4.6 - Markovic, Mihailo - Philosophical Foundations of Human Rights (en)

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Philosophical Foundations of Human Rights

Philosophical Foundations of Human Rights

by Mihailo Markovi

Source:

PRAXIS International (PRAXIS International), issue: 4 / 1981, pages: 386-400, on www.ceeol.com.
http://www.ceeol.com/http://www.ceeol.com/http://www.ceeol.com/http://www.dibido.eu/bookdetails.aspx?bookID=1a2cd39c-1a20-48e9-a565-08c4dc602096http://www.ceeol.com/


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386

PHILOSOPHICAL FOUNDATIONS OF HUMAN

RIGHTS*

Mihailo Markovi

Basic civil rights and liberties are great achievements of the past democraticrevolutions. They are necessary although not sufficient conditions of freehuman life in any society. A critique of these rights which rejects or disparagesthem as merely formal, abstract, or bourgeois is devoid of historicalsense and expresses an aggressive obscurantism, particularly when it comes from

societies which not only have not overcome this bourgeois level, but have notyet even approached it.

These rights are surely limited, and in conditions of a very unequal distributionof wealth and of material and spiritual misery in which great parts of thepopulation are still condemned to live, these rights indeed partly express onlyabstract possibilities which, for economic reasons, cannot be brought to life. Butit is equally true that changes in economic systems without an essential politicaldemocratization do not lead to really new and more just forms of society. Theytend to keep alive authoritarian institutions analogous to those in feudal society,in the same way as one-sided political democratization, without economic

democratization, made the survival of slavery possible in the U.S. during a wholecentury from Washington to Lincoln. Socialist revolutions in our centuryrejected imperialand royal autocracies because they were imperial and royal, andnot because any autocracy is incompatible with the principle of the sovereignty ofthe people. Power remained completely concentrated: it was possible tocommand from one single center not only executives, but also legislators and

judges. The individual was called citizen and comrade, but the level of civilrights and of civil consciousness which had already been reached in theeighteenth century remained a distant, almost unattainable goal of politicaldevelopment. Instead of being a civil servant responsible to citizens, the statefunctionary keeps demanding proofs of political loyalty from them. The powerfully controls people instead of being controlled by them. Instead of reaching themaximum of personal security when they behave in accordance with theconstitution of their country, citizens end up in jail when they interpret literallythose articles of the constitution which guarantee to them freedom of speech,freedom of public manifestation and demonstration, freedom of politicalorganization.

It is true that bourgeois representative democracy can no longer be consideredthe optimal form for the political organization of society. It is, however, the

necessary initial level of a democratic society. The presupposition of democracyis the recognition that demos(the people), is mature, able to make basic decisions,able, among other things, to elect its representatives. With nineteenth century

* Section 1 of this essay was prepared by Prof. Ljubomir Tadi and myself as a part of the collectivestatement of the Belgrade Praxis group The Meaning of the Present-day Struggle for Human Rights.


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Praxis International 387

political parties, powerful mediators between citizens and their representativesappeared on the historical stage. As a consequence of this mediation, theinfluence of the voters over elected representatives was diminished, the power of

political parties and their factions in parliament was increased and alienated. Thisalienation reaches its maximum when a single, monolithic, authoritarian partymonopolizes all political power. Under such conditions, elections no longerexpress the peoples will but its loyalty; they are no longer a right but anobligation. The purpose of the principle of limitation of re-election was toprevent a permanent alienation of the elected representatives from the electorate,and in some bourgeois societies it has been strictly respected for the last twocenturies. By contrast, the institution of ruling cadres who can be removed onlyby the action of biological laws or as a consequence of disloyalty to the sovereignleader is much closer to a feudal than to a new socialist society.

1. European history of human rights

The issue of human rights emerges in history in its practical political form atthe moment of open conflict between a revolutionary bourgeoisie and stateabsolutism. Only then does the contradiction between law and state becomemanifest: law emerges as a guarantee of human freedom against the arbitrarinessof state power, as an expression of the citizens resistance to oppression. Thus inthe 1793 French Constitution, it was stated explicitly that the need to proclaim

rights of free expression of thought and of free gathering and religious festivitiesinvolves a presence of a memory of autocracy. According to the constitution,the law must protect public personal freedom against oppression by the rulers.Freedom was recognized as a natural, in-alienable right. Laws ceased beingmere instruments for subordinating people, ceased being tools of usurpation andtyranny. They now became the means of protecting the citizen from the abuses ofthe rulers. Political emancipation means that the state as a public power may notbe used for the private goals of its functionaries.

