Human Right Concept: Historical Evolution, Philosophy and Distortions

By Lucky Akaruese

Human right concept (including its assumed particulars) was until the immediate post-World War 11 era referred to as natural right; and same derived from natural law (a concept in philosophy discourse). It has in todays world of politics and positive law, among others, assumed the status of universal core value presumed to bind together all human persons. Despite the unanimity of opinions in terms of the assumed characteristics of the particulars of the universal-human right, divergences bedevil views on the assumed particulars of human right. Such divergences largely emanate from weak knowledge of the historical evolution, including the epistemological and logical foundation of natural (human) right. This book gives an insightful overview of the historical foundation and the epistemology of natural (human) right; including its being a logical derivative/efflux from the humanness of every person which equally remain inherent in all persons. It concludes with the view that all assumed human rights enunciated in the different global declarations and conventions constitute category mistake by virtue of their phenomenal and social characteristics.

• Language: English
• Publisher: Xlibris UK
• Release date: Feb 23, 2012
• ISBN: 9781465396709

Lucky Akaruese

Lucky Oritsetojumi AKARUESE holds a doctorate degree in philosophy, specializing in Social Ethics/Human Right Philosophy, from the University of Nigeria, Nsukka; after obtaining his Bachelor and Master of Arts degrees, also in Philosophy from the then University of Ife (now Obafemi Awolowo University), Ile-Ife, Nigeria. He thought philosophy in the University of Uyo, Uyo, also in Nigeria before moving to teach Philosophy in the University of Port Harcourt, Port Harcourt where he has served as Head of Department of Philosophy. During the period of military dictatorship in Nigeria, specifically the Ibrahim Babangida and Sanni Abacha eras, Akaruese was a leading figure in the Pro-Democracy/Human Right Movements, and this earned him umpteen detentions and malicious prosecutions; all of which came to an end with the sudden death of Sanni Abacha. Akaruese is a widely travelled academic who has visited all the continents of the globe, besides Australia.

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Copyright © 2012 by Lucky Akaruese.

Library of Congress Control Number:       2011960552

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Contents

Chapter One

Chapter Two

Chapter Three

Chapter Four

Chapter Five

ACKNOWLEDGMENTS

A VERY DIFFICULT TASK for a writer centres on the issue of acknowledging indebtedness to others; and several factors in our opinion remain instrumental of which we shall not delve into. In our effort to critically examine human right concept within philosophy which is a second order discipline, and outside the present days’ general mode of conceptualization and articulation including the geography and politics of knowledge, one’s intellectual and material indebtedness to others could ofcourse be enormous and diversified of which not all can be recall here. Not oblivious of such problem, we shall however begin by recalling one of the sources of our stimulation to embark on this onerous and challenging effort to critically assess the epistemological and logical cogency of the 21st century human right knowledge/claim. A fundamental source is from our doctorial thesis titled Human Right: The Problem of Content submitted to the Department of Philosophy, University of Nigeria, Nsukka, Nigeria which was supervised by Professor Uzodinma T. Nwala. Thus, we remain immeasurably indebted to him as our former thesis supervisor whose critical comments and advice were instrumental to the success of that research which remains pivotal to this effort. Professor Julius Ihonvbere (my bosom friend and brother) deserves a special acknowledgement for not only giving me unrestrained access to his rich library, but also for his untiring efforts in securing for me publications on philosophy particularly those dealing on natural law and natural (human )rights during and after the period he was with the Ford Foundation, New York, U.S.A. I must also acknowledge the enormous influence of ‘discussions’ which we have had with individuals on human right issues in conferences, seminars, workshops, including classroom interactions with students of University of Port Harcourt, and Delta State University, Abraka, Nigeria where I was once a visiting scholar. All such individuals that we have benefitted from their discussions and views on human right knowledge cannot be recalled fully except to accept that they have in diverse ways influenced us. In this direction ,mentioned must be made of the different interactions with scholars during visits either on fellowship or for workshops/conferences to Centre for the Study of Developing Societies, New Delhi, India, Helsinki Foundation for Human Rights, Warsaw, Poland, Milieudefensie, Amsterdam, Netherlands, and others. In addition to benefits derived from discussions, we must also acknowledge the different academic materials which we were able to access from their respective collections.

