order to ensure freedom of action for everybody, it is necessary to unite “the choice of one with the choice of another” (Kant). In other words, the limits of freedom of action of one are located where the freedom of action of the other begins. These limits have to be determined by a rule of a legal authority. From this follows that freedom of action can be guaranteed only under statutory reservations. Philosophically, this is not seen as problematic. For restrictions on the freedom of action do not usually threaten the personhood (except in the extreme cases of total institutions). This is why liberty is not a matter of rights but a moral or legal principle of its own that should be strictly distinguished from human rights.
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Liberty as Based on Human Dignity Although freedom of action is not the object of absolute rights, there is a connection between freedom of action and human dignity. For respect toward freedom of will also entails, to some extent, respect toward freedom of action because the will refers to actions. But this relationship is much looser than is the case with human rights.
Principle of Proportionality In order to make sure that the process of balancing between freedom of action of a particular person and conflicting interests and values of other persons is comprehensible and rational, it is necessary to carry out this process in accordance with the principle of proportionality. According to this principle, restrictions on freedom of action are only justified if there is: 1. a legitimate end of the restriction; legitimate ends are the protection of the equal freedom of others and the democratically chosen aims of common cooperation. Morality as such is not to be considered a legitimate end as long as the behavior in question does not infringe the rights and liberty of others. According to the rule of law, restrictions of the freedom of action are only admissible on the basis of generalized and abstract legal statutes; 2. suitability of the means in question; 3. necessity of the means in question; and 4. adequateness of means and ends (not using a sledgehammer to crack a nut).
18.1
Liberty in Positive Law
In order to understand the special character of human rights and to apply human rights in the right manner, it is useful to compare these rights with other principles of a legal order and to distinguish them in a proper way. The human rights discourse very often suffers from an insufficient understanding of the difference between human rights and these other fundamental columns of a free order of society. This is the reason why in this chapter we
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Liberty in International Human Rights Law
Liberty in National Constitutions
want to talk about the principle of liberty. In the next chapter, we will deal with another important element of a free and fair social order, namely the principle of equality. So, let us turn our attention to the principle of liberty. It is interesting to realize that it is not mentioned in the international human rights codifications. Yes, these codifications mention “liberty” or the “liberty of the person” or even a “right to liberty” (Article 10 ICCPR). But these concepts refer only to the freedom from any kind of imprisonment or custody or to humane living conditions under detention. We talked about this issue in the ninth chapter. The principle of liberty should, however, be strictly distinguished from the habeas corpus rights. Some constitutions indeed mention the concept of “liberty” without a close connection to the provisions concerning the habeas corpus rights. An example of such a constitution is the one of Bosnia and Herzegovina, which begins its preamble with a reference to human dignity, liberty, and equality (see . Fig. 18.1). This clause obviously refers to a distinction between the scope of human dignity, which includes the bundle of human rights, and the principles of liberty and equality. Unfortunately, it is not clear what should be understood of liberty and according to which criteria it is to be distinguished from human dignity and human rights, on the one hand, and equality, on the other hand. Nevertheless, there is a classical definition of what is meant by liberty in Article 4 of the French Declaration of the Rights of Man and Citizen of 1789 (see . Fig. 18.2). Here, we read that liberty consists of the freedom to do
. Fig. 18.1 Constitution Bosnia and Herzegovina
18 . Fig. 18.2 Article 4 Declaration of the Rights of Man and Citizen 1789
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everything which does not injure somebody else. The freedom to do everything can be called freedom of action. Freedom of action should have no limits except those which assure the other members of society the enjoyment of the same freedom. These limits of the freedom of action can only be determined by law. French Declaration of the Rights of Man and Citizen Here, liberty is called a natural right. This could be understood in the meaning according to which liberty is identified with human rights because human rights are often characterized as natural rights. Nevertheless, when keeping in mind that human rights are absolute rights which do not depend on the rights of others, then it becomes clear that the natural right of liberty refers to something different from human rights. We find an improved version of the French definition in Article 24 of the Constitution of Afghanistan of 2004 (see . Fig. 18.3). While the French clause refers only to the natural rights and seems to mix human rights and the principle of liberty, the Afghan clause distinguishes clearly between each of them. Liberty is indeed defined as a natural right, but it is separate from human dignity. Human rights fall in the scope of human dignity, and liberty is a right which is also considered “natural,” but clearly distinguished from the scope of human rights. Another interesting point in the Afghan clause refers to the limits of the freedom of action. It cannot only be limited in the interest of the freedom of action of others but also in the public interest. This clause considers that freedom of action must also be restricted in order to raise taxes or to oblige citizens to clean the public walkways in front of their homes, etc. The liberty principle in US constitutional law is very remarkable. It is developed by the case law of the US Supreme Court and is called “substantive due process.”
Freedom of Action
. Fig. 18.3 Article 24 Constitution of Afghanistan 2004
Substantive Due Process
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. Fig. 18.4 US Constitution
The codified basis of the substantive due process doctrine is the Fifth and Fourteenth amendments of the US constitution, according to which no person should be deprived of liberty “without due process of law” (see . Fig. 18.4). The Fifth Amendment relates to the Union while the Fourteenth Amendment relates to the States. The context shows that “liberty” refers to the personal liberty in the meaning of freedom from detention and custody. Both clauses provide that the deprivation of that freedom may only take place on the basis of a fair process. What is meant by fair or due process was clear for the drafters of the amendment because the expression “due process” was a well-established concept that referred to the habeas corpus provisions of the Magna Charta Libertatum of 1215. Beginning with the case Lochner v. New York of 1905, the US Supreme Court modified the meaning of “liberty” and “due process.” The concept of “liberty” was freed from the connection to detention and penal law. It was understood in a much wider and more generalized sense, namely exactly in the meaning of the definition of liberty according to the French Declaration of 1789. The concept of “due process” was freed from its reference to the procedures of a trial and now was a material restriction of the discretionary scope of the legislator. Substantive due process in this new meaning provides that any restriction of the freedom to do or to refrain from doing whatever someone wants to do or not do can only be restricted by a parliamentarian statute. This was what we call statutory reservation. Furthermore, the substantive due process doctrine requires that the statutory regulation be free from arbitrariness. What freedom from arbitrariness means in the concrete case is a matter of case law and falls to the responsibility of judges.
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. Fig. 18.5 Article 2 (1) GG
A quite similar development happened in Germany. However, here the starting point was not the habeas corpus provisions of the Basic Law, but Article 2 (1) GG, according to which everyone has the right to free development of their personality (see . Fig. 18.5). In order to understand the meaning of this clause, it is useful to consider the drafting history. One of the early drafts of this article did not refer to the “free development of the personality”, but to the freedom “to do everything [that] does not harm others.” 1 According to a later draft everybody should be entitled to “freely do or omit what does not injure the rights of others and is not against the constitutional order and morality.” 2 The final formulation should not change anything in the meaning of the article. The expression “free development of the personality” appeared to the drafters only as more sophisticated and better suited for displaying the great weight of the provision. In particular, the draft of the UDHR had a certain influence insofar as Article 22
1
2
Bericht über den Verfassungskonvent auf Herrenchiemsee, in: Der Parlamentarische Rat. Akten und Protokolle, Boppard: Boldt 1948 Bd. 2, S. 580). Der Parlamentarische Rat. Akten und Protokolle. Boppard: Boldt 1993 Bd. 5/II, S. 578).
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declares that economic, social, and cultural rights are “indispensable for his dignity and the free development of his personality.” The expression “free development of the personality” was nevertheless very ambiguous. On the one hand, it was an expression from traditional philosophical language. A similar expression (“development of human powers”) can already be found, for example, in Wilhelm von Humboldt’s On the Limits of State Action of 1792 (first printed in 1851—7 Chap. 2). John Stuart Mill quoted Humboldt in his book On Liberty (1859, 7 Chap. 3), using the expression “free development of personality.” On the other hand, the expression was very often confused with the concept of human dignity, and the difference was never really clear. In 1947, the German legal philosopher and professor of constitutional law Helmut Coing held the opinion that “free development of personality” and “human dignity” are only two different expressions of the same idea. 3 It is necessary to know this history in order to understand what happened in the year 1957 when the BVerfG issued its “Elfes” Judgment. In this decision, the Court laid down the general principles of the distinction between human dignity and “the right to free development of the personality.” Nevertheless, it considered the understanding of Humboldt as well as the contrary understanding of Coing and stated that the “right to free development of the personality” has a double meaning. The Court, therefore, declared that Article 2 (1) GG refers to human dignity as well as to the principle of liberty. Concerning the latter, the provision referred to the protection of freedom of action. Regarding the former, the provision referred to the protection of freedom of will. Unfortunately, the Court did not clarify the function of the clauses about the reservations concerning the rights of others, the constitutional order, and morality. From a philosophically clarified position of the meaning of human dignity, it is obvious that these reservations can only be related to freedom of action and not to the free development of personality in the meaning of human dignity (freedom of will). Regarding human dignity, the scope of personal self- determination should be considered as untouchable and not restrictable as it is declared in Article 1 GG, according
“Elfes” Judgment
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3
Coing SJZ 1947, 641.
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to which the dignity of man is untouchable. In the case law that has continued to modern day, it has become common practice to quote “Article 2 (1) i.c.w. Art. 1 (1) GG” (i.c.w. = in combination with) when it is considered as referring to human dignity—i.e., to freedom of will. Comparatively, the isolated quotation of Article 2 (1) GG only refers to freedom of action.
18.2
The Content of the Principle of Liberty
So, it becomes clear what the principle of liberty means and what the difference between this principle and human rights is. Human rights are always related to the protection of freedom of will because freedom of will is the constitutional element or characteristic of personhood and personhood is the object of an absolute value (dignity). Comparatively, the principle of liberty only refers to freedom of action. Freedom of action is not absolutely protected. It does not guarantee an absolute position, which under all circumstances is protected against any diminution. It is the function of positive law to define the limits of everyone’s freedom of action. Nevertheless, if freedom of action can be restricted by positive law (sometimes to a minimum) and if it does not protect any absolute position, then what is its function? Its function is the implementation of a special rule of distributing the burden of argumentation and justification. Under the principle of liberty, it is not the burden of the individual to present arguments and justifications in order to convince public authorities that they should not restrict the freedom of action. Rather, it is up to the public authorities to present arguments and justifications for why the restriction of the freedom of action is necessary. Furthermore, it is not enough to have good arguments in favor of the restriction of liberty. These arguments must be adopted by parliament and made into a statute. For only on the basis of a statute that authorizes interventions may restrictions of liberty take place. So, the intervention into liberty is under democratic control. This is why we can call states under the principle of liberty liberal states. The principle of liberty is the exact opposite of what applies in illiberal states. Here the rule is: the government must not justify interventions in the scope of individual freedom. It is rather the individual that takes the burden
Liberty Refers to the Freedom of Action
Liberty Refers to the Burden of Argumentation
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of convincing the government of the freedoms they want to enjoy. Respect or disrespect toward the principle of liberty makes the difference between a liberal and an illiberal state. Here, I want to point to a current development inside the European Union that can only be considered a catastrophe and a serious danger not only for the flourishing, but also for the survival of the unique EU project. There are several EU member states that are governed by politicians who defend the idea of an illiberal state. And they do it very openly. For instance, the Prime minister of Hungary Viktor Orbán wants to transfer Hungary from a liberal democracy to an illiberal state. He speaks expressively of an illiberal or non-liberal state. However, he is not alone. We can observe a current worldwide tendency to vote for populistic politicians who frankly demand the abolition of the principle of liberty. The attraction of such political ideas seems to be based on many people’s desire to be guided and fostered by big, powerful men. This relieves them of the burden of freedom, which is always associated with responsibility and the risk of failure. But let us return to our topic.
18.3
Rules
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Rules and Principles
Article 2 (1) GG as well as the French Declaration of 1789 and almost all the other legal documents that are related to liberty do not use the term “principle” but the term “right.” All of them are talking of a right to liberty or of a right to the free development of personality. Nevertheless, it is hardly possible to take the term “right” seriously when we consider that this so-called right to liberty stands under multiple reservations—the reservation of the rights of others, the reservation of morality, the reservation of the constitutional order or of the public interest. This confusing use of the expression “right” is the result of a quite poor language. Confusions of language are mostly based in a confusion of thoughts. So, we can say that the use of only one and the same expression for obviously different concepts stems from a lack of consciousness about the difference between these concepts. Nevertheless, in the meanwhile this confusion of thought and language has been overcome. It was particularly the American legal philosopher Ronald Dworkin (*1931) who discovered and explained the difference between rules and
351 18.3 · Rules and Principles
principles. He saw that judicial decisions are not only based on rules, but also on principles. Rules describe a certain situation (legal facts) and determine that in a case where this situation occurs, a certain legal consequence should follow. For example, if the rule provides that a testamentary document is invalid if it is not signed in the presence of two witnesses, then you cannot inherit on the basis of a testamentary document that has not been signed in the presence of two witnesses. Rules always apply in an all-or-nothing way. Either you can inherit or you cannot. According to the rule, there is no other way. An important characteristic of legal rules is that they can stand in conflict to each other. In such a situation, the question of what should be done cannot be answered. In order to avoid such dilemmas, it is a very important element of a legal order to provide for rules that determine which one of the conflicting rules should be favored. In the event that there is no such rule that solves the conflict, both rules are considered invalid. I am going to come back to this issue in the last chapter. Principles are different. They do not determine the outcome of a case. They deliver certain topics that are to be balanced against the topics of conflicting principles. The process of balancing takes place within the scope of judicial discretion. This scope is only restricted by the number of principles that a judge has to take into account. But the result of the process is not determined by law. Unsolvable conflicts between competing principles are not possible because it is always possible to find a compromise. This distinction between rules and principles was taken over by the German legal philosopher Robert Alexy (∗1945). In addition to Dworkin, Alexy defines legal principles as commandments of optimization. Legal principles command the realization of the idea of the principle concerned to the greatest possible extent. If there is a conflict between two different legal principles, like with Dworkin, it is a matter of balancing and finding a compromise to what extent the two competing ideas can be realized. This process of balancing stands within the scope of discretion of the deciding judge. Alexy applies this doctrine not only to the “right” to liberty, but also to human rights. He holds the opinion that both of them are to be considered legal principles. So, he comes to the conclusion that in a conflict between human rights as well as in a conflict between liberty and
Principles
Commandments of Optimization
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Difference Between Freedom of Will and Freedom of Action
other legal principles, there must always be exercised a process of balancing. According to the doctrine I defended in this lecture, the understanding of human rights as mere legal principles in the meaning of Dworkin and Alexy is not adequate. Considering that the protection scope of human rights is derived from human dignity—i.e., from the absolute value of personhood—it is not possible to balance between conflicting human rights or where there are conflicts between human rights and other principles. Dworkin and Alexy argue that conflicts between human rights were not avoidable and that the legal order by definition, and regardless of the particular circumstances, must always keep solutions for norm conflicts in stock. This, however, is not a sufficient argument in favor of the application of the principle-doctrine to human rights. How we can deal with conflicts in the field of human rights is the issue of the last chapter. Here, I want to only say that from the alleged fact that a conflict between human rights is not solvable when we understand human rights as absolute rights does not necessarily follow that this doctrine must be false. It is also possible that the doctrine of the completeness of the legal system can be false and that it is not true that legal systems always keep in stock solutions for every norm conflict. Now I come back to the so-called right to liberty. As we have seen before, liberty refers to freedom of action. Restrictions of that freedom normally do not lead to the weakening or even to the destruction of personhood. If we are restricted in what we want to do, we are normally free to oppose the restriction. We can be outraged and we can protest it. In other words, we can take action against the restriction according to our own free will. This shows that normally restrictions to freedom of action do not lead to a restriction of freedom of will. I want to demonstrate that with the following graphics. Consider someone who is sitting in a room while the door is closed. They could leave the room because the door is closed, but not locked (see . Fig. 18.6). Still, they believe that it is not possible to leave the room because they think it is locked. Therefore, they will not create the will to leave the room. Someone is sitting in a room. They decide to leave the room, stand up, go to the door and shake the door handle. But they cannot open the door because it is locked (see . Fig. 18.7).