Since 1789 the concepts of constitutionality, of legal rule, and legalstate grant legitimacy only to that state which can be controlled by its citizens,

only to that power which excludes autocracy and absolutism. In accordance withthe concept of constitutional and legal guarantees of freedom, criminal law nolonger protects the interests of the state, nor the imperative of state reason,but the interests, liberties, and rights of its citizens. A necessary condition of theirprotection is a judiciary independent of executive power. Laws and state acts

which violate these principles of justice can no longer be considered legitimate.This affirmation of justice over the state and positive law was stated explicitly forthe first time in the American Declaration of Independence and the FrenchDeclaration of The Rights of Man. It completes the great revolutionary democraticprocess which started with the Enlightenment and the idea of rational natural

law. The focus of legality had now been shifted from force and sanction to civilfreedom.

It is hardly controversial, since Marx, that the whole idea of civil liberty, ofpolitical emancipation, has its class limitations. The human individual is split, inthat idea, into an immoral, economic egoist and an abstract citizen who is

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Praxis International388

supposed to be a moral person. What is controversial, and what makes the debateabout human rights so important today, is the stubborn rejection of politicalemancipation in toto by official Marxism in socialist countries. Clearly what triesto remain hidden behind dogmatic theory about the incompatibility of bourgeoisand socialist democracy is a long praxis of drastic suppression of human rightsand the revival of state absolutism. It is true that bourgeois law presupposes theenslavement of humans to things; that private property is an obstacle to, ratherthan a guarantee of, freedom; that bourgeois democracy gives a very limitedamount of political power to its citizens. But how can an absolutist state, even

when it calls itself socialist, be considered a better, historically superior form thana liberal, representative democracy? What follows from Marxs dialecticalcritique of bourgeois law is that political emancipation is a great progressiveachievement. Even though it is not the ultimate form of human emancipation,it is the highest form of human emancipation within the existing world order.But if political emancipation is a phase of universal human emancipation,socialism cannot ignore or reject it without jeopardizing the very reason for itsexistence and the legitimacy of its ultimate goals. The great emancipatorytradition is one of the grounds of socialist revolution. Of course it went beyondthe narrow horizon of bourgeois law and carried in itself the goals of universalhuman liberation. However, political emancipation can be transcended but notrepudiated.

The Constitution of the Russian Federal Socialist Republic of 1918 in its

Declaration of Rights of Exploited Working People laid down as its basic task theabolition of the exploitation of one person by another and stated as its generalprinciples: true freedom of conscience, true freedom of thought, truefreedom of choice, true freedom of association, and true freedom ofeducation for working people. There was an obvious intention in this firstSoviet constitution to remove the contradiction between the form and the contentof democracy. On the other hand, by proclaiming the dictatorship of urban andrural proletariat and poorest peasants, the first Soviet constitution deprivedearlier ruling classes of many rights. The Soviet legal theory of that time definedthe dictatorship of the proletariat as a power which exercises coercion over the

bourgeoisie and in doing so is not constrained by any law. Such a view wasinterpreted at that time as a legal revolution. Soviet legal theory justified thecomplete subordination of law to politics in the transition period byrevolutionary expediency. The danger of bureaucratization was completelyoverlooked: according to the official Soviet ideology it was a ridiculous andabsurd nonsense to oppose the dictatorship of masses to the dictatorship ofleaders; it was an elementary truth that the relationship between the leaders,the party, and the class was ordinary, normal, and simple. As a matter of fact,however, and in a rather simple way, the dictatorship of the class was indeedreduced to that of the party which, in turn, degenerated into the dictatorship of a

single party leader.After the critical year of 1921, in the Bolshevik party leadership the view

prevailed that the party mechanism in the system of the dictatorship of theproletariat could secure its leading position only under the condition ofmonolithic unity. That meant the complete elimination not only of other, even


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socialistic, parties, but also of any organized groups and factions within theBolshevik party itself. The dictatorship of the proletariat turned out to beincompatible with political democracy. The bourgeois fetish of law was replaced

by a bureaucratic fetish of politics. The vague idea of revolutionary expediencywas later transformed into the cynicism of the reason of state.

In the new system there was no place for the associations of citizens andproducers that Marx spoke about. There was indeed no place for anyorganization that rested on the self-determination and self-initiative of liberatedindividuals. Duties prevailed over rights, prohibitions and sanctions overliberties the ideal of any authoritarian power. The legitimacy of an utterly

voluntaristic state praxis was based on an assumption of reified, suprahistorical,suprahuman objective laws of socialism which acted independently of theconsciousness of actual living people. Masses were construed as purelymechanical, passive material modeled according to the twists and turns of thisnon-human necessity. What started as a Marxist critique of bourgeois law endedup as a conservative justification of political Caesarism.