Our gratitude of immense proportion goes to our colleagues in the Department of Philosophy, University of Port Harcourt with whom we have had a draw out mutual academic interaction in philosophy. Mr and Mrs John Guate and their daughter Oritseweyinmi, all of whom are resident in London will eternally be remembered for their unfathomable contributions to the success of this effort. They are always there for us anytime. Hon. Daniel Reyenieju who represents the Warri Federal Constituency (my electoral Constituency) in Nigeria’s Federal House of Representatives deserves our thanks for his invaluable assistance. Special thanks to my wife Roli Akaruese for her encouragements and ability to keep the home front intact despite her crowded official schedule. To my children, Weyinmi, Adetolugbe, Aboyowa and Bawo, I thank them for continuing to be a veritable source of inspiration to me. To Xlibris Corporation, United Kingdom, we remain grateful for its interest in this work and consequent publication after the painstaking efforts of its team. Others who are not reflected here due to space constrain are equally dear to us.

Whatever the shortcomings in this work, it remain ours.

Lucky O. Akaruese (PhD)                         October, 2011

University of Port Harcourt

Port Harcourt

Nigeria

Email—[e-mail]

Biodata

LUCKY ORITSETOJUMI AKARUESE holds a doctorate degree in philosophy, specializing in Social Ethics/Human Right Philosophy, from the University of Nigeria, Nsukka; after obtaining his Bachelor and Master of Arts degrees, also in Philosophy from the then University of Ife (now Obafemi Awolowo University), Ile-Ife, Nigeria. He taught philosophy in the University of Uyo, Uyo, also in Nigeria before moving to teach Philosophy in the University of Port Harcourt, Port Harcourt where he has served as Head of Department of Philosophy and currently a Senior Lecturer. During the period of military dictatorship in Nigeria specifically in the late eighties up till the late nineties, Akaruese was a leading figure in the Pro-Democracy/Human Right Movements, and this earned him umpteen detentions and malicious prosecutions. He is a widely travelled academic.

Preface

THE PHILOSOPHY CONCEPT of human right (also referred to as ‘natural right’) is perhaps one of the most discussed in recent times by a broad spectrum of the human race, and also one of the most assumed as being known and understood by individuals, groups and political operators; but yet, the knowledge—claims about human right remain intensely diverse and far from possible unanimity of views specifically at the level of identifying the ‘particulars’ of human right concept-which is the universal; i.e. the specific ‘right(s)’ that can be assumed as ‘particulars’ of human right with each of the identified ‘particulars’ equally retaining the defining characteristics of human right concept, which include among others universalism, eternity, immutability, inalienability and inviolability.

The contemporary centrality of human right notion in both international and domestic politics of the different states including the United Nations and other regional bodies and coupled with the conflicting views on how best to implement assumed human right’ particulars has precipitated a situation whereby ‘everybody’ at the same time seem to be defending and violating these ‘rights’ such that it (i.e. human right concept) has assumed the status of a mantra easy to evoke (even dubiously) for rationalizing (and even razzmatazz) policies and actions irrespective of their collective and respective macabre nature. Thus, under the guise of upholding and protecting human right ideals on behalf of the United Nations or for whatever reason(s), some countries majorly of the superpower categorization have had to wreck havoc of extreme diversely lugubrious proportion (interms of human and material dimensions) on weaker countries, and such devastations are panegyrically and arrogantly presented as necessary and moral (by such devastators) as strategy for protecting the human rights of some groups. In such situation, the constituents (i.e. particulars) of human right notion become automatically draped with phenomenal characteristics of malleable nature, and appurtenances of ultra-subjectivism.

