The Ontological Dimensions of Human Rights
Ali Asghar Kazemi*
Tehran- May 2011
Contents
Introduction …………………………………………….
The Ontological Perspective………………………
Critical Theory and Legal Ontology ……………
Concept of “Right” in Legal Theory……………..
- Moral vs. Legal Rights………………………………
- Claim Rights & Liberty Rights……………………
Human Rights: Ontological Dichotomy ………
-Indivisibility vs. categorization ………………….
- Universalism vs. Relativism………………………
-State vs. Non-state Actors………………………….
Conclusions ……………………………………………….
Bibliography……………………………………………..
Further Readings………………………………………
Introduction
Much has been written during the second half of the past century about various aspects of “Human Rights,” but students of law, politics and international relations are less acquainted with the ontological basis of this vitally important issue. Since the adoption of the Universal Declaration of Human Rights (UDHR) in 1948 and the subsequent international conventions and covenants[1], we saw increasing criticisms from various circles on the rationale of such extraordinary emphasis on the inalienable rights of people around the world. Some have accused this trend as an unjustifiable intellectualism especially in traditionally backward countries.
In fact, reading through the immense literature on human rights conveys the false impression that this topic is an invention of Western power which is now being used as an instrument of political pressure against traditional and less developed authoritarian societies.
Proponents of universality of human rights believe that while secular cultures have institutionalized this matter as “major article of faith,”[2] we are witnessing a developing crisis in other parts of the world and especially since September 11th 2001 the legitimacy of human rights is under serious threat. [3]
Hannah Arendt[4] once said that “the ontological dimensions of human rights have been largely ignored in favor of the judicial”[5] This essay attempts to look at the issue by examining the matter from an ontological point of view. The main focus here is not “human rights” per se and the conventional norms governing its realm, rather, the aim is to investigate the preliminary requisites to it; that is the ontological basis that embraces man’s inalienable rights by virtue of his very nature as a “human being” and not necessarily as a member of society or the citizen of a political entity called state. [6] In the final account, the question is whether man-disregard of his race, faith, gender, creed and political or territorial affiliation- ultimately exists totally for or as a member of society or exists in some significant sense for himself independent of the socio-political environment? Another important question is whether the entitlement of such rights entails a correlative duty or it is merely a privilege as basic moral guarantees that people shall enjoy in all countries and cultures simply because they are human beings. It will be argued that the problem of human rights is essentially lack of effective enforcement in a disparate chaotic international system. Read full text in pdf
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*- Ali Asghar Kazemi is Former Dean and currently Professor of Law and International Relations at the Faculty of Law and Political Science - Post-Graduate Program, IAU, Science and Research Branch. Tehran- Iran. Dr. Kazemi is a graduate of the French Naval Academy and The United States Naval Post-Graduate School, Monterrey Calif. He holds PhD from the Fletcher School of Law and Diplomacy, Medford, Mass. USA. www.aakazemi.blogspot.com
[1] The best-known are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
[2] Canadian historian Michael Ignatieff, See: Ignatieff, M. (1999), Whose universal values? The crisis in human rights. The Hague: Praemium Erasmianum Essay.
[3] Rob Buitenweg, Human Rights and the Paradox of Humanism 11 May, 2003
[4] Hannah Arendt (1906 – 1975) was an influential German American political theorist.
[5] See: Sarena Parekh, Hanna Arrendt and the Challenge of Modernity, A Phenomenology of Human Rights. Routledg, 2008.
[6]I have borrowed this approach from Raymond Dennehy, The Ontological basis of Human Rights University of San Francisco ,San Francisco, California.
* Ali Asghar Kazemi is professor of Law and International Relations in Tehran-Iran. Students, researchers, academic institutions, media or any party interested in using all or parts of this article are welcomed to do so with the condition of giving full attribution to the author, Scholar -Journal and the Middle East Academic Forum. ©All Copy Rights Reserved.
