Wednesday, 5 May 2021

LLB Dissertation

 

Without a Big Bang:
Reclaiming the Universe in Universal Human Rights Theory

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Table of Contents

 

Abstract                                                                            3-4

Chapter 1: The Warning                                                     5-7

Chapter 2: The Four Schools of Human Rights theory      9-10

Chapter 3: Cultural Relativism                                       11-13

Chapter 4: The Establishment and Cultural Relativism   14-15

Chapter 5: Subjectivism                                                 16-18

Chapter 6: Objective Morality pt 1: Ethical Errors           19-22

Chapter 7: Objective Morality pt 2: Foundation & Universalism

                                                                                     23-25

Chapter 8a: Systems contrary to Human Rights                  26

Chapter 8b:                                                                        27

Chapter 8c:          Three Propositions for the Reformulation of Universalism: A critique                                                 28-32

Conclusion                                                                    33-34

Bibliography                                                                  35-36

 

 

 

 

 

 

 

 

 

 

Abstract

There remains an ongoing dispute among academics regarding the history of the origins, nature, form, and development of human rights.

Traditional/Classical theorists contend natural rights are part of a rationally retrievable natural law for the human condition and they are pre-existent, self-evidential, natural, inalienable and universal in pertinence and in application – that it has been an inherent aspect of human existence and as civilization has progressed, communal responsibility led to recognition of rights and obligations from belonging to and participating within a social environment. These inherent principles became more pronounced with the increased complexity of social interaction and social structures as legislators further reflected this natural law to aid the citizen towards personal flourishment and the general common good.

Contractarians[1] disagree: They contend that if there were any pre-existent natural rights they were subsumed into a society under a sovereign authority and rather than legal rights originating from an underlying morality, legal rights which are exclusively afforded through society [and the historical development of civilization] are the sole origin of a corresponding morality of human rights.

Many modern commentators when speaking of Human rights  – especially those speaking from outside the legal disciplines – claim that contrary to classical assumptions of a natural historical progression of rights – human rights [as now established] are dissociate from anything prior to the Second World War [and even post-cold war] and distinctly divergent from the classical notions of natural law and natural rights and even the ‘rights of man’ principles of the Enlightenment.

Although this Assignment was originally intended to be one of historical research into proving the claims that there are historical origins to human rights prior to the 18th Century revolutions via research into natural law and natural rights, it soon became apparent that the major contention of human rights today is the problem of Universalism versus Cultural Relativism and the underlying modern jurisprudential and meta-ethical issues which underlie the claims by opposing sides.

Hence this dissertation commences in Chapter 1 with a crucial speech given by Dr Shashi Tharoor on Universalism in jeopardy

Difficulties arise in the fields of legal academia when it comes to classification of terms and the congruency of meaning within those terms. Even concepts such as “morality”, “rights”, “universalism” and “cultural relativism” mean very different things dependent upon the underlying ideological, philosophical, or jurisprudential positions the particular academic referring to them holds. Professor Dembour has provided an excellent template for the variant Human Rights schools which will be detailed in Chapter 2.

Chapter 3 Details the rise of Cultural Relativism.

Chapter 4 Considers the legal and political establishment’s eagerness to adopt not merely Cultural Relativism, but its extrapolation into the realms of ethical relativism. It is this author’s contention that dissociation from any absolute moral theory or universalist human rights narrative is a natural consequence of legal positivism and utilitarianism.

Chapter 5 Conjectures that the mid-20th Century pre-occupation with Subjectivism aggravated and accelerated the move towards the legal system’s dissociation from morality.

Chapter 6 Begins an exposition of an objective moral theory resurrecting natural school principles to provide a groundwork for universalism first by rejecting common modern ethical errors.

Chapter 7 Returns to the objective moral theory by proposing an ethical route from basic moral principles through to the notion of rights.

