Human Rights and Privacy Basic Concepts Is it

Human Rights and Privacy

Basic Concepts • Is it good enough to know the “definition” of a concept or term? • Difference between political philosophy and political science. • Are lawyers and politicians experts on such issues?

• Please list some concepts that are either more basic than or inter-definable with “human rights”.

• Justice, duty, morality, power, liberty, entitlement (授權), equality, fraternity, protection, harm, utility (效益), property, fairness, coercion, interference, obligation, etc.

What Philosophers can Contribute • • • Elucidate Critically examine Revise Contextualize Argue for a position

• Which component is more intuitive, “Human” or “Rights”?

• Is “human” a biological, social, legal or universal concept? • Does it connote an individual or a group? • When did we assume the term to be indifferent to sex or gender?

• What is a right? • How many types of rights are there? • What is the relationship between legal and moral rights?

• Legal rights only make sense in the context of positive laws. • Moral rights are believed to exist just in virtue of the fact that there are humans.

• Right is often explained together with duty. • A person A has a right to x implies that some other persons have a duty to assist A to obtain x or not to deprive A of x. • In most general terms, rights are justified claims to the protection of persons’ salient interests. • Some philosophers use the more abstract concept “dignity” to explain the necessity of upholding rights.

• Wesley Hohfeld (霍菲爾德) introduced 4 senses of “right”: claims, liberties, powers and immunities (豁免權). • Claims rights (索賠權利) are the most important and well-understood. They entail duties and responsibilities. On the other hand, liberties rights only entail freedom or permission for the rights-holder.

? Ought to P not permitted to not P 1. Claim rights: X has right with respect to Y to do P Y has a duty to X not to interfere with X’s doing P. 2. Privilege right: X has privilege with respect to Y to do P Y has no right against X not to do P. 3. Power rights: some right or duty of Y is apt to be created, altered or extinguished by X’s exercise of that power. 4. Immunity rights: Y is disabled from altering X’s legal relations.

Components of Rights Claims • A has right to x against B by virtue of y. • • A: Right-holder (claimant) X: the object of the right B: Respondent of the right (duty-bearer) Y: Justifying ground of the right

Benefit Theory • To have a right is to be the directly intended beneficiary (受益人) of other’s performance of a good-providing duty. • What about the accidental beneficiary of the act?

Choice Theory • To have a right is to be in a justified position to determine by one’s choice how others will act. • Emphasis on inter-personal relationship. • H. L. A. Hart’s (哈特) concern: “What do rights add to our moral vocabulary that could not be accomplished with any other part? ”

• Rights give people control over other people’s freedom. Other people’s freedom depends on my choices if I have a right against them. If we only have the concept of duty, the above doesn’t hold: From the fact that A has a duty to B, it doesn’t entail that B has any control over A’s freedom. The control exercised by rightsholder has to be control of the duty such that it can be claimed or waived verbally. However, the duty-bearer cannot declare the duty waived. That party can only control the duty through performance. • What about the rights of children and animals? Are these cases better explained by the benefit theory?

• We may analyze and understand the nature of rights by examining the 4 items in the formula: A, X, B, Y.

• “X” is the good in the claims of rights. • For example, there are the relatively uncontroversial goods “freedom”, and “wellbeing”. • They are fundamental in the sense that we have already implicitly agreed that each person is entitled to act on his/her own towards achieving certain goals. Consequently, freedom and wellbeing are the necessary conditions for the success of any human action.

Three Levels of Rights • 1 st generation rights: liberties and privileges of citizenship (freedom of speech and religion, and freedom from arbitrary arrest, etc. ). • 2 nd generation rights: socio-economic claims (education, housing, healthcare, employment, etc. ). • 3 rd generation rights: focused on communities (minority language rights, national rights to selfdetermination, rights to environmental integrity, etc. ).

Negative vs. Positive Rights • Negative: non-interference; negative rights never conflict with each other. • Positive: assistance; may conflict with each other and are dependent on resources.

Entitlement • Having rights in virtue of being human. • Assumption of unconditional worth to the existence of each person. • In contrast, merit is differential and has to be earned. • On the fundamental level, there is the egalitarian (平等) assumption that everyone is entitled to the same concern and respect.

Justice • Most people nowadays are more familiar with the concept “justice”; thanks to Michael Sandel’s (桑德爾) famous book/lecture. • http: //www. justiceharvard. org/2011/02/episo de-04/#watch • John Rawls (羅爾斯) famously says that “justice is fairness”. • So, how is justice related to human rights?