What remained of proclaimed real liberties of conscience, thought, education,and organization were caricatured forms only. A citizen was free to think but wassuspect until he or she proved that their thinking was constructive. One wasfree to elect as ones own representatives only those who were previously chosenby the Party. One was also free to join all those organizations and societies whichunderwent strict and permanent Party control. Real education has been

subordinated to the pragmatism of daily politics and the imperatives of athoroughgoing pseudo-revolutionary indoctrination. The citizens were not evenaware of their right to know what the state did in their name and how itspent the surplus product of their labors.

Even the most naive citizens hardly believe today that all those articles of theConstitution which guarantee freedom of conscience, thought, speech,publication, and organization are really written for them. They know they couldbe held responsible for a crime against the people and the state or end up in amental hospital if they take the Constitution of their country seriously andbehave according to it. One of the most oppressed strata of this pseudo-socialist

society is precisely its ruling class: the workers do not even have the traditionalrights which they exercised in capitalist society before they were liberated,namely, the right to organize into trade unions and the right to strike. A reallynew, free, and just society presupposes both political and economicemancipation. What lies beyond both an authoritarian, coercive state and a reifiedmarket regulation of production is a democratic socialism in which all publicpower that is necessary for the regulation of socially necessary processes remainsin the hands of self-governing councils and associations of citizens and producersthemselves.

2. Four humanist alternative grounds of human rights

How can we justify human rights and, indeed, any given or conceivable legalorder? If we reject the idea of their divine origin, we seem to have essentially thefollowing four alternatives:


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(1) A static, ahistorical relativism exemplified in any empiricist, pragmatist, orstructuralist approach. From this point of view each particular society, eachcivilization, has a set of rules which regulate human relationships and maintain a

necessary level of social cohesion. These sets are different and incommensurableparadigms like Bachelards different types of rationalism, or Kuhns scientificparadigms, or Levi Strausss codes for the expression of specific socialstructures. This type of approach allows an objective study of each particularparadigm but rules out the possibility of speaking of a universal human justice.Moral and legal systems cannot be compared: all concepts of good, right,ought, or just become relative to a specified system, and it does not makesense to evaluate one morality as better than the other.

(2) If this relativism does not satisfy us, because it tends to strip the generalideas of human being and history of any meaning, we may turn to anabsolutism of a Kantian or phenomenological kind. There is a transcendentalconcept of the human person and of practical reason; an ahistorical,autonomous good will, a universal moral law (the categorical imperative),provide the basis of all morality and justice. Those who, like Scheler, reject theidentification of the aprioriwith the formal and of the aposterioriwith thesubstantial, may project moral values into a particular realm of validity (Geltung)outside of both spheres of the material world and human consciousness.

(3) Those who, in an age of rapid historical progress, do not see much merit insuch a static conception of both a formal ethics of duty and of an axiology of

values in themselves, may prefer the historical absolutism of Hegel. Anyparticular moral order within a family, a nation, or a civilization, and morality initself as a form of consciousness, are only objective stages in the development ofan absolute Spirit. This approach opens the possibility of comparison andcritique of various moral and legal systems, of seeing their inner limitations, ofevaluating one as merely a particular moment of the other. However, the basicassumption of an absolute mind implies the absence of history, of the possiblecreation of new forms of morality and law in the future. The system had to beclosed if it claimed absolute truth: all real development took place in the past.

(4) The legitimate heir of Hegels thought, Marx left behind an ambiguous

body of ideas. Those which nowadays constitute the foundation of officialMarxist ideologies offer ahistorical but relativistconception of morality and law.According to it there is a true development of morality in history. History andnot only the past but also the future may be seen objectively as a process ofgrowth of social productive forces and a succession of increasingly rich and freesocio-economic formations. But history may also be seen subjectively as a historyof class struggles. Each class has its own morality rooted in the objective materiallife conditions of that class. An overemphasis on the class character of humansand a reluctance to see elements of universal humanity in each individual andclass lead back to relativism. This is obvious in the Marxist orthodoxy of both the

Second and Third Communist International and also in the Marxiststructuralism of an Althusser. Rather than seeing in the future what Hegelestablished in the past (namely, a process of totalization of humans in general, ourprogressive enrichment and emancipation), both orthodox and structuralistMarxists construe history as a series of modes of production which are separated


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by social ruptures revolutions and cultural (epistemological) gaps.While it could be argued that Marx himself is very much responsible for this

relativist interpretation (consider Marxs Sixth Thesis on Feuerbach: Man is an

ensemble of social relations), he also made essential contributions to a humanist,truly historical conception of morality that goes beyond the dilemma ofabsolutism versus relativism. The view of the human being as a universal self-consciousness, developed in Hegels Phenomenology of Mind, was transcended bya conception of the human as apracticalbeing who creates its history, its materiallife conditions, social forms, morality, and law beyond any preconceived limit.