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353 18.3 · Rules and Principles
. Fig. 18.6 Freedom (© Paul Tiedemann)
of
action
. Fig. 18.7 Freedom (© Paul Tiedemann)
of
will
but
but
not
not
freedom
freedom
of
of
will.
action.
Which of these two cases tells us a story about a restriction to the freedom of will and which one tells a story about freedom of action? It is obvious that in the second case the person has a free will although they cannot transform it into a successful action. In the first case, there is no restriction of freedom of action, but there is a restriction of freedom of will because the person is not able to produce the will to leave the room. This inability is based on wrong information about the true situation. If the inability is caused by a simple error, we can talk about the realization of the ordinary risks of life. If the inability is based on wrong information given by a warden in order to prevent the person from leaving the room—let’s tell them that the lock is out of order—then we have to talk about a violation of human rights.
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Total Institutions
There is, however, a degree of reduction of freedom of action that sooner or later leads to a deprivation of free will. This is particularly the case in so-called total institutions (see 7 Chap. 9). But besides this extreme situation, the reduction of the free scope of action does not lead to an infringement of will and of personhood. This is why the right to liberty is not to be considered a human right. It is rather a legal principle in the meaning of Dworkin and Alexy. This principle demands an optimization of freedom of action, but it allows to take conflicting principles and aims into consideration. This is why the reservation clauses concerning the rights of others, the public interest, and morality can be easily understood as references to conflicting principles that makes it possible to balance between maximizing individual interest to its greatest freedom and the interest of others, of the public, etc.
18.4
Liberty as Relative Value
18
he Philosophical Foundation T of the Principle of Liberty
Before we take a detailed look at the process of balancing, I will focus on whether there is a philosophical foundation for the principle of liberty. I think the principle of liberty is also connected with the principle of human dignity. But the connection is not so close like it is in the case of human rights. It is much looser. Human dignity primarily refers to freedom of will and not to freedom of action. Nevertheless, absolute respect toward freedom of will also demands or includes a relative respect toward freedom of action. To develop a free will only makes sense in regard of the transformation of will into action. Restrictions on the freedom of action do not violate freedom of will, but respect toward the will includes a certain respect toward the action that is based on that will. This respect is not absolute but only relative. But it is nevertheless a kind of respect. That relative respect is shown by the attempt to optimize the scope of the freedom of action and by the duty to justify any restriction of the freedom of action toward the person concerned. I would, however, defend the thesis that the connection between human dignity and the principle of liberty is so loose that it is hardly possible to derive certain standards of respect toward liberty that must be recognized by
355 18.5 · The Legal Instruments for Taking Care of Liberty
human persons independent of the legal ties between them. I do not believe that we can define sufficiently clear moral rules of conduct that would allow one to respect the principle of liberty even in the state of nature. Perhaps we can say that total ignorance and indifference to the wishes of others, even in the state of nature, must be considered immoral. But what degree of taking care of the wishes of others should be considered as relevant and how exactly this has to happen seems to be unanswerable to me for the state of nature. The reason is that in the state of nature there is no neutral instance that can define the limits of the freedom of everybody by considering the interests of everybody in a sufficient and impartial way. In other words, the principle of liberty does not take a relevant role in the state of nature because of a lack of a public institution that provides for the scope of individual freedom and its limits. In order to ensure an optimization of an individual scope of freedom of action, it is therefore a good idea for individuals to integrate themselves into the system of a state and a legal order that provides sufficient care for the principle of liberty. Only in the frame of a legal order is it possible to take all or at least the most competing interests into account in order to define the limits of the individual freedom and to optimize the scope of the individual freedom of everyone. This is why we must conclude that the principle of liberty cannot be considered a supra-positive moral standard. It is rather an element of the rule of law and as such an element of a decent legal order. It is applicable and valid only in the frame of the legal order and therefore a pure legal concept insofar as there is a crucial difference between the principle of liberty and human rights. The latter are legal rights that are based on moral rights. As moral rights, they are valid and applicable also in the state of nature.
18.5
he Legal Instruments for Taking Care T of Liberty
The determination of the scope of freedom of action in a particular case demands a process of balancing competing interests in a sufficiently large scope of freedom. According to American case law, this process of balancing is not clearly structured so that very often it is very difficult or
Liberty in the Legal Order
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. Fig. 18.8 Process of Balancing
even not possible to subject this process to rational control from outside. The process of balancing takes place in a black box (see . Fig. 18.8). Conflicting interests or values are put in the box, and in the end the decision is taken out of the box. But what happens inside the box during the process of balancing is mostly hidden. The disadvantages of this approach are, however, compensated by a strict binding to precedents. In present day Europe there is another dominating approach, namely the so-called principle of proportionality (see . Fig. 18.8). So far as I can see this principle was not on the judicial agenda before the second half of the nineteenth century. The term proportionality appeared in a textbook of administrative law by Otto Mayer that was published in 1885 for the first time. In 1955 a doctoral thesis appeared that developed the principle of proportionality more or less in the meaning as it is understood in our days. The German case law took over this new doctrine in a decision of the Federal Constitutional Court of 1971. As early as 1970, the Court of Justice of the European Community had already mentioned this doctrine in the framework of European law. From there, it influenced the national case law of almost all EU member states. The principle of proportionality tries to make what happens inside the black box transparent. It is supposed to rationally structure the process of balancing and make it comprehensible. The principle of proportionality demands a process of balancing that is organized according to four steps. Only if these four steps are taken can the process be considered rational and comprehensible. The first step requires a legitimate purpose for the restriction of the freedom of action. The requirement of a legitimate purpose already appeared in the philosophical
Principle of Proportionality
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thinking of the eighteenth century about the freedom of action. The philosophical considerations are reflected in the restriction grounds that are mentioned in the codifications of the principle of liberty. The law defines three or four restriction grounds. I think the ground for restriction of the same liberty of others is easy to justify. The principle of liberty is based on mutual respect and not only on an egoistic interest in one’s own freedom of action. The restriction ground of conformity with the constitutional order refers to the fact that the state, within the framework of the constitution, defines common goals of society and organizes their realization. The pursuit of such collective goals requires, among other things, the restriction of freedom of action, because the choice of a common goal and the organization of cooperation implies that the individual must renounce conflicting private goals and contradictory actions. The ground for restriction of public interest has no divergent meaning than the ground of accordance with the constitutional order. Public interests always refer to common goals, which are goals of the constitution itself or goals that are chosen by parliament within the frame of the democratic process. The reason for restriction of morality seems me, however, illegitimate. Moral convictions are always a private matter because only natural individuals are endowed with conscience and are therefore responsible for a life in accordance with their own convictions about good and evil. Of course, people must not forget their moral convictions when they are acting as citizens. They can, for example, vote for politicians who want to establish moral aims as legal aims through legislation. But the only way to integrate moral aims in the law is the way of the constitutional democratic process. If a majority of voters share the opinion that it is immoral to be naked on the streets, they can vote for politicians who make a law which prohibits being naked on the streets. But if such a law does not exist, it is not legitimate to reduce the freedom of action by a police order simply on grounds of “morality.” The second step of the principle of proportionality refers to the suitability of the intervention. The intervention in the scope of the freedom of action must be suitable in order to achieve the purpose. I shall give a (negative) example: Let us assume that the aim of the restriction of liberty is to prevent infection with viruses in order to contain a pandemic. For this purpose, the state prescribes that
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Adequateness
everyone must drink two liters of lukewarm water every day. This measure would not be an appropriate means to achieve the goal. It would therefore be incompatible with the principle of liberty. The third step of the principle of proportionality refers to the necessity of the means to achieve the purpose. Necessary are only those means which least intervene in freedom but which are still suitable for achieving the desired legitimate purpose. For example, if a riot can be terminated by using a water cannon or by shooting at the insurgents, the water cannons are the necessary means. It is not necessary to shoot at them in order to achieve the goal. The fourth step of the principle of proportionality refers to the adequateness of means and ends. It is, so to say, not adequate to use a sledgehammer to crack a nut. For example, when groups of Hooligans are fighting each other and threatening damage to shop windows, it would not be adequate to shoot at the Hooligans because it is not adequate to defend a good of relative low value (shop windows) by destroying goods of relative high value (human life). If no other means are available to end the fight, the police may not intervene. It is obvious that the application of the principle of proportionality is not like a mathematical calculation. There is of course a large margin of appreciation or discretion in the application of the principle. Nevertheless, it structures the process of balancing and allows to a certain extent some rational control. So, it serves the purpose of minimalizing interventions and restrictions on the freedom of action while also optimizing the realization of that freedom. ? Do You Still Remember?
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1. Do you know codifications that mention the principle of liberty? 2. What is the content of the principle of liberty? 3. What is the difference between rules and principles and why is there not right to liberty, but only a principle of liberty? 4. Is the principle of liberty part of supra-positive law?
For the answers, see 7 Chap. 21.
359 Reading Recommendations
Reading Recommendations Alexy, Robert: A Theory of Constitutional Rights. Oxford 2010 Barak, Aharon: Proportionality and Principled Balancing. In Law & Ethics of Human Rights 4/1 (2010), Art. 1 (Comment: Barak uses the term “human right” where it is more appropriate to talk about the principle of liberty. His description of the proportionality principle is, however, elucidating.) Dworkin, Ronald: Taking Rights Seriously. Cambridge MA 1977, chapter 2. Mill, John Stuart: On Liberty. 1859, chapter 3. http://www.gutenberg. org/ebooks/34901 Moran, Gabriel: Uniquely Human. The Basis of Human Rights. 2013 Orbán, Viktor: Speech of 26 July 2014 in Tusnádfürdő. http:// budapestbeacon.c om/public-p olicy/full-t ext-o f-v iktor-o rbans- speech-at-baile-tusnad-tusnadfurdo-of-26-july-2014/10592 Silkenat/Hickey/Barenboim (eds.): The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat). Cham, Heidelberg, New York 2014
Case Law BVerfG, judg. of 16/01/1957-1 BvR 253/56 –, BVerfGE 6, 32 (“Elfes”). BVerfG, dec. of 16/03/1971-1 BvR 52, 665, 667, 754/66 –, BVerfGE 30, 292, 316 Court of Justice of the European Community, jud. of. 17/12/1970 – C11/70 – “Internationale Handelsgesellschaft”, § 12. https://curia. europa.eu/jcms/jcms/j_6/en/ > case-law US Supreme Court, Lochner v. New York [198 U.S. 45 (1905)]
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he General Appearance T of Equality Within Human Rights Codifications – 363
19.2
I s There a Human Right to Equality? – 365
19.3
I s There a Human Right Against Discrimination on Reasons of “Race”, Color, Sex, Etc.? – 368
19.4
I s There a Human Right Against Discrimination on Reasons of Making Use of Human Rights? – 371 Reading Recommendations – 373
© Springer Nature Switzerland AG 2023 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-031-32292-1_19
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“Equal” Rights The expression “equal rights” in some human rights instruments does not refer to the principle of equality. It repeats only what is self-evident for human rights: that everyone is entitled to enjoy them, that is, that no one may be infringed by a violation of them. This constitutes the general character of human rights and has nothing to do with equality.
The Principle of Equality The principle of equality can only meaningfully be applied to the relationship of the members of a cooperative community. It refers to the standards of distribution of burdens and benefits of the cooperation. Privileges need particular arguments that can show their rational acceptance by the least privileged members of the community. Beyond the frame of cooperative communities, there is no moral reason for any equal treatment. In contrast, some philosophers who call themselves Egalitarians assert that equality in the meaning of equal treatment is the self-evident substantial principle of any morality and must therefore apply to all human beings or living entities, regardless of whether they are members of the same cooperative community (the Presumption of Equality Thesis).
The Discrimination Ban Discriminating actions relating to the reduction of freedom of action cannot be considered a matter of human rights even where the actions are motivated by racist or gender related grounds or the like. Nevertheless, they must be banned in the interest of preventing conduct that at some point may lead to serious violations of human rights. This is one of the aims of the positive law of a decent state.