Chapter 8 is in three dissociate parts
the first being an exposition of Legal Positivism & Utilitarianism[2] and their incompatibility with Universalist human rights
the second being a completion of Dr Tharoor’s rebuttals of objections to Universalism
the third part being a consideration and critique of three modern examples of human rights theorists who seek to reinvent a Universalist concept of Human Rights but which ultimately reject the Universalist principle in theory and practice,

The Conclusion will briefly summarise the argument that an objective moral theory is possible – has been in existence for over 2,500yrs and is a position which justifies and consolidates the principle of Universality in human rights.     

 

 

 

 

 

Chapter 1: The Warning

In 1988 at a Human Rights Conference held in Portugal, Diplomat Dr Shashi Tharoor[3] warned his audience that they were living in the calm before the ideological storm regarding the acceptance of the universality of human rights.

Since the horrors of the Second World War a nation state’s treatment of its citizens was no longer merely their own business and the world had accelerated towards establishing the Universal Declaration that “all human beings are born free and equal in dignity and rights” and subsequent international agreements gained broadscale ineluctable acceptance as binding norms of state behaviour as a common standard for all peoples and nations without exception.

Yet due to this rapid development in human rights law and its global integration and application there now existed an institutionalised hubris in treating the Universalism of human rights as established, axiomatic and unassailable.

This complacent assumption that “universal, natural and inalienable rights” was an uncontroversial “non-issue”, that there was an unambiguous “nothing left to prove” – and that any scholarly opposition to the established dogma of the universality of human rights was minimal, tendentious and cynical – was oblivious to the increasing amount of scholarly and theoretical writings which didn’t take universality for granted; but rather challenged the notion on philosophical, ideological, religious, cultural, moral and practical grounds:

Is anything in our pluri-cultural, multipolar world truly universal? Does…universality not presuppose a rather unitary view of the world, or at least of how it should be?...Isn’t human rights an essentially Western concept, whose imposition on the developing world would involve…ignoring the different cultural, economic and political realities of the Third World? Can the values of a consumer society be applied to societies where there is nothing to consume? Wouldn’t a starving, sick and ragged man gladly trade his right to oppose the government or move the courts for a bowl of rice or a roof over his head? Isn’t talking about universal rights rather like saying that the rich and the poor both have the right to fly first class and to sleep under bridges? Can developing countries afford to contend with the assertion of individual rights when they are coping with the overwhelming priority of mass uplift? Don’t human rights as laid out in the international covenants ignore the traditions, the religions, and the socio-cultural patterns of the Third World? When you stop a man in traditional dress from beating his wife, are you upholding her human rights or violating his?”

Tharoor posited nine categories of objections to Universalism:

1.   Philosophical: Taking two forms:
a] The presumption of cultural relativism as an empirical objective fact in which all rights and values are limited by subjective cultural perception and by consequence all moral understandings of right and wrong are subjectively relativist which, according to Pannikar, universalist claims are grounded upon an exclusively anthropocentric vision of the cosmos and reliant upon some highly conjectural (religious) transcendent factor which is far from self-evident. Therefore there are no universal underlying principles or modes of application.
b] Universal rights do in reality exist but they are so limited that they become meaningless in practice – the [exclusively needs-based] rights to life, liberty and the pursuit of happiness do not axiomatically include a vast array of established human rights and all these secondary rights are not universal by default nor been established through sound justification.

2.   The Origin of the Universal Declaration - being Western it has been accused of displaying an elitist moral chauvinism with ethnocentric bias with an exclusion of concerns for developing nations, indigenous peoples, and unrepresented sociocultural minorities.

3.   A mercenary exploitative western agenda - appeals to human rights might be both perceived and become manifest as a Trojan horse for a policy of western interventionism enforcing western ideologies and practices.

4.   Ideological - Individual autonomy free from state interference [The Libertarian “right to private property, freedom of contract and to be left alone”] versus the Marxist communitarian view that the needs and obligations of society outweigh and transcend any right belonging to an individual.