The reason for this unwholesome situation (in our view) may have emanated from lack of thorough understanding of the concept of human right, a derivative of natural law thought; a concept that is located within the matrix of philosophy, whose understanding will ipso facto require the adoption of philosophy’s tools and method for knowledge-search, particularly those of the rationalist mould. Conversely, the contemporary dominant mode of studying and articulating human right concept now largely falls within the methodologies of the social sciences and positive law. This has resulted into what can be described as ‘sciential’ approach to articulating and understanding human right notion such that massively draw from the phenomenal; and thus human right concept becomes denuded of its absolute and universalised characteristics which constitute the distinguishing features of philosophy discourse and its concepts. Consequently, human right in relation to the human person becomes bereft of its distinctive feature as ontologically-given and as core universal value that bind all human persons together which all human persons possess equally as rational beings ((even in potentiality) by virtue of their common ‘humaness’. It is the need for a renascent approach to the understanding of human right concept that necessitate this effort which was first conceptualized and espoused in my doctorial thesis submitted to the University of Nigeria, Nsukka in 1999.

This book Human Right Concept: Historical Evolution, Philosophy and Distortions offer a historical and philosophical introduction and analysis to Human Right concept, and went further to critically assess the extents to which the respective ‘rights’ categorized as ‘human rights’ as espoused in the 1948 Universal Declaration of Human Rights can be properly and logically be situated within the definitional spectrum of human right concept in philosophy, and the same espousing the characteristics of philosophy discourse. This effort is derived from our grave concern about contemporary global misunderstanding and misrepresentation of human right concept which largely result from (deliberately or otherwise) confusing the notion of ‘inalienable right’ with that of state-centric right.

As noted by Austin Fegothey, law supposes rights, and all rights suppose law . . . natural rights from natural law, positive rights from positive law . . . natural rights are deduced from natural law. Thus, such right(s) of absolute and universal nature which are of immutable, inviolable, inalienable, trans-historical, trans-cultural and trans-social characteristics can only emanate from such ‘law’ of the same philosophical genre and characteristics. Also, all rights of state-centric (or positive or civil) genre can only ipso facto evolve from corresponding ‘law’. Therefore, natural law in its eternality, absolutism, universalism and transcendentalism (in our view) remain the only ‘law’ from which ‘inalienable right(s)’ can be derived, as all law supposes rights, and all rights suppose law. The two concepts are inseparable.

Deductively from the above brief analysis, all the said ‘human rights’ as encapsulated in the Universal Declaration including those of other regional declarations like the African Charter on Human and Peoples Rights which are derivative from positive laws cannot be categorised as ‘human right’ in the domain of philosophy discourse. All these are restrictive and devoid of the characteristics of universalism, eternality and absolutism, and thus at variance with the characteristics and principles of natural law thought. This explains why the exercising of such ‘rights’ as enunciated in the respective declarations will depend on the respective political states that are signatories, and who are also equally enjoined to create the necessary social and international order within which these assumed ‘human rights’ derived from man-made law can be realized. Also, the fact that States are enjoined not to arbitrarily deprive their citizens from exercising some of these rights is indicative of the extent to which some remain denuded of the characteristics and trappings of inalienable rights.

Having made a critical analysis of what ‘human right is’ (or do we say inalienable right), we also engaged in an historical excursus into the evolution of natural right thought which evolved from the speculative efforts of philosophers within the context of Western philosophy. This also include our efforts in surmising on how the phrase ‘human right’ came into being possibly in the immediate era of post—World War 11 which was coined to largely replace ‘natural right’ in literature probably because of the amorphousness and ambiguity of the term ‘nature/natural’ in ‘natural right’ concept. After these, the book unapologetically assert that even though all the ‘rights’ as enunciated in the Universal Declaration have been described as inalienable; a critical analysis of their collectivity including the nature and principle of the man-made law from which they were derived negate the principle of inalienability and consequently a total category mistake.