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363 19.1 · The General Appearance of Equality Within Human Rights…
19.1
he General Appearance of Equality T Within Human Rights Codifications
There is still another important principle that is to be strictly distinguished from the corpus of human rights. That is the principle of equality. Nevertheless, there are huge misunderstandings concerning the characteristic of equality in the context of human rights. The reason for this is that equality seems to be mentioned very often in human rights codifications. This is why many philosophers think that there is a close connection between human rights and equality, or even that equality can be considered a specific object of a human right. Contrary to the principle of liberty, the principle of equality—or maybe the right to equality—seems to be mentioned more often in human rights codifications. Article 1 UDHR starts with the declaration that “all human beings are equal in dignity and rights” (see . Fig. 19.1). Furthermore, Article 2 of the same provides that “everyone is entitled to all the rights and freedoms set forth in this Declaration” (see . Fig. 19.2). In a similar way, the ECHR declares in Article 14 that the “enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination.” (see . Fig. 19.3). Do these provisions add something to the list of human rights? Do they express something particular to a specific human right? The answer is “obviously not,” if we consider that each of the other articles of the Convention
“Equal” Rights
. Fig. 19.1 Article 1 UDHR
. Fig. 19.2 Article 2 UDHR
Human Right to Equality?
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. Fig. 19.3 Article 14 ECHR
dealing with a particular human right start with the words “Everybody” or “No one.” There is only one exception. Article 12 ECHR refers to the right to marry and the right to establish a family. These rights are guaranteed only for men and women. Obviously, the convention does not touch on the issue of transgender people, which at the time of the drafting process was not an issue of public debate. If someone were to argue that transgender people do not possess the right to marry and establish a family, Article 14 ECHR could become relevant to such discussion. For it prohibits the discrimination on the basis of sex. Nevertheless, I think we can set this case aside. Considering that the ECHR is considered a “living instrument” (see 7 Chaps. 1 and 10), it is easy to include transgender people in the frame of “men and women.” By doing so, we understand Article 12 ECHR as a means of conferring the right to marry and the right to establish a family to everybody. This leads to the initial conclusion that any kind of discrimination in terms of a person’s enjoyment of any individual human right is automatically prohibited. In this regard, Articles 1 and 2 UDHR as well as Article 14 ECHR do not add anything to the list of human rights. In other words, they cannot be considered separate human rights. Does this result change if we take into consideration that Article 2 UDHR and Article 14 ECHR prohibit any discrimination on the grounds of sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status? Obviously not. Considering that including the words “everybody” or “no one” with each individual human right ensures that nobody is excluded from possessing human rights, any such exclusion similarly could not be perpetrated on the basis of particular grounds. So, it seems to be obvious that the quoted clauses of the UDHR as well as of the ECHR are simply superfluous.
Special Discrimination Bans
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365 19.2 · Is There a Human Right to Equality?
They repeat only what is already said in the individual human rights provisions. The case law of the ECtHR confirms this view. There are several decisions of the ECtHR where the court determined a violation of Article 14 based on discrimination of the applicants when exercising their human right. Accordingly, the court decided that the prohibition of public demonstrations of LGBT activists by Russian authorities violates not only their right to free assembly (Article 11 ECHR), but also the discrimination ban of Articles 14 ECHR. Nonetheless, whether the court determines a violation of Article 11 ECHR alone, or a violation of Article 14 ECHR as well makes no difference. It is important that the violation is not based on the act of discrimination, but on the oppression of the communication rights. The reference to equal rights has nothing to do with the principle of equality. It stresses only the generality of human rights. Equality would come into play only if it were true that person A may enjoy the human rights only because person B also enjoys them and because there would be a principle according to which person A and person B should be treated equally. But this is not what is meant by “equal rights.” Person A enjoys human rights only because they are a person and regardless of what is going on with other persons.
19.2
Is There a Human Right to Equality?
So, we come to the conclusion that the classical human rights codifications do not contain the principle of equality. But what about Article 20 of the EU Charter of Fundamental Rights (see . Fig. 19.4) and Article 3 (1) GG (see . Fig. 19.5)? These clauses declare that all persons are equal before the law. This text comes from the German Constitution of 1849. The idea behind the wording was to hinder courts of law and administrations from applying the same law differently depending on whether they had to deal with an issue of someone from the lower classes or someone from the higher classes. The law should
. Fig. 19.4 Article 20 EU Charter
Equality Before the Law
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. Fig. 19.5 Article 3 (1) GG
. Fig. 19.6 Scales (© Sophie Reinisch)
Characteristic of Equality
be applied equally. Nowadays, this rule is also quoted to indicate that not only the application of a law but also the content of the law itself has to comply with the standard of equality. The law itself may not discriminate. Our question, however, is whether these clauses express a genuine human right or whether they refer to something different. So, the question is again whether there is a free-standing principle of equality that cannot be derived from human dignity or whether these clauses express a separate human right. We have already dealt with the problem of equality in 7 Chap. 3. Now, I want to take a deeper look at the issue. In order to understand the characteristic of equality, it is very useful to refer to a metaphor that was coined by the Swiss philosopher Angelika Krebs (∗1961). She explains the categorical difference between human rights and equality by using the picture of a beam scale and a decimal scale (see . Fig. 19.6). Equality refers only to the equilibrium of the two pans of a beam scale. It does not matter what is on the pan. It is only crucial that the weight of one pan is exactly as high or low as the weight of the other pan. In contrast, human rights are like a decimal scale. They deliver an absolute standard of what is needed for a dignified life. If this minimum threshold is not met, then human beings are living under inhuman conditions, regardless of whether they are the only person in such conditions or if they are one of many persons that are equally affected by the same conditions. If a person suffers from a lack of the goods which are protected by human
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367 19.2 · Is There a Human Right to Equality?
rights, then the problem is not that the needs of other people are satisfied. The problem is that the person in need does not possess what they need for a dignified life, regardless of the situation of other persons. The standards of human rights are objective standards while the standards of equality are relative standards. Equality always refers to human beings as elements of a collective web. Equality is a principle of distribution of burdens and benefits among the members of a group. Equality always depends on what the individual deserves in relation to each other members of the relevant group. Equality, therefore, is a standard of justice in cooperative structures. Human rights, in contrast, always refer to human beings as particular individuals. Human rights are not a matter of distribution. Human rights are not things that can only be enjoyed by those who deserve them. Human rights are not things that must be earned. Human rights are standards of justice that relate to all living entities who are endowed with the capacity for personhood. So, human rights are never a matter of comparison. This shows that the principle of equality is an independently existing principle. It is to be strictly distinguished from human rights. Nevertheless, the idea that equality only refers to the members of a cooperative community and to the question of how the burdens and the benefits of cooperation should be distributed among its members is in our days very controversial. There is a group of very influential philosophers who share the opinion that equality and not human dignity is the fundamental principle of any universal morality. They call themselves Egalitarians (Gosepath, Tugendhat). They hold the opinion that membership in a cooperative community is not a required condition for applying the principle of equality. Instead, the required condition for the principle of equality is simply the general competence to cooperate. Therefore, they conclude that the principle is applicable to all human beings or at least to all persons. Other Egalitarians go beyond that, defending the thesis that equality does not refer to cooperation, but to equal natural properties like the ability to suffer (Singer). From this point of view, they conclude that the principle of equality also applies to the relationship between human beings and animals. In any case, the principle of equality in the Egalitarian sense means that equal treatment is always morally justified if there are no exceptionally particular reasons to treat subjects differently. The differentiation, and not the equality or the equal treat-
Characteristic of Human Rights
Egalitarianism
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Systemic Fallacy
ment, must be justified. This is called the presumption of equality thesis. The principle of equality is in this meaning a principle that regulates the burden of argumentation. It is a procedural principle. In the eyes of Egalitarians, the principle of equality is self-evident. It does not need any further justification or argumentation. I guess that this approach is based on a certain kind of fallacy that consists in illogically enlarging a principle beyond the system for which it is justified by ignoring the specific conditions of that system. The requirement of equal treatment under the condition of cooperation becomes enlarged beyond the system of cooperation by ignoring that only cooperation delivers the sense under which equal treatment can be justified. The requirement of equal treatment is not self-evident. It is well grounded in the argument of cooperation. Without this argument, equal treatment is not self-evident and suffers from a lack of justification. The presumption of equality thesis reminds me of a famous argument by which the theologians of the Middle Ages tried to prove the existence of God. They argued that every phenomenon in the world is caused—that is, every worldly phenomenon is based on causation. So, they concluded that whatever exists is caused. If the world as a whole exists, it must have been caused. And the cause of the world as a whole is what they called God. They ignored the fact that systemic conditions are only applicable to the system in question and not to relationships that go beyond such a system. They overlooked that the conditions inside the world do not imply the same conditions for a system in which the world is only an element.
19.3
Discrimination on Grounds of Unavailable Properties
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I s There a Human Right Against Discrimination on Reasons of “Race”, Color, Sex, Etc.?
So far, we have clarified that human rights by definition refer to every human person so that human rights are not equal rights but the same rights. Equality is something different from human rights. Furthermore, we have clarified that the principle of equality refers to the fair allocation of the burdens and benefits of cooperation among the participants of the respective cooperative community. Equality is therefore not a universal standard, but a stan-
369 19.3 · Is There a Human Right Against Discrimination on Reasons…
dard that can only be applied to particular communities. There is, however, still another aspect of equality. There is a kind of unequal treatment that is not connected with fair sharing of burdens and benefits, but with a kind of devaluation and humiliation in regard to certain attributes of human individuals that are immutable or otherwise unreasonable for humans to change. I think of cases where individuals are treated unequally because of their sex, “race,” color, language, religion, political or other opinion, social origin, association with a national minority, and the like (unavailable properties), without violating human rights. Take the case of two flight assistants. Both of them earn an appropriate amount of money, but one of them earns 400 EURO less than the other because the former is female while the latter is male. We can discuss this case in terms of a fair burden-benefit distribution, but it is also possible to understand the unequal payment as an expression of a devaluation and humiliation of the female sex. The same is true for the case of the Roman Catholic Church where women, in principle, do not have access to higher offices like the office of a priest or a bishop. Is it because the men in the church want to defend their privileges on egoistic grounds or is their behavior steered by a fundamental attitude of devaluation and humiliation of the female sex? In the following case the situation is clearer. Someone is denied access to a public theater or restaurant simply because they are black. There are no tiers of cooperation between someone who wants to visit a theater and the owner of the theater who denies entry. In this case, cooperation between the two only starts with the granting of access because a contract has been executed between the two that establishes a community of cooperation between them. So, here we have a case where it is very clear that the situation is not motivated by egoistic interests in an unfair benefit-burden distribution, but simply by the racist attitude of the owner. The owner regards the applicant as unworthy to visit the theater solely because of their skin color. How should we consider cases of this kind? Some philosophers hold the opinion that such discriminating attitudes must be considered violations of human rights because race or gender discrimination and the like constitute a disregard for human dignity. They think that there is a need for rights which defend and protect against such acts of disregard. Rights which serve the defense and
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Rank Theory of Human Dignity
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Risks for Human Rights
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protection against the disregard of human dignity are to be regarded as human rights. It follows that there is a human right not to be discriminated against on the grounds of sex, race, etc. These philosophers consider human dignity as a status or a rank that demands a certain kind of respect toward the bearer of the status. So, denying access to a theater solely on the basis of skin color is, so to say, an act of “lèse-majesté.” Human rights have the function of protecting the holder against such acts of lèse- majesté (Waldron, Stöcker). Nevertheless, this is not an understanding of human dignity and human rights that is based on the absolute value of personhood. Being denied access to a theater does not put a person at risk of having their personhood infringed. This also applies if access to a theater is denied not because of inability to pay for a ticket, but for racist reasons. These cases of discrimination are therefore not to be considered a violation of human rights. Nevertheless, this is only a part of the story. We also have to take into account that a regular and wide spread social practice of excluding people from theaters solely on grounds of their skin color produces a social atmosphere where such people are forced to regard themselves as inferior because they are regarded as inferior by their fellow humans. They lose the awareness and self-esteem as persons and cease to trust in their own competence to lead their life on the basis of their own considerations and reflections. They will then start to subject themselves to the will of others. At the same time, the general acceptance of discrimination on grounds of sex, race, and the like allows a conviction in the mind of the majority that the part of the population that is being discriminated against is indeed less worthy and cannot be considered bearers of the same human rights. Sooner or later, serious acts of violations of human rights will follow from such attitudes. Single acts of discrimination cannot be considered violations of human rights because they do not produce a serious threat to the personhood of the victim. In the long run, however, acts of discrimination tend to create a threat to human rights. They must be banned in the interest of preventing conduct that may at some point lead to serious violations of human rights. Therefore, a state that is committed to the protection of human rights has the duty to act against discrimination through the means provided by
371 19.4 · Is There a Human Right Against Discrimination…
positive law. Thus, laws prohibiting discrimination should not be seen as positivation of supra-positive human rights, but as a precautionary measure by positive law.
19.4
I s There a Human Right Against Discrimination on Reasons of Making Use of Human Rights?
