Human rights have always been contested. In particular, critics have often denounced their lack of a theoretical foundation, but human rights can be theoretically legitimized, albeit in an indirect way.
However, first: What are human rights? They are rights for all human beings, regardless of their biographical backgrounds and affiliations. One main function is to protect citizens from discrimination and abuse of political power; there are also social and economic human rights.
All of those rights invoke a political order in which people can equally prosper and enjoy mutual respect. It is an ideal world that is envisaged by advocates of human rights, but it is not a utopian one.
Human rights are laid down in international documents to be ratified by governments. The core document in their modern history is the Universal Declaration of Human Rights (UDHR), adopted on Dec. 10, 1948. Worldwide, Human Rights Day is celebrated on that day.
Modern human rights consist of a triangular relationship involving politics, legislation, and morality. Evidently, human rights need to be integrated into national legislations to guarantee their implementation; this move also indicates political self-restraint vis-a-vis citizens.
However, less evident is the moral dimension of human rights; moral systems merely regulate private affairs among individuals under political or legal regulations. So: Where is that moral dimension?
Governments that respect human rights also implicitly adopt a moral concept based on the freedom of individuals. The codified equivalent can be found in Article 1 of the UDHR: “All human beings are born free and equal in dignity and rights.”
All following specifications of human rights are derived from this first article.
Why should we make such an unprovable assumption as stipulated in Article 1? Why should we “believe” in the dignity of all human beings? And why is it of moral value?
Dignity — or “freedom,” in moral language — is a vague concept used in the declaration. The vagueness is intended; it reflects the theoretical difficulty that a desirable exhaustive definition of what human beings truly “are” when seeking their inherent rights is not available. Individuals cannot be defined in principle, neither in metaphysical terms nor in social or cultural categories that would determine humans’ “true” nature.
This is why “freedom” and “dignity” have a paradoxical function in our context: They define an individual’s indefinability. What individuals truly “are” must remain open, to be filled in only by one’s own ideas. Such existential entitlement must be politically preserved under all circumstances; it is an ideal that moral systems based on freedom pursue. At this point moral freedom and human rights converge.
Certainly, we are not only private individuals, but also political and cultural beings embedded in a given social environment we share with others.
However, can a particular social setting determine our thoughts and actions? If that were so, this would mean that often self-appointed political, social or cultural leaders could be easily tempted to become masters of our personas; communism, for instance, works in this way.
However, there is an inalienable surplus value in all individuals, impossible to categorize and to define from outside, but entitling us to resist attempts that try to absorb our self into something supposedly higher, grander and truer than our personas.
Promoting so-called “Asian values” is such an attempt launched by authoritarian governments of this region a few decades ago to offer an alternative to an allegedly Western (read: individualistic) concept of human rights. They rank individuals at the bottom of a value hierarchy, trumped by family, community and nation in that order. It is easy to guess who profits from such “Asian” values — and who pays the price.
Asian-value ideology can be detected in today’s laws when governments feel responsible for the private — moral — behavior of their people. Adultery, for instance, is still punishable in Taiwan according to the Criminal Code. A 2002 Judicial Yuan interpretation of Criminal Code Article No. 239 — valid to this day — holds that sexual “freedom is ... legally protected only if it is not detrimental to the social order or public interest.”
Here we have an apt example of “Asian values”: political power interfering via laws with the private lives of citizens in the name of the “public interest.” I wonder why one would have an interest in somebody’s sexual life apart from those involved.
From a human rights’ point of view this law unnecessarily restricts individual freedom — it contradicts the spirit of Article 1 of the UDHR; it is immoral.
However, tradition and religion often impose ways of life on individuals by ignoring their dignity or freedom. As I am writing these lines, influential civic groups in Taiwan are trying to prevent legal amendments allowing same-sex marriage. They mostly do so either in the name of “traditional family values” or in the name of mainly Christian religion, often by naively referring to selected passages from the Bible.
Love between two people is an exclusive matter between them; their marriage would not affect anybody else’s freedom. The decision to marry is, therefore, a moral case, hence an expression of individual freedom to be — at least — tolerated by the public, as well as supported by political institutions.
Incidentally, traditional family values and a literal interpretation of the Bible are obviously wrong candidates for making the world a better place: the former cement unfair social hierarchies for no comprehensible reason, and the latter — the “Good Book” — demands unambiguously in Leviticus 20:13 that “if a man lies with a male as he lies with a woman, both of them have committed an abomination. They shall surely be put to death. Their blood shall be upon them.”
It should be noted that in several speeches he gave in Taiwan a few weeks ago, Wolfgang Huber, a former bishop of the Evangelical Church of Berlin-Brandenburg and an eminent academic on ethical issues who also advises the German government, quite convincingly argued in favor of same-sex marriage for theological reasons.
In stark contrast to such paternalistic mentalities, modern human rights are built on the moral idea that free individuals must be the ultimate concern of political, social or cultural entities.
Such moral intuition was elaborated as an ethical system by German philosopher Immanuel Kant more than two centuries ago; it is influential to this day. He defends the moral right to a life one wishes to live as long it can coexist with the freedom of others.
Human beings, Kant wrote, should never be used by others as means to other ends, but always treated as ends in themselves.
Translated into the political and legal context of human rights this would mean that laws would have to be designed so as to enable individuals a self-determined life. Whatever laws do not forbid is allowed; this law-free zone is exclusively the ground for moral — or immoral — behavior.
Human rights sit, as it were, on top of the laws as their codified moral conscience, making sure that their provisions optimize the freedom of the people for whom they are made. The rest is morality — a private matter.
Nobody can reasonably wish that individuals should not be free in this sense. Such a wish would be either self-contradictory or authoritarian; it would be immoral in any case.
Herbert Hanreich is an assistant professor at I-Shou University in Kaohsiung.
Source: Taipei Times - Editorials 2016/11/30
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