Are human rights a social construct
The Influence of Natural Law and National Socialism on the Universal Declaration of Human Rights of 1948
Table of Contents
1. Introductory words
2. Theoretical and philosophical foundations of human rights
2.1. Human rights as a natural right
2.2. Human rights as a social construction
3. Experiences of injustice as the origin of human rights
3.1. Excursus: National Socialism
3.1.1. National Socialism's image of man
3.1.2. Human and civil rights under National Socialism
3.2. The genesis of the Universal Declaration of Human Rights
3.3. The influence of the Nazi era on the Universal Declaration of Human Rights
4. Conclusion: Experiences of suffering - The Origin of human rights?
1. Introductory words
Do human rights have an origin? Can this question even be reconciled with their fundamental ideas? Human rights are described as innate and inalienable, they are seen as pre-state, egalitarian, moral, universal, indivisible and individual (Fritzsche 2009: 16). All of these properties lead to the conclusion that human rights have neither a history nor an origin, that they apply equally to everyone and have always applied. But, is this really the truth? Do human rights really have no history?
Contrary to what the characteristics suggest, the idea of human rights has multiple histories and origins. They span a period from ancient Greece to the late 20th century and are justified and explained in different ways. Generations of philosophers, legal scholars and historians have been following these so-called “genealogies of human rights” and they are still highly controversial today.
One of these genealogies is natural law, which was shaped by philosophers such as Hugo Grotius and John Locke. This can easily be reconciled with the above-mentioned characteristics of human rights: “Natural rights are moral rights” (Mäkinen 2015: 67). But are there actually rights that we only have because we are human? Or is it not more like Jeremy Bentham said in 1843: “Natural rights is simple nonsense; natural and imprescriptible rights, rhetorical nonsense, - nonsense upon stilts ”(quoted from Bedau 2000: 263)?
The advocates of the social construction of human rights see a different, almost opposite origin. They pursue the view that people do not have rights through their species and nature alone, but that these arise through experiences of oppression and sadness. According to this, an individual does not get his rights through being human, but only receives these rights from people through and with history. Only when human rights are disregarded can these arise and develop: “The development of human rights begins with murder and torture, slavery and servitude, that is, the as yet unlimited possibilities to humiliate and oppress people” (Fritzsche 2009 : 24). But can that be? How is it possible that human rights can only be declared after they have been violated?
In addition to answering these questions, the aim of this work is to shed light on the thesis that, although the human rights origins can be traced deep into ancient history, they can mainly be justified by the experiences of National Socialism ( Winston 2007: 288). It should therefore be shown that human rights are not “pre-state”, “self-evident” or “natural”. The great revolutions in America and France in particular showed that human rights were only declared through the rebellion of numerous violated people. Special attention is paid, however, to the “Universal Declaration of Human Rights” of the United Nations from 1948 and the Holocaust: It was only through the human rights violations of National Socialism that today's human rights came into being.
The research question that should then be answered is the following:
To what extent can the “Universal Declaration of Human Rights” of 1948 be traced back to natural law and the experiences of oppression of National Socialism? The political, scientific and contemporary relevance of this question arises on the one hand from our current understanding of human rights and the current struggle for them: Our current human rights of the United Nations differ almost fundamentally from those of the natural law philosophers. The fact that peoples and human rights organizations around the world must stand up for the rights of the oppressed in order to enforce them also shows that human rights cannot seem to be justified naturally.
The answer to the research question is based in particular on concise secondary literature such as "The Universal Declaration of Human Rights: Orgins, Draftin, and Intent" by Johannes Morsink (1999) or the article "Human Rights as Moral Rebellion and Social Construction" by Morton Winston ( 2007). The primary literature of the time will also be the main basis for studying the National Socialist image of man and its human rights violations. But authors such as Charles R. Beitz, Eike Wolgast and Jim Ife will also play an important role in dealing with the research question. This can be explained by the fact that the three scholars give a good overview of the different origins of human rights and, in particular, go into the differences between natural law and social construction. The present work is therefore a qualitative study.