There is still another variant of discrimination in the context of human rights. It does not consist in a reduction or restriction of a particular human right but in the infliction of disadvantages because someone makes a special use of their human rights. Consider the following case. A Catholic chief physician worked in a Catholic hospital. His employment contract read that: “Catholic employees are expected to recognize and observe the principles of Catholic doctrinal and moral teaching.” After his divorce, he remarried. This is against the Catholic doctrine. Consequently, the hospital carrier terminated the employment. The doctor brought legal action for protection against the dismissal. The ECJ and subsequently the German Federal Labor Court declared the dismissal unlawful, because it (1) violated Article 21 of the EU Charter of Fundamental Rights and (2) was also incompatible with an EU Directive prohibiting less favorable treatment of persons compared to others on reasons of religion. The main argument of the judgements was that Catholic employees were discriminated against because their non-Catholic coworkers did not similarly face the risk of termination if they also remarried. I have some doubts as to whether, in this case, discrimination based on religion is in question. It seems more about the right to marry and to family life, but the chief physician was not prevented from remarrying. He should only have to accept the termination of his employment, but there is no human right to the post of a chief physician. The idea behind the prohibition of discrimination does not therefore refer to the impairment of human rights, but to the fact that someone who wants to exercise his human rights (here: the right to marry) in a certain way must pay a higher price for it. The idea behind the judgement seems to be that the enjoyment of human rights should not be made more expensive for Catholics com-
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pared with non-Catholics. It is important that the price does not consist in the restriction of the human right itself but in a currency beyond the scope of human rights, i.e., the physician’s employment. However, the question of whether the enjoyment of human rights may have a price is not a question that is answered by the human rights regime itself. Rather, the answer always lies in the system of the respective ordinary law, which is to be applied in this particular case. This is even confirmed by the EU directive that should apply in the chief physician case. In Article 4 of this directive (Council Directive 2000/78/EC of 27 November 2000) is provided that:
»» a difference of treatment … shall not constitute discrimi-
nation where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, ….
This provision shows that the enjoyment of human rights can in certain situations be connected with a certain price. On the one hand, it is not an occupational requirement for a physician not to marry a second time. On the other hand, it is an occupational requirement for a Catholic priest not to marry at all. If he wants to make use of his human right to marry he has to pay the price by quitting his job. For the functionary of a political party, it may be an occupational requirement not to express a political opinion that is incompatible with the political orientation of the party. For the employee of a tobacco factory, it can be an occupational requirement not to engage in an anti-smoking campaign. All of them have to pay the price when making use of their human rights. Therefore, it cannot be said that under all circumstances you must treat people equally regardless of the way they exercise their human rights. There is no general ban of discrimination in this respect. Discrimination bans are rooted in the logic of the context in which they exist, not in human rights. ? Do You Still Remember?
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1. What do Article 2 UDHR and Article 14 ECHR add to the list of human rights? 2. Why does the expression “equal human rights” have nothing to do with the principle of equality? 3. What is the function of the principle of equality?
373 Reading Recommendations
4. Is there a human right not to be discriminated on the grounds of sex, “race,” color, religion, political or other opinion, social origin, association with a national minority, and the like?
For the answers, see 7 Chap. 21.
Reading Recommendations Arneson, Richard: Egalitarianism. In Standford Encyclopedia of Philosophy, 2013. https://plato.stanford.edu/entries/egalitarianism/ Gosepath, Stefan: Equality. In Standford Encyclopedia of Philosophy 2007. https://plato.stanford.edu/entries/equality/ Krebs, Angelika: Gleichheit oder Gerechtigkeit. Die Kritik am Egalitarismus. 2021. http://www.gap-im-netz.de/gap4Konf/ Proceedings4/pdf/6%20Pol1%20Krebs.pdf Krebs, Angelika: Gleichheit oder Gerechtigkeit. Texte der neueren Egalitarismuskritik. Frankfurt 2000 Neuhäuser, Christian/Stöcker, Ralf: Human Dignity as Universal Nobility. In: Düwell/Vraarvig/Brownsword/Mieth, The Cambridge Handbook of Human Dignity, 2014, pp. 298 Singer, Peter: Animal Liberation. 1975 Tugendhat, Ernst: Vorlesungen über Ethik. 1995 [p. 374] Waldron, Jeremy: Dignity and Rank. In European Journal of Sociology 48 (2007), 201
Case Law Court of Justice of the European Union, judgement of 11/09/2018 – C-68/17 –, ECLI:EU:C:2018:696, http://curia.europa.eu/ ECtHR, judgment of 27/11/2018–14,988/09 –, “Alejseyev et al. v. Russia”, HUDOC
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Methods for Resolving Norm Conflicts – 379
20.2
reedom of Action v. Freedom F of Action – 380
20.3
argin Human Right v. M Freedom of Action – 381
20.4
argin Human Right v. Margin M Human Right – 383
20.5
reedom of Action v. Core F Human Right – 385
20.6
argin Human Right v. Core M Human Right – 386
20.7
ore Human Right v. Core C Human Right – 389 Reading Recommendations – 396
© Springer Nature Switzerland AG 2023 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-031-32292-1_20
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Conflicts in the Field of Liberty and Human Rights The German Federal Constitutional Court developed a doctrine whereby courts must strive to identify a socalled “practical concordance” within all conceivable conflicts of law (BVerfGE 28, 244 [261]; 35, 202 [225]). In contrast, philosophical analysis shows that the appropriate solution of conflicts in the field of liberty and human rights depends on which position in this field is affected. There are three different positions: 1. the core area of human rights; 2. the margin area (“yard”) of human rights; and 3. the area of freedom of action.
Conflicts in the Area of Freedom of Action In a conflict between the freedom of action of one person and the freedom of action of another person, different ways of restriction are possible that make sure that the “choice of one can be united with the choice of another in accordance with the universal law of freedom” (Kant). Finding a practical concordance or alternatively engaging in a process of balancing is always possible. The restriction has to be justified under the principle of proportionality (example: BVerfGE 80, 137, “Riding in the woods”).
Conflicts Between the Liberty Principle and the Margin Scope of a Human Right Behavior that falls under the protection scope of the margin area of a codified human right is to be regarded as having a higher rank than behavior that only falls under the protection scope of the principle of liberty. In such a conflict, the former is to be privileged over the latter (example: BVerfGE 104, 337, “Ritual Slaughter”).
377 Chapter 20 · Rights in Conflict
Conflicts in the Area of the Margin Scopes of Human Rights In the case of a conflict between a behavior of person A that falls under the protection scope of the margin area of a codified human right and a behavior of person B that also falls under the protection scope of the margin area of a codified human right, the conflict can only be resolved by looking for a practical concordance or, where this is not possible, to engage in a process of balancing. Neither conflicting interest is to be given preference over the other (e.g., right to privacy in public v. freedom of the press—BVerfGE 101, 361).
Conflicts Between Freedom of Action and the Core Area of a Human Right In conflicts between freedom of action and the core area of a human right, the interest that is protected by the human right must always be preferred. There is no space for a process of balancing or for a practical concordance (e.g. using fine dust emitting vehicles/right to life—BVerwGE 161, 201).
Conflicts Between the Margin Area of a Human Right and the Core Area of a Human Right In conflicts between the margin area of a human right and the core area of a human right, the interest that is protected by the core area of a human right must always prevail. There is no space for a process of balancing or for a practical concordance (e.g., abortion cases—BVerfGE 88, 203).
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Conflicts Between the Core Areas of Two Human Rights Conflicts between two interests when each of them is protected by the core area of a human right can very often be described as a conflict between the moral duty to do something and the moral duty to refrain from doing something. In these cases, the conflict can almost always be resolved by preferring the duty to refrain from doing activities that are contrary to the core content of a human right. This follows from the fact that the responsibility for actions weighs heavier than the responsibility for omissions. In the case of actions, we bear the responsibility not only for the immediate result of our action, but also for the further course of the world. In the case of an omission, we only bear the responsibility for the results of our direct behavior, but not for the further course of the world (e.g., terrorist attack by using an airplane with innocent passengers— BVerfGE 115, 118).
Moral Dilemmas It cannot be ignored that there are conflicts between the core areas of different human rights that cannot be resolved by the distinction of action and omission. Only in these cases do we face an insolvable moral dilemma. While legal dilemmas are supposed to be excluded from the legal system in principle, moral dilemmas cannot be excluded from morality because morality is developed in an inductive manner while law is developed in a deductive manner. A serious problem for the legal system arises if the entire morality of human rights is implemented in the legal system. The legal system can become incomplete where the morality of human rights embraces moral dilemmas.
379 20.1 · Methods for Resolving Norm Conflicts
20.1
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Methods for Resolving Norm Conflicts
Now that there is greater clarity on human rights on the one hand and on the principles of liberty and equality on the other, I would like to address the problem of norm conflicts in this final chapter. The solution of such conflicts depends on whether we must consider the right or the normative position in question as an absolute position or as a relative position. During the course of this book, we have distinguished between three different positions (see . Fig. 20.1): 1. the core area of human rights; 2. the margin area (“yard”) of human rights; and 3. the area of freedom of action.
In case law, it is unfortunately not typical to distinguish between these three areas. Therefore, it is very often not clear which criteria the courts use to solve normative conflicts. The German Federal Constitutional Court only developed a very vague theory whereby courts must strive to identify a so-called “practical concordance” within all conceivable conflicts of law. This expression was first introduced in case law in two judgments of the Court of 1970 and 1973. Regardless of whether the conflict only implicates freedom of action or the margin or even the core of a human right, according to this doctrine the court must look for a compromise (fair balance) that allows the parties to realize their conflicting rights to optimal levels. Only in cases where such a compromise seems be impossible should the
. Fig. 20.1 Three areas of freedom
3 Different Areas of Protection
Practical Concordance
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court move to a process of balancing. The criteria of this process, and particular the question of the relative weight of each of the conflicting rights, remains open. The ECtHR has not yet adopted this doctrine. So far as I can see, it has been mentioned only once in a dissenting opinion of 2007 by ad hoc judge Heinz Schäffer from Austria. By clearly distinguishing between the three areas, conflict decisions become much more transparent and comprehensible.
20.2
Freedom of Action v. Freedom of Action
The first variant of a norm conflict is a conflict between the freedoms of action of two different persons. According to the famous teachings of Immanuel Kant, the freedom of action of any person is limited by the freedom of action of another person (see . Fig. 20.2):
»» Law is the sum of the conditions under which the choice
of one can be united with the choice of another in accordance with a universal law of freedom.
This principle, however, does not solve any particular conflicts because the same principle must be applied to the freedom of each person. Since the limits of the freedom of the latter is not determined it is not possible to determine the limits of the freedom of the former. Therefore, we need an authoritative decision. This is the task of the legislator and, in conflicts which are not regulated by statute, it must be the task of the judge. There
. Fig. 20.2 Freedom of action v. freedom of action
381 20.3 · Margin Human Right v. Freedom of Action
is no fundamental difficulty because freedom of action is only protected by the principle of liberty. There is no absolute protection scope in this area. A classical case that fell in this area was the so-called “Riding in the Woods” case of the BVerfG of 1989. Due to a law from 1980, riding in the woods was only permitted on paths designated by signposts as equestrian trails. The applicant raised a constitutional complaint on the ground that this legislation restricted his freedom of action without any justification. Riding in the forest did not violate the rights of others, did not damage the forest, and did not violate the constitutional order. The Court decided that prohibiting riding in the woods outside of the designated trails was in accordance with the Constitution. The basis of this decision came from a generalized and abstract statute which served a legitimate aim, namely avoiding the harm resulting from potential encounters between pedestrians and horses as well as the harm resulting from the loosening of the forest floor that is connected with riding. It is a typical regulation that unites the choice of one with the choice of another in accordance with the principle of liberty. The rule was further considered to be suitable, necessary, and adequate.
20.3
“Riding in the Woods”
argin Human Right v. Freedom M of Action
Another variant of conflicts of that kind refers to a conflict between the freedom of action of two persons, either. The difference to the first case is only that the interest of person A falls in the marginal protection scope of a codified human right while the interest of person B does not fall in the protection scope of a human right but only in the field of the liberty principle (see . Fig. 20.3). Although the margin scope of a human right only refers to freedom of action, we can say that activities that are cached by the margin protection scope of a codified human right or a fundamental constitutional right in general deserve an extraordinary and outstanding appreciation under positive law. Therefore, we have good arguments in favor of the determination that in such a conflict the interest within the margin protection scope should be favored. A good example for such a conflict is the “Ritual Slaughter” case of the BVerfG of 2002. The conflict in this
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Ritual Slaughter
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. Fig. 20.3 Freedom of action v. margin of HR
case, however, was not a conflict between two private interests, but a conflict between the private interest of a Muslim butcher in producing meat, which was recognized as halāl by the Muslim community, and the public interest in animal protection against cruel methods of slaughtering. The Act Concerning the Protection of Animals prohibited the slaughter of animals without numbing. The Act nevertheless granted an exception where it is necessary to meet the needs of members of certain religious communities that prescribe slaughter without numbing or prohibit the consumption of meat of animals that have been slaughtered with numbing. The applicant, a Muslim butcher, wanted to receive such a special permit. The BVerfG came to the result that the interest of the butcher was only protected by the liberty principle (Article 2 (1) GG) and not by the right to freedom of religion (Article 4 (1) GG), but that the freedom to slaughter was in this case somehow influenced by the right to religion, thus giving it a relative higher weight than the public interest in animal protection. The freedom to slaughter was, so to say, charged with more power because there was a certain connection to the right to freedom of religion. At that time, animal protection did not yet enjoy constitutional status. Importantly, the court could not find that the core of the right to freedom of religion had been infringed.
