HUMAN RIGHTS AS IDEOLOGY By Ouko, John Otieno A DISSERTATION Submitted to Michigan ...

138 Pages·2011·0.37 MB·English

HUMAN RIGHTS AS IDEOLOGY

By

Ouko, John Otieno

A DISSERTATION

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

DOCTOR OF PHILOSOPHY

Philosophy

2011
ABSTRACT

HUMAN RIGHTS AS IDEOLOGY

By

Ouko, John Otieno

This dissertation inquires into whether there can be a way of conceiving human rights
that will address the three main challenges bedeviling the idea of human rights, namely:
a) establishing a standard of determining what qualifies as a human right in order to avoid
human rights inflation and thus establish rights minimalism; b) whether it is facts about
the subject’s nature that ground the rights status (rights internalism) or whether rights are
externally grounded; c) and whether human rights are universal or relative. After
examining the works of the key figures in this area including contemporary ones like
John Rawls, Charles Beitz, Thomas Pogge, and Amartya Sen, and establishing the
shortcomings of their positions, to address the aforementioned threefold need, I have
constructed and defended a position that human rights is a political ideology with moral
inflection, and that human rights ideology is dual-natured in the sense that it has both
positive and negative functions that revolve around the key issues of domination,
discrimination, and exploitation. This position of mine that is a form of universality based
on rights externalism sets a clear standard of determining what counts as a human right
and is minimalist thereby avoiding the problem of human rights inflation.
Copyright by
Ouko, John Otieno
2011
Dedicated to my mother for her exemplary self-discipline.

iv
ACKNOWLEDGEMENTS

I owe a special debt of gratitude to my adviser, Stephen Esquith, for his guidance
throughout my graduate carrier and for directing this dissertation. He has not only been
very resourceful but indeed an invaluable professional mentor.

I am also grateful to my committee members: Richard Peterson, Paul Thompson, and
Frederick Gifford. Peterson’s questions and comments stimulated me to think harder
about my ideas. Thompson helped me to connect my philosophical ideas with the real
world. Gifford’s comments were constructive.

To all those who supported me in one way or the other, do believe how truly grateful I
am.

v
TABLE OF CONTENTS

INTRODUCTION 1

CHAPTER ONE: CONTEMPOARARY DEBATE: UNIVERSALIST
VERSUS RELATIVIST ARGUMENT 9
Introduction 9
The question of Origin 10
Genetic Fallacy 12
Individualism versus Communalism 15
Relativity, Universality, and the Idea of Human Rights Foundation 26
Conclusion 30

CHAPTER TWO: INTERNALIST VERSUS EXTERNALIST ARGUMENTS 32
Introduction 32
Background to Internalism/Externalism Debate 32
Rights Internalism 34
On Rationality: Immanuel Kant’s Arguments 34
Humanity Argument 37
Personhood and Human Rights in an African Context 40
Reason and Politics 42
More on Rights Externalism 45
Conclusion 49

CHAPTER THREE: A MINIMALIST CONCEPTION OF HUMAN RIGHTS 50
Introduction 50
John Rawls’s Human Rights Minimalism 50
Charles Beitz on Consensus and Minimalism 55
The Possibility of a Human Rights Minimalism Based on a Consensus 59
Human Minimalism and the Incompleteness of Human Rights Project,
Concluding Remarks: 64

CHAPTER FOUR: SECURING HUMAN RIGHTS 68
Introduction 68
The Question of Obligation 69
Obligation: National Level 70
Obligation: International Level 73
Violation/ Disrespect of Human Rights 86
On the Question of Obligation and Violation: Concluding Remarks 88