3. The conception of humans as beings of praxis a philosophicalbasis for human rights

The ultimate foundation of human rights is constituted by those essential needsof each individual the fulfillment of which is, under given historical conditions, anecessary condition of social survival and development. Law is just, humane, anduniversally valid only if particular statutes and legal acts express such universalneeds; if they do not, then law is only the expression of naked force. If law isreduced to positive law, to what is written in the laws of a state, it is nothing but a

justification of particular interests of the ruling elite. In such a case law would be,as Thrasymachus in Platos Republicput it, what benefits the most powerful.

Obviously, then, laws can be profoundly unjust. Just law cannot be based onthe authority of the state, but on a superior principle which makes the state itselfpossible and meaningful. That higher principle was interpreted in various waysin the philosophical critique of positive law: natural law, rational law,reason, freedom, external, unchangeable justice, absolute moral

values, logos of history. Such interpretations make sense as a challenge tolegal positivism and as the expression of critical thought which cannot reconcileitself with a legal apology for an existing tyrannical and inhuman order.However, the essential limitation of such interpretations is the fact that they areunhistorical or even antihistorical. The principle on which all law rests must

allegedly hold in a transcendental way, for every conceivable society, sub specieaeternitatis. What follows, then, is that human rights are determined by the veryfact that an individual belongs to the human species, that those rights havealready their ultimate formulation in eighteenth century bourgeois revolutions,and that the whole historical process after that should only render economic andpolitical conditions for their implementation.

The static, ahistorical nature of this approach makes it acceptable to theconservative forces of bourgeois society. However, the fact is the human speciesis not merely given it undergoes a process of permanent self-determination andself-development. Actually existing human rights and liberties constitute only a

phase in this historical process of increasing emancipation.How can one criticize positive law and yet avoid idealistic transcendentalism?

How is it possible to hold that law is historically conditioned and open todevelopment, and yet avoid an eclectic relativism?

In order to build a point of view which is historical but not relativistic, critical


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but not sceptical, objective but not transcendental, we must ascertain thosespecific features of human activity which make the difference between the simpleflow of time and human history. Then we must ask which are the specifically

human needs that make this activity possible and which permanently evolve inthe course of human history. Do not these constitute the very basic source ofhuman rights?

One has to ask if human history as a whole is a meaningful process or not.Before answering such a difficult and complex question, one could ask a simpler,more general one: What constitutes the meaning of any life process? JacquesMonods answer was teleonomy: a unique, primary project of preservation andmultiplication of the species. One could ask here: what makes this basic projectvaluable? Why is preservation of species better than disappearance? Why is itbetter to multiply than to simply restore the already achieved quantitative level?

The only answer to such a question is the following: What is here described asbetter or worse is not merely a matter of subjective preference, it refers to atendency which is a necessary part of the very definition of life. Surely not allindividuals and species survive and multiply. But while they do, they are alive. Ina similar way one should add that life involves a tendency to maintain andincrease order and structural complexity; a process of change in the oppositedirection toward lesser order and complexity is bad for a living organism sinceit leads to the destruction of life. It is therefore being described in negative terms:as a process of degradation.

The comparable question with respect to human history asks: What is theprimary project of historical development? Which are the objective conditionsnecessary for human survival and development, not as a mere living organism butas a distinctly human being? Many things which actually occurred in thecourse of history do not belong to such conditions: famines, floods, earthquakes,massacres, destruction. What made human history possible and indeed unique in view of the explosive development of the last few thousand years was aspecifically human activity: praxis. Praxis is purposeful (preceded by a consciousobjective), self-determining (choosing autonomously among alternativepossibilities), rational (consistently following certain general principles), creative

(transcending given forms and introducing novelties into established patterns ofbehavior), cummulative (storing in symbolic forms ever greater amounts ofinformation and conveying it to coming generations so that they can continue tobuild on the ground already conquered), self-creative (in the sense that younghuman individuals, after being exposed to an increasing wealth of informationand new environmental challenges, develop new faculties and new needs). Praxisis a new, higher-level form of the human species. It retains genetic invariance,self-regulation, teleonomy. But it goes far beyond them. The plastic geneticmaterial will be shaped in countless different ways by social conditioning; self-regulation will become more and more conscious and autonomous; and the

conservative telos of the species preservation and multiplication will bereplaced by an entirely new basic project: the creation of a rich manifold,increasingly complex, and beautiful environment, self-creation of persons with anincreasing wealth of needs. Many human activities are clearly not instances ofpraxis, nor are they characteristic of human history. The repetitive work of a


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slave, serf, or modern worker resembles more a beavers dam building thancreative work.