383 20.4 · Margin Human Right v. Margin Human Right
20.4
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argin Human Right v. Margin Human M Right
The graphic below (see . Fig. 20.4) shows the conflict between the margin of a human right and the margin of another human right. In such a case, we cannot say that one of the conflicting interests prevails over the other because both are charged with the same extraordinary weight. So, it is necessary to deal with this conflict in the same way as with conflicts between interests which are covered only by the principle of liberty without any value- based charging. Compromises and balancing are not problematic because interests that fall within the margin scope of a human right are not protected in the absolute. Although they are privileged by positive law, there is no moral need to privilege them. Typical cases include those that refer to the conflict “Princess of Monaco” between reputation and the freedom of classical media where the incriminating message that is the subject of the litigation is true. The freedom of the media belongs to the scope of the freedom of free speech, but it does not fall in the core of this right because the human right to freedom of speech does not protect privileged opportunities to receive attention—which the media clearly enjoys. Still, the interest in maintaining a good public reputation by hiding the constituent conditions of the reputation falls within the scope of the right to privacy, but not within the
. Fig. 20.4 Margin of HR v. margin of HR
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Right to be Forgotten
core of that right. So, it is possible to balance the conflicting interests. Is information about the person concerned relevant to develop a public opinion about important questions of political, economic, or cultural life, or is the interest in the information solely based on pure curiosity? An example of this situation appears in the case of “Caroline of Monaco” of the BVerfG of 1999. Another case of this type is the following: In 1982, the complainant was convicted of murder and sentenced to life. The magazine DER SPIEGEL ran articles on the case in its print edition, which identified the complainant by name. Seventeen years later, the publisher uploaded the articles to the magazine’s online archive, where the articles were accessible for free and without restrictions. When the complainant’s name was entered into one of the common Internet search engines, the articles in question were listed among the top search results. In 2002, the complainant was released from prison. In 2013, the complainant lodged a constitutional complaint seeking to enjoin the magazine from disseminating any information on the criminal case containing his last name. He claimed a violation of his human rights and argued that the online articles associated him with his past crime and thus interfered and burdened his present desire to cultivate social relationships. The complainant did not contest that the murder trial from 30 years ago constitutes a significant event of contemporary history; he argued, however, that the public does not have a continued interest in his name tied to the conviction of 30 years ago. In its “Right to be forgotten I” judgment of 2019, the Court held the opinion that two fundamental rights are in conflict here and that therefore a balancing is required. From our considerations in 7 Chaps. 10 and 11 it is clear that the cores of human rights were not involved here. The “right to be forgotten” refers to confidentiality. The information about the criminal past of the complainant should be hidden to avoid his exclusion from social ties. The right to free speech is not infringed by rules concerning the protection of confidentiality. Confidentiality, on the other hand, is not a matter of the right to privacy, because the fact that is supposed to be hidden does not refer to private life on the backstage. It should be considered whether it is an aspect of an unwritten right to affiliation as a full member of society. I have some doubts whether the right to affiliation in general and the right to be forgotten in particular can be considered as human rights. In any case, the complainant’s interest falls
385 20.5 · Freedom of Action v. Core Human Right
only in the margin of such a right and not in the core. Accordingly, a conflict exists only between the margin of the right to free speech and the margin of the right to affiliation. Dissolving this conflict is a matter of balancing or finding practical concordance and not a matter of absolute rights.
20.5
Freedom of Action v. Core Human Right
The graphic below (see . Fig. 20.5) shows the conflict between freedom of action on the one side and the core of a human right—i.e., the freedom of will—on the other. There is no doubt that the interest that falls within the core of the protection scope of the human right must prevail. Accordingly, there is no basis for any process of assessment or balancing because the protection scope of the human right is absolute while freedom of action only enjoys relative protections. Consider the following example. Fine dust contains particles of different sizes that endanger health. Nevertheless, diesel soot contains ultra-fine dust particles that can penetrate deep into the lungs or even into the bloodstream. Fine dust exposure can lead to heart, circulatory, and respiratory diseases as well as cancer. It can even enhance allergies. Elderly people and children are
. Fig. 20.5 Freedom of action v. core of HR
“Diesel Soot” Case
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particularly vulnerable. The dramatic effect of fine dust particles has been known for a long time. The World Health Organization (WHO) estimates that of two million annual deaths worldwide caused by fine dust exposure, more than 300,000 die in Europe alone. Statistics further indicate that about 75,000 people in Germany die every year because of their exposure to soot particles that are emitted by diesel motors. Driving a diesel vehicle is a realization of freedom of action. Killing people by driving a diesel vehicle is a violation of the right to life. So, there is a conflict between freedom of action on the one side and the right to life on the other. In this conflict, there is no basis for engaging in any process of assessment or balancing. The right to life dominates and the ban of diesel vehicles, particularly in areas where people are living, is well justified. The BVerwG addressed this issue in 2018. Nevertheless, in reaching its decision, the Court only grappled with the interpretation and application of the relevant emission control law and not with any of the implicated human rights, much less the question of how conflicts between human rights and the principle of liberty should be resolved. But we should keep in mind that behind the regular administrative law stands exactly this question.
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Abortion
argin Human Right v. Core Human M Right
The solution in the case of a conflict between the core of a human right and the margin of a human right is exactly the same (see . Fig. 20.6). Of course, the interest that is protected by the core protection scope must prevail. This principle has been disregarded in the abortion cases. In these cases, there is a conflict between the life of the unborn child (fetus) on the one hand and the mother’s interest in not carrying the pregnancy to term and not exposing herself to the stress of childbirth. Since there is no human right to freedom from pregnancy, the mother’s interest actually falls only within the scope of protection of general freedom of action. The U.S. Supreme Court, on the other hand, in Roe v. Wade (1973), assumed that the right to privacy argued for the mother. In my opinion, this can at most be considered in the case of pregnancy after rape. But the question can be left open. For in any case, the
387 20.6 · Margin Human Right v. Core Human Right
. Fig. 20.6 Margin of HR v. core of HR
interest in not carrying a pregnancy to term and avoiding childbirth does not fall within the core area, but only within the marginal area of the right to private life. There can therefore be no doubt that the interest behind the right to life must prevail, because killing against or without the will of the person killed always affects the core area of the right to life. Some proponents of the legitimacy of abortion, however, dispute that the right to life can be violated by killing a human embryo or fetus as long as the fetus has not yet reached a certain stage of development. This argument relates directly to the question of whether human beings can be considered persons when they have not yet developed the capacity for personhood and can therefore only be considered potential persons or proto-persons. As I tried to show in 7 Chap. 14, there is no relevant difference between potential persons and fully developed persons that could justify excluding human fetuses from the scope of protection of the right to life.
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Abortion Cases
The U.S. Supreme Court was nevertheless able to rule in favor of the mother’s privacy because it ignored the conflicting right to life of the unborn without comment. Thus, there was no conflict between competing rights for the Court to decide. The U.S. Supreme Court “overruled” the Roe v. Wade decision in 2022. In Dobbs v Jackson Women’s Health Organization, it held that the right to privacy does not include the freedom to dispose of the life of the unborn. But even in that decision, the U.S. Supreme Court did not recognize a human right to life of the unborn. It merely stated that the right to privacy and the general freedom of action does not result in a right to abortion guaranteed by the U.S. Constitution. Therefore, states are free to decide whether and under what conditions to permit or prohibit abortion. In the view of U.S. jurisprudence, therefore, the life of the unborn human being is still not protected by a human right but the subject of a political decision by state level legislature. The BVerfG of Germany was different. In its 1993 decision, the court took note of the conflict and made the correct assessment by declaring abortion generally unlawful. However, it rightly concluded that this did not yet imply a duty on the part of the state to prosecute abortion. This is because the answer to the question of whether, to what extent, and by what means the state must provide protection against human rights violations by third parties depends, as we have seen, on political considerations. The human rights duty to protect, unlike the human rights duty to respect, is not absolute. Therefore, it is defendable that the BVerfG came to the conclusion that the state cannot be reproached under human rights law if it refrains from prosecution in the case that the pregnant woman first seeks pregnancy counseling. However, this ruling is implausible insofar as the Court also considered it permissible to have the costs of the abortion financed by the public social security system and to impose on the employer the obligation to release the pregnant woman from work for the purpose of the abortion. In this respect, the state clearly violates its duty of respect because it actively contributes to abortion.
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20.7
Core Human Right v. Core Human Right
The . Fig. 20.7 shows the hard case of the conflict between the core of a human right of person A and the core of a human right of person B. Each side claims absolute protection. Neither is reducible. An assessment or balancing procedure is therefore not possible. How should we deal with such a conflict? First, we must distinguish between two kinds of cases. The first kind of cases is epitomized by the fact that the obligor either stands in front of the duty to refrain from doing something or the duty to do something. The second kind of cases relates to a situation where the obligor must either do something in favor of person A or do something in favor of person B. Accordingly, I want to begin by discussing the first variant.
. Fig. 20.7 Core of HR v. core of HR
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Doing v. Omitting
I will give you an example from German case law. The BVerfG had to rule on the constitutionality of a statute that authorized the Minister of Defense to give the command to shoot down an airplane if there is some evidence that the plane has been commandeered by terrorists and will be used as a bomb in order to kill a large number of people (“9/11 scenario”). The statute was essentially based on the Utilitarian idea that in such a situation the life and happiness of the passengers of the plane have less weight than the life and happiness of the people that form the targets on Earth because the latter group is larger than the former group. The BVerfG (2006) voided the law by arguing that human dignity does not allow an assessment of the value life in terms of quantity. The life of the passengers would be of the same value as the life of the people on Earth. Regardless of the reason, it is impermissible to kill even a single person. For their right to life is absolute and never up for disposal. It is obvious that this argumentation is not complete. The fact that both the value of the passengers on board and the value of the people on Earth are identical does not provide a hint as to how the conflict should be decided. We get a hint only if we recognize that the conflict consists of the conflict between the duty to refrain from killing the passengers and the duty to do something, namely to rescue the people on Earth by killing the passengers. In most cases, there are very good arguments in favor of the opinion that our moral responsibility concerning our affirmative actions is relatively higher than the moral responsibility concerning our omissions. Refraining from doing something only amounts to not disturbing the course of the world. We do not shape what happens and we do not take responsibility for the course of the world. If we do something, we initiate or steer the course of the world. By doing so, we become responsible for the course of the world. This is risky if our control over the consequences of our actions is incomplete and full of gaps. In this case, we assume a responsibility that we cannot actually bear. There is still another argument in favor of the duty to refrain from doing something. The moral duty to do something always refers to a duty to support or to rescue someone else. To help or to rescue someone else is of course a moral merit. But an obligation to help or to rescue can only refer to the application of means which are in accordance with morality. We cannot be morally obliged
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to support someone else if the support is only possible by immoral means. However, there are cases in which the decision principle of “non-action is better than action” does not lead to a convincing result. These are the cases of self-defense and emergency assistance. In these cases, the law allows repelling of an unlawful attack, even if this results in the loss of the attacker’s goods, which are also legally protected. (cf. § 32 German Penal Code). Here, we are interested in cases in which the defense, in order to be successful, must necessarily consist of injuring the aggressor on goods that are protected under human rights law. Does the absolute value of these goods not dictate that self-defense be dispensed with and that damage to one’s own legal rights be accepted instead? Such an obligation to tolerate will indeed have to be assumed if the goods to be defended do not themselves have a human rights status but can nevertheless only be protected by violating the attacker’s human rights-related goods. It can therefore not be morally justified to repel an attack on property that is not necessary for survival by killing the attacker. But what about if the attacker himself seeks the life of his victim? In this case we have a conflict between human rights core and human rights core. In such a case, doesn’t the attacked person have to sacrifice their life rather than kill the attacker? The rule of priority of omission over action would dictate this. In a self-defense situation of this kind, a person is faced with the alternative of either respecting the human rights of the aggressor at the price of giving up their own or protecting their own by violating or destroying those of the aggressor. Those who choose the first alternative thereby forego the conditions of the possibility of leading a life of human dignity themselves. For such a life is possible only on condition that the goods protected by human rights are available. Thus, whoever respects the human rights of the aggressor in a self-defense situation, at the same time disregards their own human rights and thus renounces their own self-determination. This, however, is not required by human rights because they do not weigh the legal rights of others higher than one’s own. Just as human rights cannot be violated by someone failing to help others in existential need, they are not violated by someone defending their own human-rights-protected goods at the price of violating the goods of the aggressor.
Self Defense
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Moral Dilemmas
In both cases, what is at stake is the preservation of the agent’s conditions of life worthy of human dignity. The same arguments that lead to the conclusion that no general human rights obligations to help can be derived from human dignity (cf. Chap. 15.6) thus also justify self- defense. This idea must also be made fruitful for the problem of the final rescue shot. Now, I want to add some remarks about the second variant of cases. These cases are epitomized by the fact that there is no choice between doing and refraining from doing something. Indeed, these cases only concern the duty to do something. Take the following example. Unborn twins are connected to each other in the uterus of the mother. Both will die if they are not separated. The doctor can carry out the necessary operation, but it will cause one of the children to die. The doctor is faced with the question of which one to rescue and which one to kill. In this case, it is beyond any doubt that the doctor is obliged to do something, namely to rescue at least one of the children. This is better than doing nothing. But they must decide which child to rescue and which to kill. Does human rights law give an answer as to what should be done? If we concede that both children hold the right to life, we face a serious dilemma. The possible existence of such dilemmas put into question very important elements of the classical legal theory. Most legal theorists agree that a legal order must be free from conflicts that cannot be resolved though legal means (Dworkin, Alexy; see 7 Chap. 18). If there are two contradicting claims and each of them are legitimated by a legal rule, there must be another legal rule according to which the conflict can be decided. I think that this doctrine of the completeness of the legal order can only be maintained if human rights figure out of consideration. In former times, legal regulations could always be characterized by moral principles. In the case of a conflict, however, the law always had the last word. The law could defer moral demands so that the unity, completeness, and consistency of the legal system could be maintained. Nevertheless, this is no longer possible if we introduce the rule of human rights into the corpus of the legal order. In order to understand the problem, we must consider the different characteristics of law and morality (see . Fig. 20.8). The modern legal system starts with general and abstract rules, which are laid down in the constitution.
Completeness of Law
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. Fig. 20.8 Induction of morals/deduction of law. (Created by author, © crowd: Sophie Reinisch; © Man Icon: Sophie Reinisch)
Authorized institutions like the parliament, the judiciary, or administrative bodies have the task of concretizing the corpus of all the single detailed rules and regulations into a coherent legal system. So, we can say that the legal system is developed in a deductive manner. In other words, it is based on an intellectual construction that aims to ensure that the system includes a legal answer to every possible future legal conflict. This is necessary because in the case of conflicts, parties are supposed to call a court, which then has to decide the case. The court, however, can only decide in favor of one party or the other. But the court cannot avoid giving an answer, because this would be the end of the monopoly of power and the end of social peace. Therefore, it is absolutely necessary for the proper functionality of the legal order that it involve conflict rules for any kind of conflict. Modern legal systems are supposed to be complete in this sense. Legal dilemmas have to be excluded.
