VII.Contemporary Human Rights Theory
Questions about the foundations of human rights have not stopped to profoundly engage people. The contemporary human rights theory is a place of vivid debate. It draws from the many thoughts in the history of ideas that have been formulated beyond those examples mentioned above. One important consideration is that of why we actually protect human rights. It is often said that human rights are protected by virtue of humanity alone. What does this mean? Is it the agency and personhood of human beings that is foundational in this regard? Are interests and needs central? Is the protection of capabilities, i.e. the factual ability to lead a complete and flourishing life, the source of our rights? Are rights best understood as a political project of the international community? Or, in fact, is human dignity the foundation of human rights? These are important questions and there is currently a lively and demanding discussion around such matters, engaging a huge variety of people across the globe.38
A starting point for solving some of these implied problems may be to formulate three elements that need to be incorporated into any convincing theory of human rights. First, a theory of human rights has to contain a theory of the basic universal human goods which are to be justifiably protected. Human rights do not protect everything, only certain qualified goods, e.g. life, respect for the person, bodily integrity, freedom, and the legitimate equality. Any theory of human rights must account for the importance of these particular goods and, in particular, for the equal importance of these goods for any human being.
Second, a theory of human rights must include a political theory of the social conditions necessary for the enjoyment of these basic universal human goods. It is not always obvious that rights are the best means through which to obtain even unquestionably crucial human goods. There are certainly such goods that cannot be attained through the protection of rights. For example, love is evidently a very important element of human existence, but clearly, a right to love could not ensure that everyone would enjoy this particular element of a fulfilled human life.
Third, normative principles are central. There is no theory of human rights that does not contain such normative principles. Principles of justice are important because they clarify why only a system of equal rights is a legitimate system of rights. In addition, of key relevance are principles of obligatory human solidarity and respect for human beings that, in particular, justify our concern for others; something which is embodied in human rights themselves and in the obligations they entail for our institutions and – ultimately – for all of us.
Justice, solidarity and respect for human persons, equality, and our concern for others are the springs of rights. They are the normative sources at the very foundation of the project of creating a national, regional, and international legal order where human rights in fact matter and are expressed in institutions of democracy, the constitutional state under the rule of law and public international law – one of the more noble aspirations in humanity’s often surprisingly tragic history.
38For an overview see MAHLMANN, Mind and Rights, pp. 80.