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The tendency to find solutions to a variety of social and political
problems from within the confines of the human rights paradigm is not new
yet it is surprising that such an approach still holds currency. Given
the appalling record of human rights in offering any degree of care and
protection to vulnerable people one might be excused for thinking that
this failed philosophy had been conveniently consigned to history. But in
her recent short article in the British Medical Journal,(1) Professor
Jennifer Leaning revisits the notion of human rights and sees it as
providing a moral and ethical basis from which physicians in particular
can respond to human pain and suffering in an increasingly global
framework.
To suggest that human rights has failed is to beg the question of
what it is that we want from such a concept. Human rights we might posit
as a moral map by which we discover how we ought to treat others with due
deference to their unique moral properties as human beings. Borrowing
from Kant’s ‘categorical imperative’ we might say for example that there
is a moral demand to always treat rational individuals in a manner
consistent with their innate rationality.(2) Or we might suggest that it
provides the ground rules (the ‘rules of the game’ as it were) for the
construction of a liberal democratic society. Arguing from this
perspective one might claim that to be either ‘liberal’ or ‘democratic’ a
society must first have some commitment to human rights, the civil and
political variety in particular, and that any society which does not
incorporate such ‘fundamental freedoms’ has no business in calling itself
democratic. Yet I think that when people invoke the idea of human rights
they have something else in mind. Human rights, if they are to do
anything substantial, are surely there to give voice to the voiceless; to
protect the weak, the powerless, the homeless, the disenfranchised, what I
call by the general term ‘the vulnerable’.(3)
And it seems perfectly clear that whatever else human rights can do
they do not protect the vulnerable in whatever form such vulnerability
emerges.(4) Leaning herself identifies the great human rights tragedies
of recent years, in particular the conflicts in the former Yugoslavia, the
mass genocide in Rwanda and of course Chechnya. To this we might add the
names of those who have become synonymous with human rights abuses:
Stalin, Hitler, Pol Pot, Amin and, for good measure (and political
balance), we might wish to cite the infamous death squads of Central and
South America often aided and abetted (sadly) by the world’s most powerful
liberal democracy. If we are looking to human rights to prevent the
destruction of vulnerable peoples then we will be disappointed. In this
regard human rights have been relegated to nothing more than a footnote to
the suffering of millions; impotent to prevent slaughter, terror, rape and
human degradation on a grand scale they are reduced to commissions of
inquiry after the tyrants and murderers have had their day.
But why have human rights failed the vulnerable? Leaning herself
alludes to one explanation when she says that ‘human rights establishes
the aspirational definitions of the protections people can claim from the
state…’.(emphasis added) Human rights are indeed often referred to in the
Hohfeldian sense as ‘claim rights’, that is they are active claims that
one makes in regard to one’s own particular interests.(5) Thus people
assert, or demand, or declare their right to be treated in particular
ways. The problem is though, what happens to those who cannot act in this
manner; what happens to the weak, the powerless, the homeless, those
without a social, political and economic voice? Such people are all too
often excluded from the rights debate and forced to rely on the good
offices of others to act for them. And this powerfully undercuts the
rights paradigm for the paradigm itself is based on the assertive,
articulate, individual who actively makes self interest claims upon
others. We do not define and articulate the rights of others because this
smacks of paternalism. Men, for example, do not define the rights of
women and whites do not define the rights of non-whites. People define
and assert their own rights, but those who cannot act in this way will
find little comfort from human rights, or, more crucially, they will find
themselves only the beneficiaries of rights awarded them by others more
powerful.
Another reason for the failure of rights is that the concept cannot
overcome the impediments arising from the political framework within which
it seeks to operate. Ronald Dworkin once suggested that human rights be
regarded as ‘trumps’ over all other issues of politics and policy. Yet
what constitutes human rights, how we prioritise them, and the
consequences for those who ignore them in both the domestic and the
international arena is very much the stuff of politics and policy.(6)
Consider what rights are actually regarded as human rights. Or, and more
to the point, consider the political construction of that most powerful of
rights bodies the United Nations. Whilst this body tends to reflect the
sympathies and sentiments of western liberal democracies we feel
comfortable in accepting its view of human rights. But what if the United
Nations was dominated by Islamic fundamentalist states or hard line
communist states, would we be so eager to embrace its view of human
rights?