It begins with a theoretical definition of both natural law (2.1.) And the idea of the social construction (2.2.) Of human rights. National Socialism's image of man (3.1.1.) And its experiences of injustice (3.1.2.) Are outlined before finally the genesis of the “Universal Declaration of Human Rights” (3.3.) Is examined more closely. Then the structure and the influence of the experiences of National Socialism on them will be discussed (3.3.), Before a conclusion (4.) forms the conclusion of this thesis.
In this work, human rights are understood as “fundamental rights which are intended to regulate the position of individuals in political communities” (Rieger 2010: 592). They ensure an “enforceable minimum standard of individual freedom as well as political and social equality” (ibid.) And can be defined as freedom rights, political basic rights and civil equality rights (Löw 1986: 199). The present work thus includes the human rights catalog of the “Universal Declaration of Human Rights” from 1948 as the basis of the understanding of human rights: They are indivisible, universal and inalienable (Koenig 2005: 61-64).
2. Theoretical and philosophical foundations of human rights
The following chapter serves to outline the theoretical principles of the different human rights genealogies and to review their respective justification. First of all, the law of nature and reason will be dealt with. In particular, the doctrine of natural law should show that the origin of our current human rights cannot be explained by these theories. In the following, the idea of the social construction of human rights is discussed. These steps are important for the question insofar as they present the various explanatory approaches in a comparative way and can be used as an introduction to the problem of the question.
2.1. Human rights as a natural right
The natural and rational law idea of the origin of human rights assumes that there is an overriding, everlasting right that people have - “simply in virtue of their humanity” (Beitz 2009: 49). The ius naturale understanding of human rights experienced its breakthrough in the works of the English philosophers Thomas Hobbes and John Locke. In addition to these, it was in particular the Dutchman Hugo Grotius, as well as the German philosopher Samuel von Pufendorf and the French Jean-Jacques Rousseau, who gave great importance to the idea of human and civil rights in their writings.
Natural rights are moral rights (Mäkinen 2015: 67). They are "natural" in that they are based on the individual human subject, arise through human nature and are independent of any law or custom of human beings (ibid.). Natural law can therefore be defined as "those moral rights (a) that could be possessed by persons in a state of nature and (b) whose grounds (or justifications) are not merely conventional" (Simmons 2015: 11).
Following the doctrine of natural law, every person around the world should be granted the same rights in the same way (ibid .: 11-12). This universality is justified in particular by “the essential equality of all human beings and the natural unity of the human race” (Ernst 1984: 243). The ius naturale also exists in the "state of nature", i.e. it is also given when neither a state nor any other (state) institution is present (Beitz 2009: 52).
Freedom and equality of people are the central key concepts in natural law. The image of man under natural law accordingly focuses in particular on independent individuals: Every person worldwide can act equally, freely and independently. Guaranteeing and realizing their individual rights is therefore the goal pursued (Wolgast 2009: 33). This human understanding of natural law, which stands out from other beings, can also explain to what extent innate human rights can be accorded such a special status (Ife 2010: 73-74): Natural rights can be made clear due to their ubiquity, inalienability and universality differentiate from positive rights enshrined in constitutions. Accordingly, all people around the world are entitled to exercise these rights regardless of their nationality (Beitz 2009: 49). Based on the assumption that natural law is also overriding every positive law, the legal philosopher Gustav Radbruch takes the view that the legal principle of natural law "is stronger than any legal stipulation, so that a law that contradicts them is not valid is "(1945: 79).
Today natural law is often understood as the (theoretical) moment of birth of human rights (Halme-Tuomisaari / Slotte 2015: 5): Despite the fact that the idea of human rights entered the philosophical discourse in ancient Greece, it can be understood as the legacy of natural law (Beitz 2009: 50). In particular in the United States of America's Declaration of Independence (1776) and in the French Declaration of Human and Civil Rights (1789), natural law as a moral basis found an influence in state politics (Halme-Tuomisaari / Slotte 2015: 5). In particular, rights such as life, freedom and property as well as economic and political emancipation were demanded on the basis of natural and rational law arguments (Ernst 1984: 243).