As in the discussion about the basic, inherent teleonomy of life, it is possible to

ask the question: What is the goodof all this creation and self-creation? Is it notbetter to go back to simple organic life in as natural an environment as possible,

with a minimum of needs? And, as in the earlier case, the answer is that adifferent telos is possible, but it would not be the telos of human history. Theemergence of human life is this gigantic step from the simple, organic, repetitive,narrow naturalworld to the complex, civilized, continuously developing, vastlyexpanded historicalworld, from a poverty of needs and abilities to an increasing

wealth of goals and life-manifestations.A judgment of this kind is still factual. What has been argued so far is that, as a

matter of fact, the specific characteristic of humans and human history is praxis.A basic normative standpoint is taken when one commits oneself to supporting,stopping, or reversing that trend of growing creativity in history. This is thepoint of a crucial bifurcation in ethics.

To commit oneself to increasing creativity in history, to praxis as the basicaxiological principle, means to assert that it ought to be universally accessible,that it ought to become a norm of everybodys life. This again means toencourage discovery of the essential limitation of given social forms, institutions,and patterns of action; it means to try and explore new, hidden possibilities of adifferent, richer, more complex, self-fulfilling life; to express them in the form of

ideals; to examine strategies of bringing them about. This type of ethicalorientation is clearly critical and emancipatory.A conformist, status-quo preserving approach involves a tendency to reserve

praxis for the elite and to condemn the vast majority of human beings to inferior,not characteristically human, forms of activity; involves offering receptivity as asurrogate for creativity and condemning emancipatory ideals as utopian. It resistsfurther liberation processes, but at least it tends to retain the level of freedomalready achieved.

A retrogressive normative attitude to history involves a commitment to thereversal of the historical trend, to the restoration of already dismantled master-

slave social relations. Servility is offered as a substitute for creativity: the glory ofconquest and domination, on the one hand; the honor of serving and patiently,loyally enduring, on the other.

These three basic attitudes to history are mutually incompatible. The dialoguebetween those who advocate them makes sense only in order to establish whetherthey have been taken consistently and whether they can be lived in practical life.If this is the case, discrepancy in value judgments cannot be overcome.

Assuming that we accept the universalization and continuation of praxis inhistory as our fundamental normative standpoint, the question is what else does itinvolve, and how could it be further analyzed? What is meant by saying that

humans are and ought to be beings of praxis?(1) In contrast to traditional materialism and empiricism, the human person is

not merely a reflection of external natural and social forces or a product ofeducation; he or she is not only a superstructure of a given economic structurebut also a subject who, within the constraints of a given situation, create


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themselves and reshape their environment, change the conditions under whichcertain laws hold, and educate the educators. On the other hand, in contrast toHegel, a human is not conceived as a self-consciousness only, but as a subject-

object who is constrained not only by the quality of existing spiritual culture butalso by the level of material production and the nature of social institutions.However, precisely because we have both subjective and objective dimensions,both spiritual and material power, we are able to understand our limitations and,also, to overcome them practically.

(2) Humans are certainly actual, empirical beings. An ethical theory becomesirrelevant when it merely imposes on us norms which are completely divorcedfrom that empirical reality and have no ground in it. Certainly, usingsophisticated means of manipulation and brute force, certain obligations andduties can be forced upon a community, but a true morality cannot be producedin such a way. It has to be autonomous, and only an actual (individual orcollective) subject can lay down its own moral laws. On the other hand, moralnorms, by the very nature of being norms, are never a mere reflection of actualexistence. Morality, like every act of praxis, begins with an awareness of alimitation in actual empirical existence, in the way we habitually, routinely act.Norms may be already present in our customary behavior, but these are eitherlegal norms imposed by force, by the threat of social, overt coercion, or customsunconsciously accepted in the process of socialization and blindly, instinctivelyfollowed like any unconditioned reflex. Morality involves a conscious, free choice

among alternatives, and that choice transcends the immediate, selfish needs ofour actual existence it expresses long-range needs and dispositions of ourpotentialbeing.

Human potential is not a part of directly observed empirical existence, but itbelongs to the reality of a person or community and is empirically testable. Farfrom being a vague metaphysical concept, the notion of a potential capacity or ofa disposition can be operationalized by stating explicitly the conditions under

which it would be manifested (provided that those conditions can be produced inspecified ways and the reality of dispositions tested).

(3) Both in actuality and potentiality a human being is, in the first place, a

unique personwith quite specific capacities, powers, and gifts. A person is also aparticular, communal being: only in a community does one become a human,bring to life ones abilities, appropriate accumulated knowledge skills and culturecreated by many preceding generations, develop a number of social needs: tobelong, to share, to be recognized and esteemed. The levels of particularity aremany: an individual belongs to a family, to a professional group, class, nation,race, generation, sex, civilization.

