We are accustomed these days to rights talk. Rights have a significant degree of authority behind them. The European Convention of Human Rights is a foundational document ratified by a number of European countries. The concept of rights contained therein appears to command the assent of a number of Western democracies. Not only that, when an appeal to some human right (or the violation of such a right) is made it is often capable of putting to rest most social and political discussions.
Nevertheless, there remains some confusion over the nature of human rights, and whilst public discussions may often appeal to rights and rights talk, such discussions are rarely ever principled or follow a logical train of thought. Not only that, significant public voices addressing the issue of rights in relation to abortion, including representatives of Amnesty international, have stated that one is only a subject of rights if such rights are afforded to the individual by some governing body. Hence, if, on their reading, the unborn are not afforded legal protection, then they are not subject to rights and human rights do not apply to them.
This confusion quickly clears up when we actually read the human rights documents, that is, the Universal Declaration of Human Rights and the European Convention on Human Rights. The UDHR is quite clear in linking the ‘equal and inalienable rights of all members of the human family’ with human dignity, and the ECHR follows the UDHR in listing those rights that pertain to all humans in virtue of their dignity.
It is human dignity that grounds rights, and human dignity is something that one possesses not in virtue of being a member of a privileged group, such as all those who have been born, or some positive law granting one legal entitlements; rather, human dignity is something one has in virtue of being human. This dignity flows from human nature, and it does so precisely because human nature is rational nature. Human beings are the kind of things that are rational, whether they exercise their rationality or not. Hence they are the kinds of things capable of determining their own ends (regardless of whether they do so or not), and as so capable they themselves must not be the instrument for anybody else’s end; for that would be to treat them as less than human. Hence every human being is to be treated in light of the dignity that they have; regardless of the legal recognition or otherwise of such dignity. Indeed, it is precisely because humans have such dignity independently of state recognition that one can criticise the state or its authorities for abuses of such dignity.
Rights primarily flow from dignity insofar as human beings must be treated in such a way that their dignity is not violated. This fundamentally entails not subjecting their lives to the will of others, in which case we have a right to life, a right not to be tortured, not to be enslaved or put into forced labour. Flowing from this freedom from being subject to the will of others humans have a right to liberty and security, a fair trial when accused, and a legal framework within which punitive measures are exercised. Being free from the will of others all humans have a right to a private and family life, freedom of thought, conscience and religion, freedom of expression, assembly, and association, and the right to marry.
It is clear then that beginning from the principle of human dignity we draw out these various rights all of which revolve around dignity; failure to respect these rights is a failure to treat humans as fully human. Effectively what these rights ensure are the conditions by which we can live lives in accord with our human nature. In focusing human rights on human dignity, the drafters of the human rights documents did not envisage human rights as things conditional upon state or legal recognition. At the time these documents were drafted Europe had just emerged from a second war which saw some serious human rights abuses, and it is doubtless that having states sign up to these rights and ensure compliance therewith is a good thing. But compliance or otherwise with these human rights by a state does not entail that one is not subject to these rights. Hence, regardless of whether or not a state grants to humans or a certain class of humans, such as the unborn, these rights, those human beings nevertheless have these rights. Any sort of rights talk which classifies humans in one way or another and attributes rights to one class and not to another is absurd and contrary to the nature of human rights which all humans have in virtue of being human.
Dr Gaven Kerr