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Incompleteness of Morality
Nevertheless, as we have seen before, human rights are primarily moral rights. As codified rights, they are moral rights that are transferred to legal rights. It is well known among the philosophers who deal with the philosophical analysis of morality that moral systems can be and mostly are incomplete (Williams). They can have serious deficiencies. In the face of such a deficiency, morality does not teach us what we should do in a given situation. In situations of that kind, we are faced with a moral dilemma. So, according to legal theory, legal dilemmas do not exist because the legal system is always complete and consistent. According to the theory of morality, moral dilemmas exist because the moral system is always incomplete and sometimes inconsistent. What is the reason for this difference? Moral rules are not issued by an almighty and omniscient divine instance or by a parliament who can prescribe the appropriate behavior for all future situations and conflict. Instead, moral rules are incrementally developed over a long period of time, one case at a time. It is a similar to the development of case law in the English Common Law system. Moral systems are not constructed from the top to the bottom—that is, from general principles to detailed rules and recommendations. Indeed, the opposite is true. The moral system initially consists of detailed and particular rules and recommendations that have been proven in the practice of human life. For the purpose of transmitting these moral experiences and knowledge from one generation to the next, it is useful to extract more abstract and generalized rules from these materials in order to make it easier to teach and learn. Thus, morality moves from the particular to the more generalized and abstract. This process ultimately leads to highly sophisticated and very general and abstract moral rules, as is evidenced by Kant’s Categorical Imperative, the Golden Rule, or the principle of human dignity. Considering that morality is developed in an inductive manner, it is possible that there are situations in life for which the given set of moral rules does not provide an answer as to what should be done. In such a situation, we speak of moral dilemmas. So, we recognize that the idea of the completeness of a modern legal system can perhaps no longer be maintained when it comes to the fusion of an entire moral system with the legal system and if the moral system is considered as having a guiding role. This is exactly what happens when
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the entirety of moral human rights is transmitted into the corpus of positive law through codification. One of the most relevant consequences of this transmission is that the legal order has to face moral dilemmas which become legal dilemmas that cannot be solved by legal instruments. If we are faced with a conflict between interests that are both protected by the core protection scope of human rights, it is conceivable that it is not possible to find a legal solution to the problem. Whatever we do will always be contrary to the value of human dignity. Whatever we do will always be unlawful. One way of responding legally to such dilemmas was demonstrated by the Landgericht (District Court) Frankfurt in the Daschner case. It interpreted this case as a conflict between the core areas of two human rights, namely a conflict between the right to life and the prohibition of torture. A perpetrator had kidnapped the young son of a banker. In the course of the police investigation, he was arrested. He admitted to the kidnapping, but was unwilling to name the place where he was holding the boy. Fearing for the boy’s life, Deputy Police Commissioner Daschner threatened the perpetrator with torture in order to find out where the victim was being held. The latter eventually revealed the location. When the police arrived there, however, they found that the boy had already died some time before Daschner’s threat of torture. Daschner was accused and the Landgericht Frankfurt sentenced him to probation and charged him with a fine of 10,800 EURO. The Court recognized that the ban on torture is absolute and that there is no justification to ever torture another, even if it is considered necessary to save the life of an innocent child. (In fact, there was nothing to save because the boy was already dead.) Nevertheless, the Court also had a certain sympathy for Daschner’s behavior. (Comparatively, a judgement of the Supreme Court of Israel of 1999 showed much less sympathy for torture despite the Israel Security authorities’ attempt to justify it in situations involving significantly more extreme threats to life and limb to the people of Israel.) The Court, therefore, imposed an extremely low punishment that was actually seen as only having symbolic value. In the eyes of the Court, the case involved a moral dilemma that could only be answered by a kind of symbolism and not by a serious answer from penal law. I think there was no need to consider this case as a moral dilemma because the conflict can be resolved on the basis of the different moral responsibil-
Legal Dilemmas?
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ity between actions and omissions. But this is another question. Here, I want to only focus on the solution that the Court found for a case that was considered a moral dilemma. And the answer was: we can only react to moral dilemmas in a symbolic way. This solution can, of course, be contested and should be made a matter of further discourse. The end of this chapter, and thus the end of this entire textbook, confronts us with questions instead of answers. Nevertheless, I think this is appropriate for a philosophical book. Philosophy teaches us to ask the right questions. It does not guarantee that we will reach satisfactory answers. Therefore, philosophy is a never-ending inquiry. ? Do You Still Remember? 1. What is meant by “practical concordance”? 2. The application of the practical concordance approach is appropriate in order to decide conflicts on the level of the liberty principle and on the level of the “yard” of codified human rights. Why? 3. Is there a possible standard of decision making in cases of conflicts on the level of the core of human rights? 4. Unity, completeness, and consistency are the three characteristics of a legal norm order. Explain why. Why are these characteristics in danger if a legal order is to be subjected to the rule of human rights?
For the answers, see 7 Chap. 21.
Reading Recommendations Brems, Eva (ed.): Conficts between Fundamental Rights. Cambridge 2008 Gewirth, Alan: Are there Any Absolute Rights? The Philosophical Quarterly 31/122 (1981), 1–16 Gewirth, Alan: There are Absolute Rights. The Philosophical Quarterly 32/129 (1982), 348–353 Kant, Immanuel: Metaphysics of Morals, Introduction to the Doctrine of Right. 1798 (§ B) McConnell, Terrance: Moral Dilemma. In Stanford Encyclopedia of Philosophy, 2018. https://plato.stanford.edu/entries/moral- dilemmas Williams, Bernard: Ethical Consistency. In B. Williams: Problems of the Self. 1973, pp.166
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Case Law BVerfG, judg. of 26/05/1970, BVerfGE 28, 244 [261] (“Dienstpflichtverweigerung”) BVerfG, judg. of 05/06/1973, BVerfGE35, 202 [225] (“Lebach”). BVerfG, judg. of 6/6/1989-1 BvR 921/85 –, BVerfGE 80, 137 (“Riding in the woods”); BVerfG judg. of 28.05.1993-2 bvF 2/90 –, BVerfGE 88, 203 (“Abortion”). English: http://www.bverfg.de/e/ fs19930528_2bvf000290en.html BVerfG, judg. of 09/11/1999-1 BvR 653/96 –, BVerfGE 101, 361 (“Caroline von Monaco II) BVerfG, judg. of 15/01/2002-1 BvR 1783/99 –, BVerfGE 104, 337 (“Ritual Slaughter”). English: http://www.bverfg.de/e/ rs20020115_1bvr178399en.html BVerfG judg. of 15/02/2006-1 BvR 357/05 –, BVerfGE 115, 118 (“Aviation Security Act”). English: http://www.bverfg.de/e/ rs20060215_1bvr035705en.html BVerfG, judg of 06/11/2019-1 BvR 16/13 –, (“Right to be forgotten I”). http://www.bverfg.de/e/rs20191106_1bvr001613.html. Press Release English: n.d. https://www.bundesverfassungsgericht.de/ SharedDocs/Pressemitteilungen/EN/2019/bvg19-083.html BVerwG, judg. of 27/02/2018-7 C 30/17 –, BVerwGE 161, 201 (“fine dust”) ECtHR, judg. of 15/11/2007-12,556/03 –, Pfeiffer v Austria (dissenting opinion by ad hoc judge Heinz Schäffer, Austria), HUDOC Landgericht Frankfurt am Main, judg. of 20/12/2004-5/27 KLs 7570 Js 203,814/03 – NJW 2005, 692 US Supreme Court, judg. of 22/01/1973 Roe v Wade [410 U.S. 113] Supreme Court of Israel, judg. of 06/09/1999 concerning the legality of the general security Service’s interrogation methods https://www. law.umich.edu/facultyhome/drwcasebook/Documents/Documents/ Public%20Committee%20Against%20Torture%20v.%20Israel.pdf
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vvAnswers to Chapter 1
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1.1 hermeneia = interpretation Any interpretation is based on a certain pre- understanding of the text. You must already know something about the meaning of the text before you can get further knowledge about the meaning of the text. 1.2 Naturalistic philosophy = natural science without empirical means Analytical philosophy = Analysis of (basic) concepts in order to improve the understanding of our language and our thoughts. 1.3 Source of power over fellow humans by steering their behavior for the sake of one’s own interests. Those from whom the fulfillment of the right is required must believe to be bound (obliged) by the right. 1.4 Generality (all humans are holders of human rights); Unavailability (rights are a subject of recognition, not of creation); Absoluteness (human rights are “inalienable”); Morality (rights are a matter of conscience, not of punishment); Universality (“common faith of all peoples of the UN”); Super-Positivity (“protected by law”, not made by law).
vvAnswers to Chapter 2 2.1 Utilitarianism refers to “the greatest happiness for the greatest number.” Utilitarianism is incompatible with the idea of subjective rights because it does not allow for the interests of a particular person to triumph over the equal interests of a multitude of persons. 2.2 Illogically concluding norms from facts (from be to ought). 2.3 The idea of a teleological world order is either based on a naturalistic fallacy (concluding norms from factual tendencies) or on a conception of the meaning of life that leads to an infinite regress. 2.4 Methodological Individualism: any kind of moral or scientific theory must be addressed to and can only be approved by individual human persons, because only individual persons are endowed with reason and conscience.
401 Do You Still Remember: The Answers
Normative Individualism: norms can only be justified by the individuals who should be bound (obliged) by the norm.
vvAnswers to Chapter 3 3.1 Individualism, contractual autonomy, natural state (original position). 3.2 They differ in the description of the state of nature. 3.3 Referring to a legislation of God leads to the question of the legitimacy of God’s legislation. Answering this question always leads to an infinite regress. 3.4 The idea of a contract entails the freedom to close or to not close the contract and even the opportunity to cancel it. This is not compatible with the attributes of unavailability, absoluteness, and generality of human rights.
vvAnswers to Chapter 4 4.1 Dignity originally refers to the social status and value of the nobility and serves as the distinction between higher ranked personalities and the rest of mankind. 4.2 The French and German court decisions concerning the dwarf tossing cases are based on a heteronomic understanding of human dignity. 4.3 Human dignity refers to a position and status of human individuals which are connected with strong duties. Someone who does not fulfil these duties loses their status of dignity. 4.4 The competence or ability to create one’s own free will. The status of dignity does not depend on the content of the will. It does not matter whether a will is directed to good or evil.
vvAnswers to Chapter 5 5.1 Intrinsic values (fancy price): preferring something as such, value scale = love, liking Extrinsic values (market price): supply and demand, value scale = exchangeability. Absolute value (dignity): value scale = personal identity. 5.2 The awareness that I am and who I am. I am someone who is the author of my own free will and the source and last reference of all my evaluations.
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Opposite: being an instrument in the hand of others. 5.3 Personhood is the competence of evaluation. Without personhood nothing can have any value. So, personhood is the required condition of any evaluation. Regardless of what our desires and wishes may be, we have fundamental interest in making evaluations. Only because of and based on this capacity can we identify ourselves as authors of our will. 5.4 The personal identity of any person and the personal identity of any other person are equiprimordial like the two sides of the same coin. So, we can respect our own personhood only if we respect the personhood of others. If we do not respect the personhood of others, then we lose respect toward our own personhood.
vvAnswers to Chapter 6 6.1 Borderline Personality Disorder (BPD) Post-Traumatic Stress Disorder (PTSD) 6.2 Yes. According to the results of baby research and developmental psychology, babies have a sense for personhood by nature, so that they can scan their environment for personhood and fix their attention if they recognize something in their environment as a person. 6.3 Yes. There is some evidence for this hypothesis. Someone who ignores and disregards the personhood of others will feel shame. Shame implies a tendency for suicide. Alternatively, the person can avoid the feeling of shame by replacing it with the feeling of guilt. The feeling of guilt is connected to severe feelings of psychical pain and regret. The person can also avoid feeling either shame or guilt by replacing both feelings with neurotic symptoms. Neurosis consists in a kind of psychical displacement. It is “the method of avoiding non-being by avoiding being.” 6.4 In order to distinguish between persons “with dignity” and persons “without dignity,” you must use a standard other than that of personhood. This standard applies to all persons so that all of them are regarded as having no dignity.
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vvAnswers to Chapter 7 7.1 v [has a right] toward x on y of z v = holder of the right x = obligor y = the kind of acting (respect/protection/support) z = protection scope 7.2 According to Kant, an obligation is a coercion of the will. He distinguishes between external and internal coercion. External coercion is a sanction by the state or fellow humans. Internal coercion consists in a bad conscience. 7.3 Obligations are values of the second order. In conflicts related to first order volitions, the person feels bound to the second order volition. This feeling of being bound can be considered an obligation toward oneself. 7.4 Human beings confer rights to others in order to seek help in fulfilling those obligations that the former considers as absolute.
vvAnswers to Chapter 8 8.1 Development and maintenance of personhood. 8.2 Physical violence leads to a loss of control over one’s own body and behavior. The experience of the loss of control leads to a stepwise devaluation of the willingness to produce one’s own free will. It simply makes no sense to produce one’s own will on the basis of one’s own considerations and reflections if it is guaranteed from the beginning that the will that is produced cannot be transformed into meaningful action. 8.3 It is the criterion of cruelty. This criterion is mentioned in many international human rights codifications, but not in Article 3 ECHR. Cruelty means an intentional act by which severe physical or mental pain or suffering is inflicted. 8.4 Inhuman treatment: a treatment that causes intense physical and mental suffering, whether or not combined with bodily injury. Torture: aggravated and deliberate form of inhuman treatment.
vvAnswers to Chapter 9 9.1 Habeas corpus rights cannot be considered human rights. They are merely procedural rights which are
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based on the rule of law and not on the principle of human dignity. 9.2 It is caused by the specific characteristics of a total institution. These institutions reduce the opportunity to make meaningful decisions about one’s own life. This weakens the ability of the inmates to lead their life by according to their own considerations and reflections and finally destroys the ability to create free will. 9.3 The function of Article 10 ICCPR is to ensure decent living conditions under detention. Nevertheless, the protection scope is not sufficiently precise. Furthermore, it seems to refer to the same protection scope as Article 7 ICCPR (ban of torture and inhuman and degrading treatment) and is thus redundant. 9.4 No. The freedom to travel from one place inside a country to another is not a required condition for the development and maintenance of personhood.
vvAnswers to Chapter 10 10.1 Defending the freedom of will against manipulation. 10.2 The protection scopes of many codified human rights go beyond what can be derived from the principle of human dignity. In these cases, it makes sense to distinguish between the “core” of a human right—this is the protection scope that refers to the protection of personhood—and the “yard” or margin of the right, which refers to freedom of action. Rights concerning the “yard” can be restricted within the frame of the codified restriction clauses. Rights concerning the “core” are absolute and may not be restricted. 10.3 The communication rights do not protect privileged positions for the spreading one’s own opinions and convictions. The teacher can make use of their rights by spreading their opinions and convictions outside the school. 10.4 The performative contradiction is a contradiction between a proposition and the speech act by which the proposition is expressed. Example: P asserts that all assertions are false.