5.   Cultural identity – many non-western cultures deem traditions, customs and duties to the community as overriding personal rights; where an individual is, by their very birth, in kinship with extended family, community, tribe and nation and subordinate to the corresponding duties to respect, restraint, responsibility and reciprocity bearing precedent over individual rights.

6.   Ethnocentric Cultural Bias – together with many presumptive western citizen’s rights to education, healthcare, a welfare safety net etc may not be able to be provided in developing nations; there are also considerations of western identification of presumed rights which conflict with traditional cultural practices [e.g. abortion, sexual promiscuity versus polygamy, arranged marriages etc]

7.   The Clash with Religious “Infallibility” - The enforced compromise to conformity of religions into accepting an established secular lowest common denominator which conflicts with their heretofore precedential moral and sociocultural authority.

8.   A non-Universal forum - Human rights are becoming increasingly dependent upon elitist ideological debating among the privileged minority in governments, political activism, and academia rather than involving the entire world. Thus, those who compile the proposed “universal rules” are dissociate and oblivious to the real concerns of alienated majority and the asserted rules are not “by, for or of the people”.

9.   The Developing Country priorities objection Human rights being a “luxury” secondary concern for developing world nations preoccupied with more urgent concerns such as disaster, famine and armed conflict relief or seeking political cohesion after achieving independence appears to make these rights more aspirational than universal.

Professor Tharoor makes a strong rebuttal against these challenges to human rights universalism,

To the Western Origin & Agenda Objections – This is weaker than first presumed in that there were active and highly influential contributions from the developing world e.g. Ghana and Nigeria were the powerbrokers in the ratification of the East-West[4] covenants. The developing world has aspired and accelerated towards imitation, adoption, and integration of these allegedly “western rights” from a “western establishment” United Nations, which has irrefutable universal credentials.

To the Religious Objections – On the contrary human rights are fully compatible in their secular understanding as they are among all faiths. Although historically and geographically divergent in interpretation there are certain credal verities applicable to all humanity to which all faiths aspire. Even the vociferous denunciation by Iranian[5] representatives of Judaeo-Christian and Western Enlightenment values being incongruous with Sharia law, the 1980 Kuwait Conference of Jurists appealed to Islam being the first to recognize human rights in the 6th Century[6].

We will return to the responses of Professor Tharoor when they correspond with the principles under consideration.

To begin to scrutinise academic arguments, one must first appreciate the individuals concerned, their schools of thought and their apprehension, discernment, and deliberations of issues; assessing possible overlapping of accompanying theories or potential ideological overemphasis of axioms or conditional biases. We are indebted to Prof. Dembour for having already provided the groundwork to make this exercise possible.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter 2: The Four Schools of Human Rights Theory.

After many years of intensive research and analysis of human rights literature; Professor Marie-Benedicte Dembour[7] proposes classifying human rights academia, legislators, activists, policy makers etc into four schools of thought:

1.   The Natural School[8] – human rights are absolute proscriptive ‘negative obligation’ entitlements derived from a transcendent natural character grounded in an objective morality from natural reason independent from social recognition. These derive from underlying objective rationally concluded natural law and natural rights theories. The Law exists from a morality in direct continuation from transcendental natural rights and its development is a contiguous unfolding of recognizable existent rights as they are honed and created. Human rights exist by the very nature of being a human being and are thus universal.

 

2.   The Deliberative School – human rights derive from human origins as a social contract and communal code of conduct – an aspirational legal/political constitutional standard for optimal functioning and flourishing within society to be promoted as universal “best practice”.
This is sourced within constructionist legal positivist, rule utilitarian and “soft”/”narrative” cultural relativism schools. The universality of human rights is aspirational in that it progresses by means of dialectical debate, democratic decision and legislative application with fair adjudication – the law exists exclusively in substantive and procedural realms and its rule is the sole existent source of human rights; outside which there is no foundation. Human rights are not a personal possession but modal deliberations of a liberal, just, and democratic political legislative structure and are universal insofar as being an aspiration towards a broadening consensus.