• For some, it seems more inclusive and humane to talk about promoting justice than to assert one’s rights. • Relatedly, some have criticized that the emphasis on rights obscures the more fundamental concerns about needs and responsibility. • The point is whether the antagonism between right-holder and duty-bearer is real.

Rawls vs. Nozick • The debate on justice between the two giants in analytic philosophy is legendary. • Understanding this may help us to see the issues about human rights more clearly. • A Theory of Justice 《正義論》 vs. Anarchy, State and Utopia 《無政府、國家與烏托邦 》.

John Rawls • Justice consists in fair treatment of all agents. • Each is to have basic liberties and means of subsistence. Apart from this, differential distribution of goods is allowed so long as the arrangement is based on a fair procedure such that it is to the greatest advantage of the least privileged. • Maximin principle over aggregate or average principle.

Robert Nozick (諾齊克) • Human rights on material need are violation of individual rights to liberties. • Particular private entitlements “fill the space of rights, leaving no room for general rights to be in a certain material condition”. • In other words, compulsory charity and taxation are similarly unfair redistribution of goods because they infringe the rights of the original owners of the goods.

• The “human rights” we are now familiar with may be those that are consequent to the general adoption of the Universal Declaration of Human Rights (世界人權宣言) by UN in 1948. • Although such rights sound universal and natural, their development follows a tortuous course in history and it is often criticized that “human rights” are primarily Western ideas.

• Historically speaking, rights are by-products of laws; in other words, laws confer rights on certain people. • Hence, it was not even assumed that humans are equal (slaves and foreigners are inferior to citizens).

Timeline • Babylon: Hammurabi’s Code (漢摩拉比法典) (1800 BC) • Roman Senate: Law for all people (jus gentium) ( 萬民法)(200 BC) • Magna Carta (大憲章)(1215). • English Bill of rights (權利法案) (1689) • US Constitution (美國憲法) (1789) • Universal Declaration of Human Rights (1948) • International Covenant on Economic, Social and Cultural Rights (1966)

• First World Conference on Human Rights (1968, Teheran) • International Convention on the Elimination of All Forms of Racial Discrimination (1969) • International Covenant on Civil and Political Rights (1976) • International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987) • International Convention on the Rights of the Child (1990)

• International Convention on the Protection of the Rights of All Migrant Workers and their Families (2003) • International Convention on the Rights of Persons with Disabilities (2006) • http: //legal. un. org/avl/ha/humanrights. html

• Codes and laws do not imply the existence of human rights insofar as they are treated as political agreement between restricted parties. • What spurred the development of a universal and all-inclusive concept of rights is the Western development of liberalism (自由主義 ) and individualism (個人主義) in the last 300 years or so.

John Locke (洛克) • Natural rights (自然權利) • In a state of nature, human enjoy a state of liberty. • However, in a society humans are in bondage and in danger. • That is why a government is formed (upon tacit consent (默許) of all members to a social contract) to protect people from harming each other.

Jean-Jacques Rousseau (盧梭) • Social Contract 《社會契約論》 (1762) • General will (公共意志), private will, will of all (全體意志). • A hypothetical transaction: trading natural liberty for civil liberty and property ownership, etc.

Thomas Paine (潘恩) • Rights of Man 《人權論》 (1791) • First hint of globalism and universality: “My country is the world, and my religion is to do good”. • Asserts the existence of the “natural dignity of man”. • Relatedly, the 1776 American Declaration of Independence 《美國獨立宣言》 states: “We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness”.

• In the French Revolution, there was similar emphasis on human rights: “Men are born and remain free and equal in rights … The aim of every political association is the preservation of the natural and inalienable rights of man; these rights are liberty, property, security, and resistance to oppression”.

• We should, however, note that despite the tone of universality, exclusivity was still tacitly assumed: for example, women were recognized to be entitled to the same rights as men only relatively recently. • Mary Wollstonecraft (沃斯通克拉夫特): Vindication of the rights of Woman 《女權辯 護》.

Philosophical Systems • In a bigger context, the development of the concept of rights has been guided by prominent moral theories. • At around the same time, Kantian and Utilitarian ethics were the two competing systems of ethics.

Kantianism (康德主義) • • Deontological ethics (道義論) Emphasis on intention and duty. All moral laws are universalizable. Treat humans as ends, never as means.