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vvAnswers to Chapter 11 11.1 The core function of the privacy rights is defending freedom of will against self-alienation by fixation on role-identities. The privacy rights refer to the protection of an authentic will-making process by ensuring a sphere of life in which persons are not forced to display a role-identity because this sphere is hidden from public control. 11.2 A person who is forced to get married is deprived of the opportunity of establishing an intimate relationship with a sexual partner while also being forced to live with a partner with whom there is no intimate relationship, such that the person concerned is permanently forced to perform a roleidentity in front of the spouse. 11.3 Social relationships of a person to other members of the society outside the walls of hidden intimate relations always establish a position that forces the person to display a role-identity. Privacy refers to a sphere of living in which it is not necessary to play a role-identity but to behave as one really is. 11.4 The human rights are as such a moral standard. There is no morality that can restrict them.
vvAnswers to Chapter 12 12.1 In the context of the Peace of Westphalia (1648). 12.2 Conscience is (1) the knowledge of the standards of morality and (2) the conviction to be bound to them. 12.3 The core function of the right to freedom of conscience is defending the freedom of will against a feeling of moral shame from which the respective person can only escape by suicide or neurotic selfalienation. 12.4 The right to freedom of conscience can be considered a human right because the coercion to commit actions which the agent considers evil leads to the agent’s fixation on a personality that they cannot accept. This leads to a state of self-negation which includes the drive to self-destruction. These tendencies affect not only personality, but also personhood.
vvAnswers to Chapter 13 13.1 The core function of the right to freedom of religion is the protection of access to the religious
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means of resilience against uncontrollable negative life experiences (senseless suffering, senseless injustice, the expectation of one’s own death). 13.2 Religion is the entirety of all techniques that allow a person to maintain the capacity of authentic self-determination and to avoid self-alienation in situations of senseless suffering, senseless injustice, or the expectation of the own death. 13.3 The religious dualism refers to the fact that religious persons share two different worldviews: (1) the profane view and (2) the sacral view. The profane view shows the world as a system of different parts that can be analyzed. The sacral view shows the world as a whole. 13.4 The freedom to believe, to express or share religious beliefs, to organize or to attend religious assembles, and to build or join religious associations is already protected by the communication rights. The freedom not to be forced to cooperate contrary to one’s own religiously influenced conscience is already protected by the general right to freedom of conscience.
vvAnswers to Chapter 14 14.1 It is not possible to harm a person by killing them. For before the act of killing is committed, the person is still alive and not harmed in terms of life. When the act of killing has already been committed, there is nobody who could suffer from the deprivation of life. For the person that has been killed does not exist anymore. They cannot be in an inhuman state of living. 14.2 The function of the right to life is not to protect persons against being brought to an inhuman state of living by an act of killing. Instead, the function is to protect all members of society from a general devaluation of their own existence. The existence of every person may not stand under the conditions of social or private preferences of others when the consciousness of the absolute value of one’s own existence as a person is ensured. 14.3 The death penalty cannot be justified because it disrespects the absolute value of personhood. 14.4 Assisted suicide or acts of killing on demand generally do not violate the right to life because they are committed in accordance with the will of the person who wants to die.
407 Do You Still Remember: The Answers
vvAnswers to Chapter 15 15.1 They depend on the existence of related social institutions. The establishing of such social institutions depends on the resources and political decisions related to the allocation of financial means. 15.2 According to the protestant ethics of capitalism (Max Weber), labor is considered a value as such (intrinsic value). But it is only a means of life. Under favorable conditions it is possible to lead a decent life without working. It is only crucial that a person earns a sufficient income. 15.3 Duties to refrain from doing something only demand doing nothing. To do nothing does not require a large amount of effort. In most cases, it requires no effort at all. In contrast, duties to do something require a stepwise increasing number of efforts. The efforts can come in conflict with the sphere of autonomy that is required to lead a life based on an own free will. 15.4 Yes. If social institutions that are dedicated to the purpose of ensuring dignified living conditions exist, then excluding from these institutions those persons that are in need can be considered inhuman or degrading treatment or perhaps a violation of one of the other classical human rights.
vvAnswers to Chapter 16 16.1 No. There is no codified human right to asylum. International asylum law is primarily codified in the Geneva Refugee Convention of 1951. This Convention does not contain a substantive right to asylum. 16.2 The refoulement ban refers to the prohibition of deporting an alien to a country where they have to face a serious deprivation of goods which are protected by human rights. The refoulement ban is an integral part of every human right. 16.3 No. There is no moral human right for refugees who stay inside a potential host country because refugees in the inland are sufficiently protected by the refoulement ban. 16.4 No. There is no moral human right for refugees who stay outside the borders of the potential host state. The decision on whether to help these refu-
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gees in particular (rather than others) and on the extent of the help is at the discretion of the potential host states.
vvAnswers to Chapter 17 17.1 Property is a pure juridical notion. It denotes a bundle of rights and duties that someone has in relation to certain material or ideal items. 17.2 No, it is a pure juridical construction based on positive law. The positive law defines (1) the scope of objects to which property rights can be assigned, (2) the subjects who can hold property rights, (3) how property rights can be acquired, and (4) the rights and duties, which define the content of the property rights. 17.3 The argumentation of John Locke suffers from a quaternio terminorum fallacy. While a regular syllogism operates with three concepts, in the case of a quaternio terminorum, it operates with 4 concepts. Nevertheless, this remains hidden because two of these concepts share the same expression. 17.4 First generation: liberal rights, second generation: social rights, third generation: collective rights. Collective rights are rights where the holders of the right are not human individuals but human collectives. Collectives can never be a holder of human rights because they are not persons.
vvAnswers to Chapter 18 18.1 The classical definition of the principle of liberty is given in Article 4 of the French Declaration of the Rights of Man and Citizen of 1789. 18.2 The principle refers to freedom of action, not to freedom of will. 18.3 Rules are strict norms. According to a rule, particular factual circumstances give way to concrete legal consequences. Conflicts between rules lead to the invalidity of the conflicting rules unless there is another rule which decides which of the conflicting rules should prevail. Comparatively, principles only present particular interests that are to be taken into consideration if it comes to a conflict with other interests. Conflicts between different interests that are protected by the principle of liberty are to be resolved by seeking a compromise.
409 Do You Still Remember: The Answers
18.4 No, it does not make sense to call the principle of liberty part of supra-positive law. The principle is an element of the rule of law and valid only in the frame of a given positive legal order.
vvAnswers to Chapter 19 19.1 They add nothing but repeat only what already is written in each of the particular human rights, namely that “everybody has the right to …” or “No one shall be treated …”. 19.2 The expression “equal” in “equal human rights” refers to the generality of human rights. Every human person is a bearer of human rights because they are a person and not because they have to be treated equally to other persons. 19.3 The principle of equality refers to the fair sharing of burdens and benefits of cooperation. It is only to be applied in cases of distribution of the results of cooperation among the participants of the respective cooperating community. 19.4 No, there is no such right because human rights protect against a damage to personhood and not against pure insult. Nevertheless, a social atmosphere where it is generally accepted to discriminate against people on grounds of sex, “race,” and the like leads to the weakening of the ability to maintain one’s own personhood. It also leads to a social climate in which it becomes more and more likely that human rights will be violated. Therefore, the state has the duty to ban acts of discrimination in order to avoid such a risky climate.
vvAnswers to Chapter 20 20.1 In the case of a conflict between two or more competing claims, the practical concordance approach demands seeking a compromise by which the conflicting interests have been optimally satisfied. 20.2 Claims on the level of the liberty principle and on the level of the yard of human rights are always relative rights. Their function is to optimize the range of the freedom of action. Therefore, it is possible to restrict this range for the sake of a compromise. 20.3 If the conflict offers the choice between refraining from harming someone by leaving others without
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support or to support someone by harming someone else, it is required to choose the option of the omission. 20.4 A legal norm order must be the only one and it must be complete and consistent in order to ensure that legal conflicts between members of the legal system can always be decided by a court on the basis of the law. Unity, completeness, and consistency are ensured by the fact that the legal order is developed by deduction (from the constitution to the individual legal decision). This effect is at risk if the corpus of human rights has been introduced in the legal system, because this causes the predominance of morality over positive law. The system of moral rules is developed in an inductive manner. It can therefore be incomplete or inconsistent. Therefore, the moral rule of the legal system can lead to legal dilemmas that cannot be decided based on positive law.
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Index A
C
Absoluteness 3, 10, 104, 120, 126, 155, 267, 400, 401 Absolute rights 10, 178, 186, 261, 266, 271, 311, 313, 316, 343, 345, 352 Absolute value 370 Act –– affirmative 130, 335, 390 –– of omission 130, 291, 391 Actions 2, 7, 32, 120, 124, 125, 130, 132, 185, 186, 196, 197, 223, 242, 244, 277, 293, 317, 329–331, 342, 345, 362, 381, 386, 388, 391, 403, 408 African Human Rights Convention 308 Alexy, Robert 342, 351 Althusius, Johannes 287 American Conventions of Human Right 308 Aquina, Thomas 25, 33 Arendt, Hannah 62, 115 Aristotelianism 25, 32 Aristotle 25, 31, 33, 38 Asylum 168, 296, 306, 308–310, 314, 316, 318, 319, 407 Austin, John L 85 Authenticity 81–83, 91, 94–96, 102, 104, 125, 132, 150, 169, 180, 232 Averoes 33
Capability approach 36 Capitalism 278, 288, 407 Cases –– Caroline of Monaco II 384 –– Climate Protection 279, 302 –– Daschner 395 –– “Dobbs v Jackson Women's Health Organization" 388 –– dwarf tossing 67, 71, 401 –– Elfes 348 –– Fine dust 377, 385, 386 –– Greek case 143, 154 –– Ireland v. UK 143, 155 –– Kakaris v. Cyprus 171 –– Katz v. US 207 –– Lochner v. New York 346 –– M.S.S. v. Belgium and Greece 279 –– Muslim headscarf 253–256 –– Riding in the woods 376, 381 –– Right to be forgotten I 384 –– Ritual Slaughter 376, 381 –– Roe v. Wade 386, 388 –– Soering v. UK 270, 319 –– Wackenheim v. France 71 CAT, see Cruel Inhuman or Degrading UN Convention Against Torture 142 Catholicism 71, 225 Charter of the United Nations (UN 68 China 69, 80, 84, 203, 212 Christendom 240, 242, 243, 246 Circle of Deprivation of personhood 149, 150, 157 Civic right 184 Climate change 279, 300, 301 Coing, Helmut 348 Commandments 2, 7, 33, 38, 72, 222, 224, 225, 243, 351 Common property approach 313 Communication rights 176, 178, 179, 185–188, 190, 191, 193, 194, 198, 216, 238, 241, 242, 255, 286, 365, 404, 406 Conscience 3, 26, 40, 41, 52, 59, 66, 75, 76, 117, 124, 129, 134, 135, 154, 156, 204, 222–230, 232, 233, 235, 236, 238, 243, 325, 400, 403, 405