The concept of ius naturale is often associated with the idea of a creator (Ife 2010: 74, Morsink 1999: 272). Since the development of “natural law” to “natural and rational law”, other origins for these rights can be found - in particular the evidence of reason (Ernst 1984: 244): Only through the enlightenment thought that human beings is able to think and act autonomously, the human rights of natural law could receive their full validity - but also numerous natural law advocates nothing was further "than the denial of the religious basis and conditionality of law" (Bachof 2014: 6). The declaration of independence of the United States of America from 1776 makes explicit reference to this idea as well as to the universality and the self-evident nature of rights: “We hold these truths to be self evident: that all men are created equal; that they are endowed by their Creator with certain unique rights; that amog these are life, liberty and the pursuit of happiness "(Declaration of Independence, 1776). The French declaration of human and civil rights of 1789 speaks of “natural, inalienable and sacred rights” (Déclaration des droits de l'homme et du citoyen, 1789): Not the French, but every citizen and every person should addressed with the declaration (Wolgast 2009: 62).
However, these findings are followed by the question of how, from the point of view of natural law, it can be explained that human rights develop or how such further development is justified? If we “take the truths for granted”, why were they only declared in 1776 (Hunt 2015: 111)? And above all: How can human rights violations be explained when the equality and freedom of all human beings is enshrined by nature?
Human rights that are justified by a “top-down” approach based on natural law, are considered innate and are established in the human being, cannot adapt to the temporal circumstances. They are neither questioned nor can arguments be found for their development. Natural law, however, draws its power explicitly from its pre-state claim. A possible change and further development of the rights would amount to a negation of the natural law. The emergence of rights can be explained by this philosophical justification rather theoretically and not practically, historically and politically.
In his work “The Last Utopia: Human Rights in History”, Samuel Moyn also writes that the general validity and universality of natural law “does not bear some affinity to the contemporary forms of cosmopolitanism” (2010: 20). Natural law is based too much on belonging to a political community to be able to claim universality (ibid .: 12). It is true that natural law found its moral content in the declarations of the 18th century, and the French declaration in particular speaks of a universally applicable law. But since neither in the United States of America nor in France were rights equally accessible to everyone (women, slaves, etc.), nor was there an international document that actually accorded the same value and the same rights to every person worldwide the origin of universal human rights cannot be explained by natural and rational law. It was not global issues that gave rise to rights, but rather cultural and state aspects: cultural rights are often local, but never universal (Gregg 2012: 18).
On the basis of the genesis of the "Universal Declaration of Human Rights" from 1948 (see also Chapter 3.2.) It can finally be shown that also and especially today's human rights cannot be explained by arguments based on natural law: The preamble of the declaration allows the conclusion that that the delegates of the Human Rights Commission had an understanding of human rights based on natural law when they speak of “innate dignities” and “inalienable rights” (UDHR 1948: preamble). Likewise, the first article of the declaration seems at first glance to be a simple adoption of the French Declaration of 1789 and natural law arguments: “All people are born free and equal in dignity and rights. They are endowed with reason and conscience and should meet one another in a spirit of brotherhood ”(ibid .: Art. 1). The fact that individual states such as Brazil or the Netherlands tried to legitimize the idea of human rights with the image of God and human nature also reflects this assumption: They drafted the first versions of the declaration with explicit reference to natural law or to God (Morsink 1999: 284 -290). Their argument was that the majority of the world's population believe in God or a supreme being “and would therefore be pleased to see human rights so grounded” (ibid .: 285).
But most of the delegates wanted to avoid justifying the “Universal Declaration of Human Rights” based on natural law, philosophical, metaphysical or theological (Koenig 2005: 62). With a view to the universality of the declaration, the proposal of the Christian-influenced representatives was negated by many representatives: Communist states such as China, the Soviet Union and Chile in particular rejected the idea in principle. China, for example, justified the non-Christian justification by stating that the state represented a large part of the world's population, “with ideals and traditions that differed from the Christian world” (ibid.). Other representatives - including Western delegates - argued that not every person and state is religious, but that the declaration should be accessible to all heads of state and people worldwide.Ultimately, it should not lose its claim to universality because religious minorities could feel excluded (Morsink 1999: 286, 288).