Utilitarianism (功利主義) • Proposed by Jeremy Bentham (邊沁) and developed by John Stuart Mill (穆勒). • What is moral is what promotes the highest aggregate of utility: consequentialism (結果主義). • Bentham regards natural rights as “nonsense upon stilts” and that men are simply not born free. • That’s why for him there are only legal rights. • In other words, legal rights are not to be understood as being subject to a higher level of moral scrutiny.

Marxism (馬克思主義) • It might be easily misunderstood that Marxists are by default staunch defenders of human rights. • For Marx, natural rights as understood by Locke, et al. are simply an expression of egoism for members of the privileged class. • If the goal of Marxism is to forge an ideal community without conflicts, it follows that claims of rights would not appear.

• As a result, the real task for a Marxist society is to liberate people from religion, property and law. • Marx wrote that “the political emancipators go so far as to reduce citizenship, and the political community, to a mere means for maintaining these so-called rights of man”.

Problems and Controversies

Is the Concept of Rights too Egoistic (利己)? • Is the concept of rights necessarily interestdriven and individually based? • If so, why is it bad? • How can rights talk be adjusted to accommodate a sense of communal (公社) morality?

Chinese Context • Traditional Chinese values are family-oriented. • Will rights claims cause disharmony among family members? • From a communitarian point of view (社群主 義) the assumption that each person lives a life on his/her own terms is a myth. • Is the upholding of social hierarchy always in conflict with individual rights?

• It may also be claimed that talks of rights imply debts. But this does not sound right in the Chinese ears: no parents would welcome the idea that they owe to their children or that their children have claims rights on them • In fact, if the debt metaphor holds, it is the reverse: children naturally owe to their parents.

Symmetry of Rights • Do you allow that for some important rights, the relationship between the right-holder and the duty-bearer is asymmetrical?

Amartya Sen (阿馬蒂亞·森) • “To see Asian history in terms of a narrow category of authoritarian values does little justice to the rich varieties of thought in Asian intellectual traditions. Dubious history does nothing to vindicate dubious politics. ” • The politics of rights is a means to achieve economic dominance. • US Department of State’s Country Reports on Human Rights Practices leaves US out!

State and Paternalism (父愛主義) • Just as children’s rights are sometimes usurped by the parents for their own good, can a citizen’s right be likewise violated? • Do the rights of the majority always trump the rights of an individual?

• In 2000, Madeleine Albright (奧爾布賴特) (US Secretary of State) said: “China has signed the International Covenant on Civil and Political Rights. Unfortunately, its official policies have always fallen well short of these standards, and deteriorated markedly this past year”.

Demandingness (苛求) • Is it too demanding for the duty-bearer? • For example, a person A’s right to not being killed entails my duty not to kill her, which is easily complied. However, does it also entail my doing whatever in my power to prevent A’s being killed by others? • Furthermore, if the emphasis on duty is unchecked, such a society is in fact the imagined communal state where everyone voluntarily gives and is reluctant to take.

Moral Distance (道德距離) • Why does it seem that my duty to assist a starving African is less than that to assist the household matters of my neighbor? • Is there a sphere of influence of rights and duties? • If so, does it follow the hierarchy of family, friend, community, country and race, etc. ?

Where is Compassion? • Richard Rorty (羅蒂) questions the motivation for putting human rights at the core of our societal values and advises us instead to “concentrate our energies on manipulating sentiments, on sentimental education”.

Mencius • Rorty’s view strikes a similar chord with Confucianism (儒家). • Mengzi (孟子) thinks that humans have four innate sentiments (siduan 四端): compassion (惻 隱之心), aversion to shame (羞惡之心), respect for courtesy and modesty (辭讓之心) and discernment for right and wrong (是非之心). • That is why moral education is not rule learning but cultivation and development of the emotional seeds.

• In other words, reason (理) and rightness (義) should not be based on an impartial view of duty and claim. Otherwise, the Confucian ideals will collapse into Legalism (法家).

Empowerment (授權) • Judges cannot strike down laws as incompatible with human rights. • Countries alleged to have violated human rights need not respond to UN decision, if any. • It is often claimed that human rights are used by the great powers to achieve economic control in developing countries.

Pluralism (多元主義) • Can difference in values and practices justify substantially different conceptions of human rights?

Particular Cases • It is sometimes difficult to judge in individual situations how to interpret the claims of human rights. • Consider: abortion, just war, economic sanction, death penalty, torture of terrorists, etc.

