Philosophical Basis Flashcards
(27 cards)
What is the foundational concept upon which both individual human rights and communitarian values are built?
Human dignity is the foundational concept. In African thought, dignity is often thought to inhere in our souls, life-force, communal nature, or intelligence. However, for the purposes of grounding a theory of human rights, it is most promising to conceive of dignity as our capacity for community. This concept of dignity is used to bridge individual rights with the communal values of sub-Saharan Africa. It is a concept that provides reason to doubt claims that human rights are incompatible with African values.
How is ‘community’ defined, particularly within the context of African legal theory?
• Identity: A sense of belonging, shared way of life, seeing oneself as part of a “we”, engaging in joint projects, and emotional investment in the group. The opposite of identity is people defining themselves in opposition to one another and seeking to undermine one another’s ends.
• Solidarity: Acting for the sake of others, exhibiting friendliness and love in a broad sense. This can include actions such as anonymous donations to charity.
According to Metz, what is the basis of human dignity, and how does this connect to the concept of community?
Metz argues that human dignity is based on our capacity for community, not on actually being in community. He specifies that this capacity refers to the essential ability to commune with others and includes the biological capacity to think of oneself as bound up with others and to act for their sake.
By grounding dignity in the capacity for community, Metz ensures that all individuals possess inherent dignity, even those who might be isolated or not actively participating in a community. This capacity, in turn, forms the basis for the recognition of human rights.
In Metz’s view, how does the concept of respect relate to dignity and community?
Respect is the crucial action stemming from the recognition of human dignity. It entails honoring our special capacity for community, specifically, respecting people because of their capacity for community qua identity and solidarity. This involves protecting, enabling, and otherwise expressing respect for people’s ability to commune. The failure to treat people as having a dignity is equivalent to degrading that capacity.
How are human rights understood as duties, and what role does the state play in this understanding?
Human rights are understood as duties that states and other agents have to protect, enable, and otherwise express respect for people’s ability to commune. The state has a duty to organize society so that people are not disposed to violate human rights, to use defensive force to ward off immediate threats of violation, to censure and punish violators, and to facilitate compensation for victims.
According to Ake, why are Western human rights concepts inapplicable to the African context?
Ake critiques Western human rights for being rooted in an individualistic worldview that is incompatible with the communitarian values of traditional African societies. He argues that:
• Western human rights emphasize individual rights, while African societies prioritize group rights.
• Western frameworks overemphasize civil and political liberties, while socio-economic rights are more relevant in the African context.
• “Liberal” rights are often unrealistic for many Africans due to a lack of resources.
How does Ake prioritize group rights in the African context?
Ake maintains that for rights to “make any sense at all in the African context” they must be ones of a group. He suggests that rights should be extended to groups, not just individuals, because African cultures are characterized by a sense of belonging to a collective, not just individual persons.
According to Ake, why are socio-economic rights more important than civil and political rights in Africa?
Ake argues that for most Africans, basic socio-economic rights (like access to food, healthcare, and shelter) are more pressing than civil and political rights. He believes that “liberal” rights are only valuable when people have their basic needs met.
According to Metz, how can individual rights be compatible with communitarian values?
Metz argues that recognizing individual rights is essential to respect people’s dignity as beings capable of community. It doesn’t entail an “atomized” or “separate” view but acknowledges that people’s interests can sometimes be separate from the greater good. He maintains that the best way to respond to the African value of community is not to treat individuals merely as a means to certain social ends, but rather to respect them as dignified because they are capable of community.
How does Metz address group rights, and does he include them in his theory?
Metz does not believe in group rights as distinct from individual rights. Instead, he argues that all rights are grounded in the dignity of individuals because of their capacity for community. He suggests that apparent ‘group’ rights can be understood as rights that are held by individuals who are in a communal relationship.
What kind of communitarianism does Metz embrace, and how does it relate to his view of human rights?
Metz embraces a moderate form of communitarianism, not an extreme one. He believes that his articulation of sub-Saharan values, which is based on the single fundamental value of communal nature, is consistent with individual rights. He argues that his approach differs from an extreme communitarianism that would prescribe whichever actions maximize cohesion, or that would prioritize groups as the ultimate bearers of moral claims. Instead, his approach is based on a commitment to respecting the dignity of people as capable of community.
What is the Banjul Charter and what is its significance in relation to African legal theory?
The Banjul Charter, also known as the African Charter on Human and Peoples’ Rights, is a regional human rights instrument that attempts to embody various aspects of African legal philosophy on human rights. It is significant because it represents a departure from previous international and regional human rights instruments by being responsive to uniquely African circumstances. It enshrines not only rights but also duties. The Charter recognizes that the respect for people’s rights should necessarily guarantee human rights. It is seen as an instrument of both human and peoples’ rights. It includes both civil and political rights, as well as economic, social, and cultural rights.