B Baby research 103, 111, 112, 402 Ban on torture 143, 395 Banjul Charter 308, 337 Basic Law 128, 153, 239, 256, 262, 291, 295 Bentham, Jeremy 24, 27 Bigamy 219 Binding power 8, 11, 17, 225 Biographical identity 234 Borderline personality disorder (BPD) 103, 106, 402 Brandeis, Louis D 206 Burka ban 67, 71, 196 BVerfG (Bundesverfassungsgericht) 212, 214, 218, 222, 228, 257, 279, 299, 301, 348, 376, 378, 381, 388, 390
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Index
Conseil d’Etat 71 Constitution –– of Afghanistan 345 –– of Belgium 226 –– of Bosnia and Herzegovina 344 –– of Brandenburg 129 –– of Malawi 129 –– of Prussia 227 –– of the Paulskirche 227 Contractual autonomy 44, 48, 49, 54, 57, 401 Convictions 8, 11, 36, 61, 120, 156, 161, 163, 164, 176, 181–183, 193, 198, 223, 229, 357, 370, 384, 404 Cooperation 34, 46, 57, 58, 61, 177, 185, 186, 235, 238, 282, 290, 300, 343, 357, 362, 367–369, 409 Correspondence 204, 207, 213 Cosmos 25, 32, 80 Cruel inhuman or degrading treatment and punishment 144 Cruelty 142–144, 148, 149, 151, 153, 155–157, 179, 298, 403 Cultural life 277, 281, 286, 384 Cyrus-Cylinder 4
Education 4, 149, 181, 252, 277, 283, 285, 286, 289, 290, 294 Embryo 119, 272, 293 Enlightenment 61, 222, 225–227, 241, 261 Ensemble Theory 67, 73 Epicurus of Athens 24, 27 Equality 56, 57, 132, 184, 226, 243, 302, 306, 312, 313, 334, 344, 362, 379, 409 Equiprimordiality 83, 95–98, 102–105, 107, 110, 114, 116–118, 121, 261, 272 Ethics 27, 278, 288, 292, 407 European Charter for Regional or Minority Languages 336 European Commission of Human Rights 143 European Convention of Human Rights 19 European Court of Human Rights 143 European Union 214, 296, 314, 350 European Union Charter of Fundamental Rights 20, 365, 371 Existence 20, 37, 83, 90, 95, 171, 186, 260–262, 264, 265, 272, 282, 313, 314, 336, 368, 406 Explication 3, 15, 17, 84
D
Facio, Bartolomeo 67, 72 Fair working conditions 277 Falsification 116 Family 9, 11, 32, 66, 75–77, 82, 84, 87, 107, 116, 117, 128, 135, 165, 186, 203, 207, 211–213, 215, 231, 272, 364, 371 Federal Administrative Court 193 Federal Constitutional Court 19, 170, 212, 214, 217, 227, 239, 255, 266, 324, 333, 356, 376, 379 Fichte, Johann Gottlieb 83, 96, 267 Fischer, Gottfried 109 Foot, Philippa 28 Forced marriage 211 Forschner, Maximilian 87 Framework Convention for the Protection of National Minorities 337 France 57, 67, 71, 196, 310 Frankfurt, Harry Gordon 125, 136, 140 Freedom –– of action 74, 120, 125, 132, 185, 302, 325, 332, 342, 343, 345, 348, 349, 352–355, 357, 358, 377, 379–381, 385, 386, 404, 409 –– of assembly 176, 179, 186, 253 –– of association 176, 179 –– from censorship 176, 183 –– of conscience 204, 207, 222, 223, 225, 227–229, 231, 233, 235, 236, 238, 243, 405, 406
Data protection 204, 214 Death penalty 52, 262, 263, 273, 406 Defamation 191, 206 Democracy 34, 177, 184, 189, 196 Democratic society 219 Detention 160–169, 171, 172, 262, 346, 404 Developmental psychology 103, 111, 402 Difference principle 46, 59, 60, 351 Dignity 35, 66–77, 87, 89, 90, 105, 117, 119, 129, 369, 394, 395 Discrimination 307, 335, 363, 364, 368–371, 409 Discrimination Ban 362 Displacements 115, 139, 223, 230–232, 235 Dissociative identity disorder 142, 150 Duty to rescue 292, 307, 320 Dworkin, Ronald 342, 350
E ECHR, see European Convention of Human Rights 144 EComHR, see European Commission of Human Rights 219 Economic wellbeing of the country 216, 218 ECtHR, see European Court of Human Rights 196
F
415 Index
–– of expression 164, 177, 179, 181, 184, 186, 189–191, 194, 195, 226, 240, 253 –– of information 176, 179, 182, 183, 189, 192, 193, 253 –– of others 61 –– of press (media) 51, 183, 184, 377 –– of religion 50, 51, 186, 196, 204, 238–244, 251–254, 256, 257, 335, 382, 405 –– of religious belief 242 –– of spirituality 239, 251, 252 –– of thoughts 176, 181, 191, 195, 197, 241 –– of will 67, 74, 120, 125, 132, 136, 176, 197, 202, 223, 239, 325, 332, 348, 349, 354, 404, 405 Freedom of action 132 Freedom of religion 207 Freedom of will 132 Free will 35–38, 67, 73–75, 82, 93, 108, 110, 113, 120, 121, 132, 136, 149–151, 170, 176, 177, 179, 180, 183, 185, 188, 202, 273, 277, 285, 329, 342, 352, 401, 403 French Declaration of the Rights of Man and Citizen 56, 57, 326, 408
G Generality 3, 9, 83, 95, 102, 105, 116–118, 239, 365, 400, 401, 409 Geneva Refugee Convention (GRC) 310, 318, 407 German 227 German Basic Law (GG) 255 Germany 67, 149, 224, 226, 288, 310, 332, 347, 386, 388 Ghandi, Mohandas Karamchand “Mahatma” 70 Global free movement 311 God 12, 26, 34, 35, 41, 45, 47, 50–53, 61, 62, 72, 73, 76, 146, 222, 224, 225, 243, 249–251, 254, 268, 287, 368, 401 Goffman, Erving 161, 168, 202, 208 Gosepath, Stefan 367 Group-rights 335–337
C–K
Hermeneutic circle 2, 6 Herzog, Roman 239 Heteronomic approach (to human dignity) 67 Hilgendorf, Eric 73 Hitler, Adolf 230 Hobbes, Thomas 44, 47, 49, 53 Home 202, 210, 218 Hospitalization 170 Howard, Rhoda E. 337 Human beings 3, 8–10, 15, 24, 25, 44, 52, 55, 60, 66, 67, 69, 71, 72, 75, 76, 86–87, 92, 93, 110, 119, 121, 127, 140, 147, 148, 249, 267, 287, 290, 313, 363, 367, 387 –– non-personal 120 Human dignity 35, 66–77, 94, 95, 97, 104, 116, 119, 120, 124, 126–128, 131, 139, 140, 170, 196, 206, 212, 244, 271, 280, 292, 338, 342 Human rights 278 –– collective 325, 334, 336, 339 –– core area 217, 219, 377 –– social 277, 280–284, 289, 291, 294, 295 –– yard 198, 216, 219 Hume, David 25, 37, 329, 331 Hume’s law 25, 37, 329
I ICCPR, see International Covenant on Civil and Political Rights 166 ICESCR, see International Covenant on Economic, Social and Cultural Rights 277 Illiberal state 350 Inalienability 10, 52 Incest 218 Individualism 26, 40, 46, 47, 49, 54, 57, 401 Individuality 9 Infinite regress 25, 26, 39, 45, 53, 401 International Covenant on Civil 76 International Covenant on Economic, Social and Cultural Rights (ICESCR) 66, 283, 295 Internet 19, 183, 204, 213, 384 Irrevocability 52 Islam 33, 240
H
J
Habeas Corpus Rights 160, 162–164, 325, 344, 403 Habermas, Jurgen 56, 252 Hate speech 178, 179, 194, 195, 197 Headscarf 255 Health care system 277 Hennette-Vauchez, Stephanie 71
James, William 249 Judaism 242
K Kant, Immanuel 136, 225, 311, 329, 380
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Index
L
O
Labor 278, 281, 287, 288 Landgericht Frankfurt 395 LAO-TSE 251 Legal rights 11, 14, 133, 355, 391 Legal systems 13, 352, 378, 392, 394, 410 Legal theory 57 Liberal state 349, 350 Liberty principle 46, 57, 59, 60, 120, 133, 160, 162, 342, 343, 345, 346, 349, 350, 352, 357, 376, 396, 408 Locke, John 45, 51–53 Luhmann, Niklas 208 Luther, Martin 287
Obligations 6, 11, 74, 125, 126, 135, 139 Occupation theory of property 329 Omissions 130, 166, 280, 289, 297, 320, 378 Ontology 246, 265 Opinions 14, 32, 34, 59, 66, 69, 72–73, 96, 171, 183, 184, 188, 190, 192–194, 196, 227, 317, 351, 357, 367, 384, 404 Orban, Viktor 350 Original position 44, 46, 48, 57–59
M Maclure, Jocelyn 243 Magna Charta Libertatum 346 Maintenance of the authority and impartiality of the judiciary 19, 192, 193 Manetti, Gianozzo 67, 72 Manipulation 132, 176, 177, 180, 185, 286 Marriage 203, 211, 218 Marsilius of Padua 47 Maximilien de Robespierre 262 Maximin principle 46, 58 Meaning of life 25, 32, 38, 39, 243, 288 Member of the human family 10, 76, 82, 84, 128 Mental pain 142, 148, 151 Methodological individualism 26, 41 Mill, John Stuart 24, 27, 30, 348 Moral dilemmas 378, 395, 396 Morality 3, 25, 27, 132, 137, 193, 196, 218, 222, 225, 243, 343, 357 Moral system 394 Moral theory 24 Mortal fear 260, 270, 271
N Narrative identity 234 National security 19, 195 Naturalistic fallacy 25, 26, 37, 40, 52, 324, 329 Natural state 44, 45, 48, 54 Nature 12, 32, 45, 73, 92, 355 Necessity 219 –– in democratic society 196, 216 Neurosis 103 Norm 26, 188, 352 Normative individualism 41, 46, 47 Nussbaum, Martha 25, 36, 37
P Peace of Westphalia 224 Performative contradiction 178, 194 Person 28, 30, 56, 69, 80, 82–85, 87, 91, 93, 104, 108, 110–112, 114, 117, 119, 128, 133, 142, 152, 210, 217, 231, 234, 240, 246, 263, 267, 269, 273, 289, 290, 314, 367, 380, 387, 389 Personal 98 Personal identity 81, 82, 90–92, 95, 104, 108, 115, 267 Personality 69, 205, 233–235, 286 Personhood 83, 98, 111, 112, 117, 119, 127, 130, 133, 138, 139, 143, 147–149, 151, 152, 156, 162, 169, 195, 232, 234, 235 Petitio principia fallacy 260, 268 Philosophy –– analytical 15, 248 –– naturalistic 15 Physical pain 137, 146, 277 Pico Della Mirandola, Giovanni 67, 73 Plato 17 Policy objective 190, 279 Pope Francis 149 Poportionality 358 Post-traumatic stress disorder 108 Practical concordance 376, 377, 409 Presumption of equality thesis 362, 368 Prevention of disorder or crime 19, 189, 216 Price 81, 89, 92 Princess of Monaco 211 Principles 342, 344, 351, 352, 394 Prison village 171, 172 Prisonization. 170 Privacy 166, 189, 204, 206, 207, 210, 211, 213, 215, 217, 218, 383, 388 Private life 202, 205, 207, 211, 214, 384 Process of balancing 37, 320, 343, 351, 352, 354–356, 358, 376, 377, 380 Property 6, 7, 54, 127, 324, 326–332 –– in nuclear power plants 333, 334 Proportionality 196–198, 254, 256, 302, 356, 358
417 Index
Protection of health 19, 195, 216, 218 Protection scope 7, 125, 132, 156, 172, 178, 181, 185, 204, 208, 212, 213, 215, 241, 254, 256, 261, 307, 376, 381, 385, 386 Proto-persons 112, 127, 387 Psychical displacement 114, 402 Public safety 189, 216 Pufendorf, Samuel 222, 225
Q Quaternio terminorum fallacy 330
R Rawls, John 44, 46, 48, 57, 58, 60 Reformation 222, 228, 287 Refoulement ban 307, 318, 319 Relative 271 Religion 53, 151, 204, 222, 224, 226–228, 238–240, 244, 249, 253 Religious dualism 226, 238, 247 Remuneration 277 Repentance 113, 114 Reputation 190, 191, 383 Right 266 –– absolute 261, 271 –– to freedom of movement 160, 172 –– and freedoms of others 216 –– general structure 127 –– to global free movement 306, 310, 314 –– to informational self-determination 19, 214 –– to liberty 60, 163, 350 –– to life 55, 169, 260, 268, 270, 271 –– to marry 211, 215, 364, 371 –– of others 190 –– positive 49, 219, 244 –– to social security 280, 281 –– subjective 6, 7, 44, 295, 299 –– super-positive 12, 13, 212 –– to water 279, 298 Ritual practice 244 Role-identity 202, 203, 206 Romanticism 226 Rousseau, Jean Jacques 45, 53
S Self-defense 391, 392 Shame 103, 112–115, 223, 229–231, 233, 402, 405 Smuts, Jan Christiaan 68 Social 277
L–U
–– contract 44–50, 52–56, 58–62 –– institutions 279, 282, 290, 294, 296, 298 –– integration 205 Sortal 84 South Africa 68 Spaemann, Robert 35 Spirituality 238, 239, 253, 254, 257 State action 348 Statutory reservation 216, 256, 262 Stoa 25, 33, 72, 88 Subsistence minimum 262, 277, 285, 324, 332 Substantive due process 345, 346 Suicide 103, 113, 223, 232, 273 Super-positivity 3, 12, 400 Supreme Court of Israel 395
T Telecommunication 204, 213 Territorial integrity 189 Territorial sovereignty 306, 311, 314 Tertullianus Florens, Quintus 4 Thomasius, Christian 222, 225 Thought experiments 3, 17, 28, 31, 48, 61, 117, 121 Tillich, Paul 115 Torture 52, 62, 110, 136, 143, 146, 152, 155, 157, 160, 169, 270, 314, 319, 335, 338 Total depravity 287 Total institutions 161, 162, 172 Transcendental analysis 3, 17, 118 Transgender people 364 Traumatic stress disorder 103 Treatment –– cruel 142, 152, 156, 157, 270 –– degrading 142, 144–146, 153–155, 161, 298 –– inhuman 142, 144, 153, 155 Triage 292, 293 Trolley problem 28–30 Tugendhat, Ernst 367
U Unavailability 3 Unconditional basic income (UBI) 278, 288 United Nations Educational, Scientific and Cultural Organization (UNESCO) 66, 70, 74 Universal Declaration of Human Rights (UDHR) 2, 66 Universality 3, 11, 16 Universalization 16 Urmson, James 85 US Supreme Court 206, 346 Utilitarianism 24
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V Vaccination 142, 153, 191, 192 Vagueness 18, 310 Value –– absolute 81, 82, 90, 105, 119, 125, 132, 266, 291, 339 –– extrinsic 81, 88, 90, 92 –– intrinsic 81, 88, 93, 120, 287, 288 –– judgment 80, 81, 84–87, 104, 113, 135 –– of life 260, 267 –– relative 88, 91, 118 Vasak, Karel 325, 334 Veil of ignorance 46, 59 Verification 107, 116 Verwaltungsgericht Neustadt 71 Virginia Bill of Rights 4, 52, 261 Volonté de tous 56 Volonte general 45, 56
Von Humboldt, Wilhelm 348 Von Wright, Georg Henrik 85
W Water 151, 218, 231, 298, 358 Weber, Max 238, 252, 287 Williams, Bernard 394 Wolff, Christian 222, 225 Worldview –– profane 238, 245, 248 –– sacral 238, 248 Worship 222, 224, 226, 228, 244 Worth 66, 68, 70, 88, 129, 180, 229, 252
Z Zwingli, Huldrych 287