CHAPTER FIVE: HUMAN RIGHTS AS IDEOLOGY 90
vi
Introduction 90
Ideology: Negative and Positive Connotations 90
Human Rights as ideology: The Positive Functions 100
Human Rights and the Notions of Domination,
Discrimination, and Exploitation 104
Domination
Human Rights as Ideology: The Negative Functions 109
Conclusion 114
CHAPTER SIX: CONCLUSION 115
BIBLIOGRAPHY 120

vii
INTRODUCTION

A new ideal called human rights has become dominant in the world stage. It unites the
left and the right, the pulpit and the state, the government minister and the rebel, civilians
and combatants, et cetera. The idea of human rights has become a legitimizing norm for
national governments. No government can admit that it is a violator of its people’s human
rights. Different ideas about human rights have been presented by human rights theorists.
These ideas don’t seem to be comprehensive enough to address the major challenges that
face the idea of human rights, which I now proceed to highlight here below.

One of these areas is on whether human rights are relative. My focus will be on
normative cultural relativism since it is the most extreme aspect of cultural relativism
which states that culture provides absolute standards of evaluation; whatever a culture
says is right is right -for those in that culture. A view opposed to this is that human rights
are universal. There is lack of agreement on these opposing views.

The alleged relativity of human rights is based on the claim that different human rights
concepts should be based on different cultural traditions and comprehensive doctrines. In
this regard, by and large, human rights theorists from the developing world, especially
Africans,1 have generally propounded and advanced relativist theories, as opposed to

1 Here I have in mind the work of people like Kwasi Wiredu, Isha Shivji, Abdullahi, An-
Na’Im, Claude Ake, Josiah Cobba, Fasil Nahum, Osita Eze, among other
1
their Western2 counterparts who, by and large, have rejected relativity and adopted
universalist approaches. On the contrary, a good number of African scholars hold that the
idea of universal human rights are Western in origin and therefore alien to African
culture. For example Makau Mutua holds that the Western human rights corpus
privileges the individual at the expense of the community.3 The preceding proposition is
based on his contention that Western societies are individualistic and African societies
are communalistic and that universal idea of human rights as it originated in the West
promotes individualism which is contrary to an African communalistic way of life.

Another area that remains contentious pertains to the grounding of rights: the question is
whether these rights are bestowed on us by a community of persons and in effect that
there are no rights that exist prior to and independent of some form of formal or informal
social recognition of the ways of acting and being treated by a community of persons
(this is what will be referred to as rights externalism), or whether it is solely facts about
the subject’s nature that ground the rights status (a perspective referred to as rights
internalism).4

2 Here I am thinking of the works of people like Jack Donnelly, John Finnis, Alan
Gewirth, among others.
3 Makau Mutua, Human Rights: A Political and Cultural Critique (Philadelphia:
University of Pennsylvania Press, 2002), p. 67
4 See Derrick Darby, Rights, Race and Recognition. Cambridge: Cambridge University
Press, 2009. P. 44.

2
The clearest literature on the grounding of human rights is found in Western literature.
Most scholars in the Western liberal tradition argue that human rights are rooted in a
universal conception of human nature; that is, human beings have rights because they are
rational, autonomous, they have a soul, et cetera. Even for African scholars, like Kwasi
Wiredu, who argue that an African idea of human rights is grounded in personhood also
mention that according to the Akan (his ethnic group) there is a divine element (akin the
Western idea of a soul) rooted in personhood that grounds human rights.5 This grounding
of human rights on facts about the subject’s nature is referred to as rights internalism. As
Derrick Darby has put it,
“rights internalism is the idea that it is solely facts about the subject, or more
generally facts about the subject’s nature that ground the rights status. Hence from
this perspective, for any moral right to be correctly ascribed to some individual,
that individual must possess a certain nature or some property, the possession of
which is taken to confer rights….My rights spring from my nature and being; it
depends on no one else, and is conferred by no one else.”6 This (internalist)
outlook is thus ontological.

5 For details see Kwasi Wiredu, “An Akan perspective on Human Rights in Cross
Cultural Perspectives Abdullahi An-Na’im and Francis Deng, eds. (Washington: The
Brooking Institution), pp. 243-244.
6 Darby, Op. Cit, P. 44.
3