I said earlier that human rights might be regarded as a form of
‘moral map’ that illuminates how we ought to treat others. Whilst this
may be so we are nevertheless entitled to ask, perhaps rather
impertinently, ‘do we really need such a map?’ If we had no notion of
rights (human or otherwise) within our lexicon would we be unable to make
moral judgements about how to act toward others? Would we exist in a
moral vacuum without any ability to embrace ethics, or the ‘oughts’ that
go toward making up a moral life, or to engage in debate, as Professor
Leaning puts it, ‘…on suffering and human values’? I think not. And this
leads me to my final point.
Professor Leaning says that ‘good intentions are not enough’ and in
this she is right. But the question is: what relevance do statements on
human rights have for physicians? The short answer is ‘none at all’.
This is not to say that the ends sought by the advocates of human rights
are not laudable. Indeed they are. But the philosophy is largely
irrelevant for the way that physicians see the world, as well as being
largely impotent to protect those who are vulnerable as I have briefly
referred to above. More importantly physicians are no doubt aware of a
strong moral and ethical tradition, beginning at least with Aristotle and
Hippocrates, that already exists and binds them in a moral, ethical and I
believe an emotional and psychological way to their patients. The duties
of the physician are already clear and the grafting onto this notion of
duty the failed (and highly politicised) notion of human rights provides
no great advantage either for physicians or those who seek their care and
protection.
Anthony P. Butcher
Department of History and Politics,
University of Wollongong,
Wollongong, New South Wales
Australia
1. Leaning, J, ‘Health and Human Rights’ British Medical Journal, 16
June 2001: 1435-1436.
2. Kant, I., The Metaphysics of Morals, translated and edited by Mary
Gregor, Cambridge, Cambridge University Press, 1996.
3. Butcher, Anthony P., ‘Human Rights and the Vulnerable in Our
Midst’ Quadrant, January-February 2001: 24-27.
4. Butcher, Anthony P., ‘The Relative Irrelevance of Human Rights for
the Care and Protection of the Mentally Ill’ Australian Journal of
Political Science, Vol. 35, No. 1, March 2000: 85-97.
5. Hohfeld, W. N., Fundamental Legal Conceptions as Applied in
Judicial Reasoning, London, 1964.
6. Dworkin, R. Taking Rights Seriously, Cambridge, Mass., 1977.
Competing interests:
No competing interests
03 July 2001
Anthony P Butcher
PhD Candidate
University of Wollongong, Wollongong, New South Wales, Australia.
The death penalty is sanctioned by the Author of life- God Himself in
the Scriptures of the Old Testament to emphasise the sanctity of life and
not a few doctors agree with those states in the USA who use it-and some
must be involved in it's execution!
Health and Human Rights Revisited: A Response to Professor Leaning
The tendency to find solutions to a variety of social and political
problems from within the confines of the human rights paradigm is not new
yet it is surprising that such an approach still holds currency. Given
the appalling record of human rights in offering any degree of care and
protection to vulnerable people one might be excused for thinking that
this failed philosophy had been conveniently consigned to history. But in
her recent short article in the British Medical Journal,(1) Professor
Jennifer Leaning revisits the notion of human rights and sees it as
providing a moral and ethical basis from which physicians in particular
can respond to human pain and suffering in an increasingly global
framework.
To suggest that human rights has failed is to beg the question of
what it is that we want from such a concept. Human rights we might posit
as a moral map by which we discover how we ought to treat others with due
deference to their unique moral properties as human beings. Borrowing
from Kant’s ‘categorical imperative’ we might say for example that there
is a moral demand to always treat rational individuals in a manner
consistent with their innate rationality.(2) Or we might suggest that it
provides the ground rules (the ‘rules of the game’ as it were) for the
construction of a liberal democratic society. Arguing from this
perspective one might claim that to be either ‘liberal’ or ‘democratic’ a
society must first have some commitment to human rights, the civil and
political variety in particular, and that any society which does not
incorporate such ‘fundamental freedoms’ has no business in calling itself
democratic. Yet I think that when people invoke the idea of human rights
they have something else in mind. Human rights, if they are to do
anything substantial, are surely there to give voice to the voiceless; to
protect the weak, the powerless, the homeless, the disenfranchised, what I
call by the general term ‘the vulnerable’.(3)
And it seems perfectly clear that whatever else human rights can do
they do not protect the vulnerable in whatever form such vulnerability
emerges.(4) Leaning herself identifies the great human rights tragedies
of recent years, in particular the conflicts in the former Yugoslavia, the
mass genocide in Rwanda and of course Chechnya. To this we might add the
names of those who have become synonymous with human rights abuses:
Stalin, Hitler, Pol Pot, Amin and, for good measure (and political
balance), we might wish to cite the infamous death squads of Central and
South America often aided and abetted (sadly) by the world’s most powerful
liberal democracy. If we are looking to human rights to prevent the
destruction of vulnerable peoples then we will be disappointed. In this
regard human rights have been relegated to nothing more than a footnote to
the suffering of millions; impotent to prevent slaughter, terror, rape and
human degradation on a grand scale they are reduced to commissions of
inquiry after the tyrants and murderers have had their day.