3.   The Protest School Human rights reside in the narrative of restitution and restorative justice for the poor, underprivileged, dispossessed, and disenfranchised. Human rights are found in evidential recognition of our moral obligation in contesting for the poor and oppressed and although transcendental in being able to become a realised objective, are part of an inexhaustive war of attrition against injustice. Human rights as presently established and delineated are only a beginning of progress towards this goal and are to be treated with suspicion in that they may be normalising and numbing the international social conscience, favouring an elitist bureaucratised compromise resolution which may perpetuate injustice rather than resolve it. Unlike natural school proponents the protest school does not see human rights as unfolding from pre-existent rational principles, but evolving and protean according to new demands against new injustices. Universalism must be acknowledged as “a reality in potency” it is a utopian ideal to be made manifest. They are committed to a human rights universality which is yet to [and may never?] exist. It is predominantly socialist, secularist and multiculturalist.

4.   The Discourse School are nihilists towards human rights; for “hard” cultural relativism is the only empirical, self-evidential reality. The world is one of incommensurabilities of opinions, tastes, ethics and argots; not one of objective values. There is no objective morality and therefore human rights are mere attempts at a transformative narrative – only power politics exists among conflicting oppressive hegemonies enforcing their arbitrary self-interested concepts of human rights to strengthen their power structure - with counteractive ongoing retaliation against them and emancipation from them via differing human rights narratives of the generally oppressed and disenfranchised. Human rights, however flawed in principle, however self-contradictory in their premises and however naively doomed to failure; are therefore a potentially valuable tool for ideological progress and each may have mercenary merit or opposable detriment towards that political end of repositioning the power balance. To appeal to the universalisation of rights is an absurd and dangerous form of obscurantism; creating a façade of self-justification for the self-interest of power hegemonies. Only if human rights contain an opportunity for power adjustment through their coercive narrative can its ideologically re-evaluated application be justified as a “transformative” universalism towards conformity.

 

Although each school utilises the term “universalism” when referring to human rights, it soon becomes apparent that only the natural school believes in universal human rights as an objective and existent reality. The Protest school aspires to them, the deliberative school aims to create them, the discourse school wishes to coercively apply them – but for each of them outside the classical natural school; universal human rights do not exist.

Further investigation of the deliberative and discourse schools has led to a definable common ideological congruency where they ground every established principle upon two interwoven principles:

Subjectivism and Subjectivist Cultural Relativism [i.e. grounded in Moral Relativism]

Chapter 3 – Cultural Relativism

The term “Cultural Relativism[9]” is accepted today among the majority as an irrefutable established empirical reality. Proponents adhere to the notion that Cultural Relativism is evidential proof that:

1.   There are divergent cultures across the globe with dissociate traditions, customs, taboos, marital practices, religions, aesthetics, hegemonic structures and forms of laws, due process, and inflicted punishments. [This is of course axiomatic]

2.   Therefore, as the politics and laws are different i.e. relativist, so too must be their “practical reasonings” for ethical application in creating those structures laws and policies [Ethical Relativism] – and therefore the underlying moral principles for those applied ethics [Moral Relativism]

3.   Conclusion: Because there is incontestable evidence for cultural relativism – this by default proves that all morality is relative and therefore a sociocultural construct.

There are many objections to this line of argumentation but the first that must be mentioned is that when the term was first coined in the early 20th Century it meant no such thing.

Cultural relativism sought to appreciate the values and merits of divergent cultures. It began under the Franz Boas[10] school of anthropology/ethnology as a critical/heuristic methodological device to assess cultures historically [vertically] and geographically [horizontally].
It was not a theory of anything – it was a method.
Cultural Relativism never meant moral relativism.