That is where all relativists stop: a particular being invariably has a particularmorality; there can be no universal standard of evaluation. Philosophers whodevelop such universal criteria had either to eliminate history like Kant in his

transcendental ethics, or, like Hegel, to construe history as the process ofactualization of a potential universal spirit. Both lead to absolutism. The problembecomes solvable only when the absolute spirit is replaced by the idea of auniversal human species-being. As we saw, that universal is not only spiritualbut also practical; it does not exist in abstracto but as the basic potential of


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concrete living individuals. The descriptive concept of this universal humannature is constituted by a set of conflicting general dispositions; some supportingdevelopment, creation, and social harmony; some causing conflicts and

destruction. From the standpoint of historical praxis, the former are evaluated asgood and enter into a normativeconcept of human nature. This concept is notfixed since history is, in contrast to Hegel, an open-ended process. This point of

view is not absolutist as was Hegels: humans continue to develop, and in thefuture ever new forms of morality may be expected to evolve. And yet one neednot relapse into relativism. Development in history is continuous: a translationand incorporation of the practical products and experiences of an earlier periodinto a later one remains possible, and there are trans-epochal invariants.

Therefore there are good reasons to argue that, in spite of all discontinuitiesbetween particular epochs and civilizations, there is one universal humanknowledge, there is one material and spiritual culture that grows, one humanspecies-being that evolves through the life of all various individuals andparticular communal beings. At a given moment of history there may be onetheory that expresses their accumulated knowledge (that already achieved wealthof human beings) better than other preceding or coexisting theories. In the futurethis theory will also need revision, but at the present its author could havesufficiently good reasons to hold that his or her views are truer than those of hisor her opponents. He or she may be wrong, but that must be shown by superiorarguments.

4. Rational Resolution of conflicts concerning human rights

A conflict concerning human rights is a special case of a conflict in valuejudgments. Its resolution would be rationalunder the following conditions:

(a) The proponents of conflicting value standpoints enter a dialogue (i.e. adiscourse in which they are equalparties) in which they try to prevail by the forceof arguments but allow from the beginning the possibility of a limitation in theirown position which they are ready to overcome.

(b) The dialogue as a whole must be consistent: all contradictions that emergemust be resolved.

(c) The reasoning of both participants in the dialogue is regulated by rules(implicitly or explicitly accepted by both of them).

(d) A rational consensus will be reached if the opponents share the sameultimate principles.

Obviously it is very difficult to meet all those requirements. Partners in acommunication on human rights are not always equal and are not always ready togive up any other force except the force of arguments. Also they are usually notready to take a critical view of their own position and to allow for the possibilityof its revision. Most people prefer to live with contradictions rather than toresolve them, and the rules which they follow are not always logical rules

common to both opponents.Especially difficult seems to be the requirement of shared basic principles. And

yet it can be met. There are enormous differences in value judgments made indifferent situations. But if differences were put into brackets, agreements on basicpreferences would be discovered surprisingly often.


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A vast majority of people would agree that other conditions being equal lifeis preferable to death, creativity to destruction, freedom to slavery, communalsolidarity to brute egoism, material well-being to poverty, development to

stagnation, independence to being dominated, dignity to humiliation, autonomyto heteronomy, justice to abuse, peace to war. Disagreements arise about thehierarchy of such universal values and, especially, because other conditions arereally not equal. Life need not be preferable to death when the price for it is lossof dignity; peace need not be preferable to war when it leads to less of freedom.Consequently, the greatest problem for the rational resolution of value conflictsis not the absence of any common axiological principles, but the conflicts amongthose very principles under various specific conditions and the fact that differentcommunities, living under different historical conditions, assign those principlesdifferent weights and hold them in different hierarchical orders.

Those who deny the very possibility of agreement on certain basic valuesamong people who belong to different cultures and different social systemsshould try to account for the fact that on December 10, 1948 the UniversalDeclaration of Human Rights was accepted by American, Soviet, and otherleading politicians of the world. How was it possible for ideologues of conflictingpolitical and social systems to reach consensus on a number of fundamental

values? How was it possible to reaffirm, in Article 1, the principles of equality,freedom, and brotherhood? How was it possible to agree, in Article 2, on theprinciple of non-discrimination concerning race, color, sex, language, religion,

political beliefs, and national and social origin? How was it possible to agree inarticles 18-24 on the rights of free thought, conscience, information,organization; on the right of each person to participate in governing theircountry; the right to social security; the right to work and to have equal pay forequal work?

All this was possible because, in the first place, in present-day society certainbasic things are no longer controversial. It is one thing to play a bizarre languagegame in a class room or in an academic journal, it is another thing to challengeseriously and publicly certain values on which the whole present civilizationrests. American and Russian ideologues will easily endorse together that No one

must be kept as a slave or a serf; slavery or slave trade are forbidden in all forms(Article 4). And why? Because their present-day social systems have come intobeing precisely as the consequence of the abolition of slavery, in one case, ofserfdom in the other.