But why have human rights failed the vulnerable? Leaning herself
alludes to one explanation when she says that ‘human rights establishes
the aspirational definitions of the protections people can claim from the
state…’.(emphasis added) Human rights are indeed often referred to in the
Hohfeldian sense as ‘claim rights’, that is they are active claims that
one makes in regard to one’s own particular interests.(5) Thus people
assert, or demand, or declare their right to be treated in particular
ways. The problem is though, what happens to those who cannot act in this
manner; what happens to the weak, the powerless, the homeless, those
without a social, political and economic voice? Such people are all too
often excluded from the rights debate and forced to rely on the good
offices of others to act for them. And this powerfully undercuts the
rights paradigm for the paradigm itself is based on the assertive,
articulate, individual who actively makes self interest claims upon
others. We do not define and articulate the rights of others because this
smacks of paternalism. Men, for example, do not define the rights of
women and whites do not define the rights of non-whites. People define
and assert their own rights, but those who cannot act in this way will
find little comfort from human rights, or, more crucially, they will find
themselves only the beneficiaries of rights awarded them by others more
powerful.
Another reason for the failure of rights is that the concept cannot
overcome the impediments arising from the political framework within which
it seeks to operate. Ronald Dworkin once suggested that human rights be
regarded as ‘trumps’ over all other issues of politics and policy. Yet
what constitutes human rights, how we prioritise them, and the
consequences for those who ignore them in both the domestic and the
international arena is very much the stuff of politics and policy.(6)
Consider what rights are actually regarded as human rights. Or, and more
to the point, consider the political construction of that most powerful of
rights bodies the United Nations. Whilst this body tends to reflect the
sympathies and sentiments of western liberal democracies we feel
comfortable in accepting its view of human rights. But what if the United
Nations was dominated by Islamic fundamentalist states or hard line
communist states, would we be so eager to embrace its view of human
rights?
I said earlier that human rights might be regarded as a form of
‘moral map’ that illuminates how we ought to treat others. Whilst this
may be so we are nevertheless entitled to ask, perhaps rather
impertinently, ‘do we really need such a map?’ If we had no notion of
rights (human or otherwise) within our lexicon would we be unable to make
moral judgements about how to act toward others? Would we exist in a
moral vacuum without any ability to embrace ethics, or the ‘oughts’ that
go toward making up a moral life, or to engage in debate, as Professor
Leaning puts it, ‘…on suffering and human values’? I think not. And this
leads me to my final point.
Professor Leaning says that ‘good intentions are not enough’ and in
this she is right. But the question is: what relevance do statements on
human rights have for physicians? The short answer is ‘none at all’.
This is not to say that the ends sought by the advocates of human rights
are not laudable. Indeed they are. But the philosophy is largely
irrelevant for the way that physicians see the world, as well as being
largely impotent to protect those who are vulnerable as I have briefly
referred to above. More importantly physicians are no doubt aware of a
strong moral and ethical tradition, beginning at least with Aristotle and
Hippocrates, that already exists and binds them in a moral, ethical and I
believe an emotional and psychological way to their patients. The duties
of the physician are already clear and the grafting onto this notion of
duty the failed (and highly politicised) notion of human rights provides
no great advantage either for physicians or those who seek their care and
protection.
Anthony P. Butcher
Department of History and Politics,
University of Wollongong,
Wollongong, New South Wales
Australia
(Tonebut@bigpond.com.au)
1. Leaning, J, ‘Health and Human Rights’ British Medical Journal, 16
June 2001: 1435-1436.
2. Kant, I., The Metaphysics of Morals, translated and edited by Mary
Gregor, Cambridge, Cambridge University Press, 1996.
3. Butcher, Anthony P., ‘Human Rights and the Vulnerable in Our
Midst’ Quadrant, January-February 2001: 24-27.
4. Butcher, Anthony P., ‘The Relative Irrelevance of Human Rights for
the Care and Protection of the Mentally Ill’ Australian Journal of
Political Science, Vol. 35, No. 1, March 2000: 85-97.
5. Hohfeld, W. N., Fundamental Legal Conceptions as Applied in
Judicial Reasoning, London, 1964.
6. Dworkin, R. Taking Rights Seriously, Cambridge, Mass., 1977.
Competing interests: No competing interests