How does the Banjul Charter uniquely include duties, and what is their significance?
The Banjul Charter includes explicit duties, unlike previous international instruments which merely refer to duties implicitly. It posits a harmonious relationship between rights and duties. Some duties are owed to the family and the community, emphasizing collective responsibility. Article 29 highlights duties to the family. It states that the individual has a duty “to preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents at all times to maintain them in case of need.”
• Explanation: This approach reflects African thought, where the individual is seen as embedded within a network of responsibilities as well as rights.
What are the three generations of rights recognized in the Banjul Charter?
• First Generation Rights: Civil and political rights, such as the right to life, freedom of speech, and fair trial.
• Second Generation Rights: Economic, social, and cultural rights, such as the right to education, health, and housing.
• Third Generation Rights: Collective or solidarity rights, such as the right to development and a healthy environment.
What are some of the different philosophical approaches to the nature of human rights?
Human rights can be seen as:
• Pre-legal moral rights: Rights that exist independently of legal systems, capable of criticizing societal norms.
• Morally justified legal rights: Rights created by a legal system, rather than pre-legal.
• Moral and legal rights: Rights which have both a moral and a legal dimension.
• Sui generis: Rights that are understood as a distinct category of their own.
According to the document, what are some of the main philosophical approaches to justify human rights?
The existence of human rights can be justified by:
• Agency: Human rights protect the capacity for autonomous action, the ability to choose how to act and to stick to that decision.
• Basic Human Goods or a Good Life: Human rights protect things that are objectively valuable or necessary for a good life, such as life, knowledge, and friendship.
• Basic Needs: Human rights protect basic needs such as food, water, and social interaction necessary for a minimally decent life.
• Moral Status: Human rights reflect the moral worth of individuals, and as a result should not be sacrificed for other interests..
• Transcendental: Human rights are a necessary belief of our condition as rational agents.
What is the difference between instrumental and non-instrumental justifications of human rights?
• Instrumental Justification: Human rights are justified because they are a means to a valued end, like protecting autonomy, securing basic needs, or securing a good life.
• Non-Instrumental Justification: Human rights are justified by their role in expressing or reflecting the moral worth of their holders. They are not justified by their capacity to promote other valued ends.
• Explanation: Some theories see rights as valuable for what they achieve, while others see them as inherently valuable, reflecting the dignity of individuals.
What are some challenges to the idea of universal human rights?
• Cultural Relativism: The idea that human rights are a Western concept imposed on other cultures. Some argue that different cultures have different views of human rights and values.
• Diversity of Human Flourishing: The idea that a single set of human rights may not suit all forms of a minimally good life because there are many ways to live a good life.
• Marxist Critique: The claim that human rights protect the individual but mask the structural injustices of capitalism, hiding the ways that human life is stunted.
• Ethic of Care: The suggestion that human rights are too focused on abstract principles, neglecting the importance of relationships and care.
• Enforcement: The argument that human rights must be socially recognized and enforced to exist, rather than just as moral norms.
Why is the enforceability of human rights a complex issue?
• Some argue that human rights need to be enforceable to exist, rather than just existing as moral norms.
• Others hold that human rights exist even if they are not enforceable in practice and not all human rights are enforceable. Some rights like the right to respect may be seen as not being enforceable.
How does the state relate to socio-economic rights, according to the document?
There is considerable debate over whether the state has a duty to ensure that people have the opportunity to realize these rights, or whether it is simply a goal. There is a question about whether the state is the primary duty bearer for these rights, or if other countries should be involved in helping other states to realize these rights. Some believe that socio-economic rights can be achieved by setting goals for a state rather than setting duties on a state, and such goals are seen as flexible in a way that duties are not.
What is the naturalistic conception of human rights?
• Human rights are pre-legal moral rights inherent to all humans.
• Based on being human, not legal or social conventions.
• Key aspects include: universality, timelessness, and a focus on human nature.
• Often linked to human dignity, agency, the idea of a good life, or basic needs.
What is the political conception of human rights?
• Human rights are defined by their role in international political practice.
• They set limits to a society’s autonomy and justify international concern.
• They serve as a framework for state treatment of individuals.
• Emphasizes states as primary duty-bearers.
What is the overlapping consensus view of human rights?
• Human rights are justified by agreement across diverse cultures.
• Moral and religious differences do not negate agreement on human rights.
• Authority of human rights norms stems from this shared agreement.
What is cultural relativism’s challenge to human rights?
• Human rights are seen as a Western construct, not universally applicable.
• Questions the idea of universal human rights, given cultural differences.