Politicians tend to agree (or at least to verbally make an appearance ofagreement even when they know that the conflict of interests has not really beenremoved) because they are dealing with issues of direct, general concern, often

with dangerous and disastrous practical implications; because they are doing itunder the public eye, sometimes under great psychological pressure to come toterms with the opponent; and because they are very well aware of the possibility

of construing agreement as a great personal success. They cannot afford to playwith logical possibilities and allow themselves to be pushed into a defense ofcrazy theories that could finish them as politicians. They act under muchgreater real constraints than the intellectuals, and in order to escape them theyuse ideology. What looks as a rational resolution of conflicts will often be a case of


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ideological resolution: missing consistency, distorting the customary meanings ofwords, and construing the own particular interest as the universal, thereforeethical, one.

For the time being such agreements are of limited, but by no means negligible,importance. They tend to erode rigid positions, to expand the spiritualhorizons of the opponents, and to make them understand better alternative pointsof view. And even when the terms of a conflict solution are not taken seriously bythose who produced it, they can be interpreted literally and used in surprising

ways by large audiences everywhere. A good example is the 1975 Helsinkiagreement on human rights which was reached easily by a number ofgovernments because it was considered a harmless and non-binding document. Itbecame important when it raised the hopes of millions of people and helped toarticulate their demands for more freedom and justice.

Dialogues on human rights help us to see better where the real difficulties areon the road of rational resolution of value conflicts. In contrast to what manyphilosophers imagine, the greatest difficulties are not the absence of any general

value principles from which particular value judgments can be derived, nor theincommensurability of the values of different social groups and cultures.

In the United Nations Charter, for example, American liberals and SovietMarxists found ways to agree on whether private property is a human rightor constitutes a violation of workers human rights. Article 17 says: (1) Each hasthe right to own property alone or in community with others. (2) No one may be

arbitrarily deprived of his property. This is an example of a general rule thatexpresses what is common in the particular norms of Liberal and Marxistsystems of values.

The Marxist does not deny that what he calls personal property in contrastto private property is a human right. Marx and Engels stated that capitalismabolished the personal property of artisans and farmers and concentratedproperty in the hands of a few individuals, whereas communism restores personalproperty on new ground. The Liberal, on the other hand, does not bother aboutthe distinction between private and personal property and, rather satisfiedthat the formula about the right to own property alone is acceptable to the

Marxist, has no reason to oppose the idea of communal property. After all, whatis a corporation if not a peculiar form of communal ownership?

Again, to the Marxist it is of essential importance that the new revolutionarystate may expropriate private property. This is unacceptable to the Liberal. Butthe latter can have no arguments against the formulation no one may bearbitrarily deprived of his property. He also believes in the State and the law,and he knows very well that modern factories, city quarters, railways, andairports would not have been possible without compulsorypurchases of hundredsof thousands of private farms and houses. So he must reduce his defense ofcapitalism to the denial of arbitrary revolutionary expropriation. Once there is

a new state and a new law, their acts cannot easily be criticized from thestandpoint and to the advantage of a Liberal. An eighteenth centuryrevolutionary democrat could challenge positive law from the standpoint ofnatural law, and he could condemn various coercive acts of any state from thepoint of view of the sovereignty of the people. For both a Soviet bureaucrat and


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an American quasi-liberal this is a dangerous approach. Sovereign people wouldhardly tolerate enormous concentration of either economic or political power inthe hands of a few; they prefer to reduce sovereignty of the people to sovereignty

of the state, thus to gloss over the right of people to challenge positive law, torecall its so-called representatives, and to overthrow the government whichbetrays public interests.

Thus we see that even antagonistically opposed participants in a dialogue mayresolve their value conflicts because they share important interests against thirdparties (people, in our example, or small countries, or the Third world), and theyinvariably share some general interests of the whole epoch, of the type ofcivilization to which both belong, of humankind as a whole. No matter howideologically divided, Eastern and Western Europe share not only institutions ofthe state, of law, and of personal property, but also of some kind of market, ofmarriage, of free elementary education, of a minimum of social security and

welfare. Most of these could be reasonably challenged from a differentcivilizational standpoint. On the other hand, some interests are truly universal:for example, to support life on Earth, to preserve nature from irreversiblepollution, to save non-renewable natural resources for future generations, toproduce enough food and energy for all countries, to control and reducedemographical growth, to conquer epidemical diseases and natural catastrophies,to prevent a nuclear holocaust.

All these different kinds of common interests constitute a basis on which some

value conflicts can, and sometimes must, be rationally resolved. Our examplesuggests that both parties in the dialogue are able to reach consensus when: (1)they stop simply attacking the values of the opponent in the specific forms in

which they were expressed initially; (2) they stop making propaganda for theirown values in the specific form in which this is usually done; (3) they search for amore general formulation of their own values; (4) they make concrete suggestionsas to how to generalize value judgments of the opponent; finally, (5) they look fora general rule which expresses the indispensable minimum content of bothopposed value judgments.