So how could and should human rights ultimately be justified? Did they come from the people themselves? Or should they be justified religiously or by natural law (Normand / Zaidi 2008: 186)?
After long discussions and attempts to find compromises, the representatives finally created a secular declaration, "one in which no value is allowed to trickle down from above" (Morsink 1999: 283, 289). The draft of the natural law foundation of human rights was also rejected by 16 to six votes and eight abstentions (ibid .: 288): "The God and nature camps were too polarized to reach agreement, and the final compromise dropped reference to either" (Normand / Zaidi 2008: 187). The delegates agreed that they did not need any philosophical or natural law reasons to justify the declaration. It was above all the experiences of National Socialism that were responsible for formulations such as “innate” or “inalienable” or the content of rights (Morsink 1993: 358): “These are not mere Enlightenment reflexes, they are deep truths rediscovered in the midst of the Holocaust and put on paper again shortly thereafter "(ibid., see Chapter 3.3.). The representatives of the Human Rights Commission ultimately did not take over the human rights legitimation of natural law. But its morality in particular can be found in the articles of the “Universal Declaration of Human Rights” (Morsink 1999: 283).
2.2. Human rights as a social construction
In contrast to the natural law assumption, the genealogy of social construction assumes that human rights only arise through historical experiences of injustice - that is, they are not given by nature. Instead, their discovery and development are preceded by pain, oppression and humiliation: according to this, human rights are the result of a rebellion against unjust experiences of suffering (Fritzsche 2009: 24).
In order to understand how human rights can be explained on the basis of the social constructivist basic idea, it is necessary to look at the significance of the oppression of minorities as the foundation for the emergence of human rights (Winston 2007: 286). In particular through the “bottom-up” approach, human rights can arise following this social constructivist perspective. For Morton Winston, the idea of the bottom-up development of human rights is therefore "the single most satifying and philosophically, politically, and historically adequate account of the nature, orgin, and justification of human rights" (ibid .: 284).
According to this understanding, today's human rights are the normative answers to historical experiences of injustice, repression and political struggles (ibid .: 286, 293, 295): “[B] ehind all law is someone's story - someone whose blood, if you read clo - sely, leaks through the lines "(MacKinnon 1993: 59). Special rights - such as in particular the human rights to life, freedom and security - result from moral reflection and assessment of these unfortunate experiences (Winston 2007: 291): They can therefore be understood as a socially constructed attempt to address these experiences in the Avoid the future (ibid .: 286). As a product of the human understanding of morality, human rights therefore try to achieve the goal of human emancipation (ibid .: 293). Niklas Luhmann therefore speaks of the fact that human rights can be explained by the “evidence of legal violations” rather than by “the clarity of the bases of validity and the precision of the corresponding texts” (Luhmann 1993: 577). But human rights violations do not only occur during armed conflicts and in autocratic systems of rule. These experiences of oppression can also be found in everyday life in every country (MacKinnon 1993: 62). It is therefore particularly important for the advocates of the social construction of human rights to recognize them as such and to expand the international understanding of human rights (Winston 2007: 282). Sociology and anthropology in particular therefore play a special role in identifying and researching human rights (Ife 2010: 76). The American political scientist Iris Marion Young has also defined a catalog of the effects of human oppression. In addition to the exploitation and marginalization of minorities, this also includes powerlessness and arbitrary violence (Winston 2007: 288). These findings make finding new human rights resulting from repression less complicated (ibid.).
But human rights are not less true because they are socially constructed - on the contrary: Morton Winston compares them with the idea of time zones, money or national borders. These only exist because humanity has collectively agreed on them and declared them to be “true”. Just like other objects constructed by humans, they are able to develop further, detaching from their original function (ibid .: 295).
The idea of the social construction of human rights ultimately understands them as dynamic development processes (Kirste 2013: 127). They can only arise through and with history. Without these acts of development, today's so-called second and third generations of human rights would not have been able to develop (ibid.). These “newer” human rights include economic, social and cultural (2nd generation) as well as collective rights (3rd generation) (Fritzsche 2009: 25).
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