Our position is that positive (i.e. man-made) law which is non-absolute, non-universal and non-eternal, but restrictive, convulsive and spasmodic cannot be the basis for any ‘right’ of ‘human right’ nature which of necessity (i.e. human right) must be eternal, absolute, inalienable, inviolable and immutable. Consequently, we concluded that even though philosophers have through mental apprehension come to realize that every human person remain an inherent ‘carrier’ of certain inalienable right(s) of absolute, universal and immutable characteristics which effluxes from the individual’s ‘beingness’, but the specific(s) of such inalienable right (i.e. human right concept—the ‘universal’) is yet to be correctly identified. This lacuna we not only identified, but went further to fill by asserting that it is only the right to think that can be regarded as the individual human persons’ inalienable right of human right nature (even in potentiality), for it efflux from the individuals’ ‘humaness’

Finally, we are not unaware of this novel dimension on human right thought, and possible consequent effect(s), on post World War 11 and contemporary discussions, views and literature on human right concept. However, the ‘responsibility’ which the discipline ‘philosophy’ has historically placed on those who espouse it in the academy remain too sacrosanct to be compromised. For example, Socrates (470-399 B.C. ) remained true to this ideal, and hemlock was what he got as a ‘reward’ from the Ancient Greek society. That was in the Ancient Greece of the ultra deem past. Fortunately, the today’s world remains markedly different. It is a ‘world’ based on the triumph knowledge in general, and particularly the super ordinate status being accorded ‘positive’ science. But a ‘world’ where scientism is allowed to bestride the ‘biosphere’ of knowledge at the expense of philosophy may not be the best for humanity.

Lucky O. Akaruese (PhD)                                 November, 2011

Department of Philosophy

University of Port Harcourt

Port Harcourt

Nigeria

Chapter One

Introduction

EXTENT LITERATURE AND pronouncements have consistently portrayed conflicting views on the concept of ‘human right’. This in, our view, has necessitated the need for a careful, subtle and critical analysis of the concept in all its ramifications. Characteristically, all such views, irrespective of divergences, are basically in agreement to the effect that human rights are inalienable, inviolable, and immutable rights possessed by man (albeit, all individual human persons); and this is anchored on the assumption that every human person in the normative sense remain an inherent ‘carrier’ of certain ascribed right(s) which are also trans-social, trans-cultural, and trans historical. In philosophy discourse, these said ‘right(s)’ are assumed ontologically given such that transcend all social structures and limitations, and also valid for all cases and universally applicable. Such conception of ‘right’, as assumed applicable in human right notion within philosophy discourse, remain largely at variance with state-centric conception of ‘right’ as applicable in other discourses within the social sciences, history, and positive law, among others.

The term ‘human right’ as it is known today is in our view a recent intrusion into philosophy discourse. ‘Human right’ phrase as conceptualised in today’s different discourses was originally referred to as ‘natural right’. It (i.e. human right phrase) is largely a post-World War II innovation but fundamentally both (i.e. human right and natural right phrases) command the same meaning, and very importantly, both are still being used interchangeably in the different discourses, even in philosophy. We shall also use both interchangeably in the course of this effort with the firm conviction that both evoke the same meaning and characteristics.

If human right is assumed to be inherent in every human person, and given the intrinsic fact that the different human persons are phenomenally unequal; including subsisting in varied disproportionate social formations/statuses, it stands to reason that a clear understanding of the concept would demand it being removed from the arena and tendencies of socio-political, religious, and juristic discourses such that have in contemporary times, dominated virtually all writings and views on human right concept; all of which we consider as largely being the products of such discourses that are denuded of the methods, reasoning patterns, and characteristics of philosophy.