Proportionate Limitations on Human Rights • Limitation on human rights may be allowed if we have gone through the following: • Is there a legitimate aim to the interference? • Is the interference prescribed by a clear and accessible law? • Is the interference proportionate to the identified legitimate aim and necessary in a democratic society?

Privacy

• It is not as clear-cut a concept as we may think. • Privacy is not a traditional constitutional right. • The limit and scope of the private: the intersection between the public and the private spheres. • Private: body-images, personal activities, personal data, etc.

• In history, being in private might not be a good thing. Hannah Arendt (鄂蘭) says that privacy “meant literally a state of being deprived of something … A man who lived only a private life, who like the slave was not permitted to enter the public realm … was not fully human”. • Of course she was mainly referring to the Roman culture of the public where the life in the res publica (public arena) was truly honorable.

• In the traditional Chinese context, it seems that the subject of privacy is the family rather than the individuals. • It follows that it is primarily a matter of where to draw the boundary between public and private rather than a question of how to uphold privacy rights.

• The right to be let alone • Spatial/locational privacy • Decisional privacy

• 1881: A complaint by woman that she had been observed against her will during childbirth in USA. • 1849: An English court's injunction for breach of confidence restraining distribution of etchings of Prince Albert and Queen Victoria. • 1890: Warren (沃倫) and Brandeis (布蘭代斯) explicated that the common law protected the right of privacy.

• The initial formulation of the scope of rights to privacy are protection of honour, reputation, and correspondence.

• The idea that intrusion of privacy is a harm can be attributed to Mill’s “harm principle”: “the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others”.

• How should we define intrusion? • Is it always state vs. the individual?

Prison Metaphor • Bentham’s panopticon (圓形監獄) • The centrally located all-seeing eye • If those who are imprisoned lose their rights to privacy, are the web-surfers similarly constrained just because they have consented to participate in a cyberspace that is made possible by a technological all-seeing eye?

Personal Identity • We need to have personal identity in order to be citizen or to travel around. • Does it make sense to demand complete anonymity in the contemporary condition? • Nowadays, the rights to privacy have extended from the desire to be left alone to the fear of stolen personal identity.

• Can you think of any positive “use” of privacy?

• • • Alan Westin (威斯汀): 1. increase personal autonomy 2. allows emotional release 3. allows self-evaluation 4. creates environment for limited communication

5 Domains of Privacy • 1. Freedom from observation

• 2. Restriction of images or information that might be embarrassing and prejudicial to a person’s interests.

• 3. Freedom of communicating with others without being monitored by a third party.

• 4. Protection of the physical and mental wellbeing of individuals.

• 5. The fostering of development of personality free from control.

Dissociation • Exercise of human rights and protection of privacy need not go hand-in-hand. • For example, if the unit of privacy is a family, then the state may not interfere with how the parents teach their children. • You can also give your own case where the respect for privacy involves a dilemma of rights.

Positive Obligations • Government’s obligations as giving rise to duties to protect individuals even from attacks on their rights by private individuals and other non-state entities.

Case • In 2001, there was a complaint against the noise of the Heathrow airport (希思羅機場) as invading the privacy of the residents nearby. Finally the court judged that the status quo maintains a correct balance between the rights of the residents and the rights of others to travel and pursue competitive commercial operations.

Conflicts • Rights to know (media infringement of privacy) • Rights to health (incarceration of bird flu contact) • Rights to security (stripe searching at the airport)

• How can we reconceive the opposition between the public and the private in order to see the right to privacy not at odds with other rights?

Appendix

The Universal Declaration of Human Rights • 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, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, 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 it is essential to promote the development of friendly relations between nations, 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 the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom, Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms, Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge, Now, therefore, The General Assembly, Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

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.

Article 2 • Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3 • Everyone has the right to life, liberty and security of person.

Article 4 • No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5 • No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6 • Everyone has the right to recognition everywhere as a person before the law.

Article 7 • All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8 • Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9 • No one shall be subjected to arbitrary arrest, detention or exile.

Article 10 • Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 12 • No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 30 • Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

Selected References • Donnelly, J. The Concept of Human Rights (London: Croom Helm, 1985). • Dworkin, R. Taking Rights Seriously (London: Duckworth, 1978). • Nozick, R. Anarchy, State and Utopia (NY: Basic Books, 1974). • Rawls, J. A Theory of Justice (Cambridge, MA. : Harvard, 1971). • Sen, A. “Rights and agency”, Philosophy and Public Affairs, 11 (1982), 3 -39.