The greatest difficulties arise in the application and the control of

implementation of a solution of this kind. First, the parties in the dialogue (forhumanitarian or propagandistic reasons) subscribe to the values which areincompatible with social make-up in their countries. Thus the Sovietrepresentatives agreed to the right of each individual to move freely: to leave anycountry for good; to think and express their thoughts freely, without harassment;to exchange information and ideas across national borders; to have equal access toany public service in ones country; to freely choose ones profession; to organizetrade unions for the protection of ones interests, and so on. These rights could bepractically implemented only if the whole Soviet system were radically changed.On the other hand, American and West European representatives have agreed to

the abolition of any discrimination concerning race, color, sex, language, politicalaffiliation, and social origin. Yet all these forms of discrimination exist, and willcontinue to exist for a long time. Furthermore, there are a number of specifiedrights which are hardly compatible with the capitalist system, such as: the rightto work, to just conditions of work, to equal pay for equal work, to equal access to


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schools, and to an education oriented toward full development of onespersonality.

Second, because it is necessary to seek consensus at a sufficient level ofgenerality, the problem of classification inevitably arises. It will often be unclear

whether an individual case can be subsumed under a general norm, and, sincevarious governments keep violating the norms, they deliberately obscure theissues by misclassifying the cases. When East European dissidents are fired fromtheir jobs and locked up in prisons or mental asylums, these are not presented ascases of the violation of human rights but as justified defense of society fromcriminals and psychopaths. When Western radicals become victims of the

Berufsverbot, or are urged to register as the agents of a foreign country, or areframed and jailed these are also legitimate acts against enemies of thedemocratic order. Consensus on values had to be so abstract that all thoserepressive acts would not jeopardize it. Thus appearances of full respect forhuman rights can be kept.

Third, there is a tendency to make allowances for the exceptions from theagreed general norms. In politics such attitudes may pass as examples of realism,

wisdom, and statesmanhood. From the philosophical standpoint these are casesof irrationality. Ethical principles either involve a claim to universal validity then their practical application can be challenged only from the standpoint of aprinciple which ranks higher in the scale of values or, if they can bedisregarded because of a particular need, such as the strategic interest of one

state, they are deprived of any validity. A universal declaration of human rightswhich should be obligatory for hostile countries but not for allies would hardly beworth more than the paper on which it has been written.

Fourth, to the extent that a consensus is rational, it implies an openness forcritical examination of its practical import. However, East Europeangovernments reject the universal right of such a critique in the name of statesovereignty and non-interference in the internal affairs of other countries. This isclearly inconsistent with their ideological claim to be the heirs of ancient Greekdemocracy, the Renaissance, and the Enlightenment. One of the basicassumptions of this great tradition is that state power derives from the will of the

people, and that human rights are prior to state rights.From this analysis of existing dialogues of human rights it seems to follow that

many conflicts in the future could be resolved if:(1) the idea of human rights were generalized, including not only political

but also economic and cultural rights;(2) critiques of violations of human rights were more consistent and

impartial, directed at allies as well as enemies;(3) sovereignty of the state were subordinated to sovereignty of the people.

Conclusion

The present struggle for the practical realization of civil and human rights is anew dimension of contemporary emancipatory aspirations. To the extent that itstops being a mere phase of confrontation between governments and ideologicalcamps, and achieves the character of a mass movement, it will contribute


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essentially to the abolition of present-day barriers to human freedom and socialjustice.

To be sure, in different societies it will assume different forms and priorities.

In the countries of developed capitalism it is possible to use the level of politicalliberties already achieved in order to abolish present-day forms of economicexploitation and social oppression. In the countries of state socialism, an obviousprior need is the overcoming of state absolutism and a thoroughgoing politicaldemocratization. In the countries of the Third World it is essential that the basicmaterial and cultural preconditions for the implementation of human rights becreated, the growth of oppressive institutions and mechanisms adopted frommodern industrial society be avoided, and the attempt be made to preserve stillexisting pre-industrial forms of human solidarity and autonomy.

In none of these different situations will a higher level of human rights andliberties emerge spontaneously, nor will it be granted to a society by itsgovernment: it will be achieved only by the resolute struggle of variousemancipatory movements. Even in the most difficult conditions, even withoutany political organization, strong, fearless individuals and groups may keep alivegreat emancipatory ideas of the past, and by their own example may contribute tothe awakening of an elementary civil conscience.

4.6 - Markovic, Mihailo - Philosophical Foundations of Human Rights (en)

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Transcript of 4.6 - Markovic, Mihailo - Philosophical Foundations of Human Rights (en)