In contradistinction to the dominant conception of human right, as espoused in the different reasoning patterns of non-philosophy discourses, we are fascinated by the view of John Hospers on human right concept which is very instructive as it clearly and succinctly illuminates the absolutism of human right as sorely located foundationally within the matrix of philosophy, and the same will remain pivotal to this effort. In his view, Hospers described human right as:

not as a gift from God or by permission of society (permission can always be revoked) but by virtue of his nature as a rational being¹

What stands out clear from the above is that the conceptual framework and definiens of ‘right’, applicable in human right concept, should be such that transcends social criteria such as reciprocity, authority, intention, including others that are associated with such notions of rights that flourish in the juristic, political, and other knowledge spheres of social and other non-philosophy mutations within which the notion of human right has in contemporary times been wrongly associated, espoused, and discussed. The notion of ‘right’ within the above contexts (i.e. outside philosophy discourse), if applied to ‘right’ in human right concept, will definitely vitiate and consequently assault the absolutism and universality inherent, and fundamentally basic to the concept of ‘right’ as applicable to human right concept within philosophy discourse.

It is only when the notion of ‘right’ (within the overall framework of human right concept) remains located and conceptualised sorely within the matrix of philosophy discourse that the assumed characteristics of human right such as inalienability, immutability, and inviolability (which all, irrespective of discourses and discussants including writers agree to, including sloganeering same in a manner that akin to mantra) can be retained as defining characteristics of human right without any epistemological and logical problems. These identified characteristics of human right that completely slough it off from any limitation remain inherent in state-centric conceptions of human right which inherently remain socially and politically determined and predicated.

Human Right and Philosophy

It has been averred within the context of different discourses and even in some of the respective declarations of political states, sub-regional and global institutions like the United Nations, including other regional bodies like the African Union among others, that every human person is a natural carrier of certain inalienable, inviolable, and immutable ‘rights’ which are referred to as ‘human rights’ (see appendix 1 and 2 for the 1948 Universal Declaration of Human Rights and African Charter on Human and Peoples Rights, respectively). Beyond such points of agreement (i.e. inviolability, immutability, and inalienability), all other discussions and views about the nature, contents, and particulars of human right remain varied and even sometimes conflicting largely because of the social, ideologically, historically, and culturally laden nature of these declarations. The result has been that all the specific ‘rights’ and examples adjudged as indices of human right concept are generally consensual, extinguishable, and selective, and thus cannot be said to genuinely fall within the ambit or context of human right concept that can retain such characteristics which, as already stated, include immutability, inalienability, and inviolability.

This obvious distortions and consequent contradictions inherent in today’s general discussion and literature on human right issues have necessitated our current effort towards a renascent approach to the study and understanding of human right notion within the context of its history and philosophy, including the need for a thorough philosophical appraisal of the 1948 Universal Declaration of Human Rights.

In this effort, we shall deploy the tools of philosophy and use the same to articulate what we consider as the different ‘reasoning thrusts’ and views of philosophers and others that would have necessitated such cogitation and consequent intellectual evolution of the notion of possible man’s inalienable right. This effort will span within the different eras in the history of philosophy; that is, we shall, within philosophy’s biosphere, locate what we consider as the epistemological evolution of natural right notion as logical derivative from the ‘humanness’ of every human person. We shall also articulate the view that man’s assumed natural right and the aforementioned characteristics, in relation to every human person, approximate the fundamental thesis of the doctrine of ‘emanation’; that is, natural right, including its defining characteristics inexorably emanate from the ‘humanness’ (or human nature) of every human person such that transcend any phenomenal limitations in absolute manner.

From the above, we have attempted to look at ‘what human right is’ (albeit what natural right is) with the strong espousal of the view that it is strictly a philosophical concept and denuded of any social and phenomenal characteristic. Along this trajectory, it is fundamentally important that we delve into its (i.e. natural right notion) evolution whose knowledge possibly dates as far back as the fifth century BC within the context of Western philosophy, even though we cannot, for now with certitude, assert that there was a conscious knowledge of ‘natural right’ notion with same articulated and espoused.

It is, however, important to note that some of the philosophers in

Reviews for Human Right Concept

[Tamunoiworima Eunice · Rating: 4 out of 5 stars]

This Book is Rich and a Must Read for Students.. Especially Philosophy Students. Nice Book Proff?