Secondly the term’s appropriation by the modern Marxist and derivative ideological schools may seem counterintuitive for Marx was a dialectical materialist and behaviourist – he believed historical socio-economic factors produce every aspect of society including its secondary cultural aspects – human beings are programmable automata and any resultant culture follows from this and has no authentic traditional value independent from economic forces.
An example of applying this principle of cultural intervention is the Nepreryvka project in early Leninist Russia where a Saturday holiday and a Sunday of religious observance and family interaction, was perceived as placing the Soviet nation’s ideological purity at risk. The week was changed to five days and each citizen was designated one of five colours in which they could take a work holiday according to the corresponding colour day – ensuring that at any family or social gathering 80% would always be absent and state-loyalty jeopardising cultural influences like nuclear and extended families and communities and special religious festivals would crumble.
The project failed in a matter of years the cultural ties within the community being too strong.

Marx’s dialectical materialism is also reliant upon Hegelian Idealism where an historical Geist [an evolutionary semi-divine rational regulating spirit of progress] was manifest and inherent within the individual, the community, the nation and indeed the cosmos]

Furthermore, Cultural relativism provides an opportunity for an effective political weapon against homogenising and industrialising forces of globalism and capitalist exploitation of the developing world which may have ideological impact within the political arena but with little benefit to the actual cultures themselves.

Professor Tharoor’s response to the Cultural Objection[11]

“..the traditional culture that is sometimes advanced to justify the non-observance of human rights in practice no longer exists in a pure form at the national level anywhere
Within cultures there may be varying emphasis in interpretation or applications and there will always be tensions between group rights and individual rights but appeals to cultural identity have been a weapon utilised by unscrupulous leaders to silence and oppress its citizens.
“You cannot impose the model of a modern nation state cutting across tribal boundaries and conventions, and then argue that tribal traditions should be applied to judge the human rights conduct of that modern state. The increasing similarities in the way states organize themselves and regulate the behaviour of their citizens has led to the need for similarities in human rights expectations and standards everywhere…there is nothing sacrosanct about culture anyway. Culture is constantly evolving in any living society, responding to internal and external stimuli…Those who freely choose to live by and be treated according to their traditional cultures are welcome to do so provided others who wish to be free are not oppressed in the name of a culture they prefer to disavow” [Citing Professor Jack Donnelly]:
“life, social order, protection from arbitrary rule, prohibition of inhuman or degrading treatment, the guarantee of a place in the life of the community are central moral aspirations in nearly all cultures”

In conclusion Cultural Relativism[12] was never meant to be a vindicating theory to justify the abandonment of progress and development and imposing pseudo-romantic Rousseau/Margaret Mead notion of the noble savage escaping from ‘civilized’ restrictions. Nor has it ever claimed to be a justification apologetic or rationale for moral relativism. Yet why do most contemporary Human Rights theorists of the Deliberative and Discourse schools presume it means exactly that? Why should a predominantly legally positivist and utilitarian establishment presume that Cultural Relativism is a self-evidential term identical to Moral Relativism?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter 4: The Establishment and Cultural Relativism

Legal Positivism has been in the ascendant since the time of Bentham and Austen – the legal system is therefore considered to consist in its constituent parts and its efficient procedural processes. Any underlying legal theory becomes reliant upon principles of process and application rather than morality or any achievable ends outside a utilitarian application of an overriding policy covering the entirety of the legal system. Theoretical principles regarding the nature and aim of the law itself are deemed to now be superfluous and obsolete – even the “Rule of Law” which was once seen as the foundational principles of:
“what is law, why have it, by whose authority, and what [if any] rights, responsibilities, obligations and limitations belongs to the law and the system?”
has become:
“what are the necessary criteria for the functioning of the legal system?”

Utilitarianism has also become the most prevalent and expediently effective method in forming a cross-party legislative consensus [in being reactive rather than proactive – practical rather than theoretical], creating a rationale for intervention [avoidance of detriment or harm – improvement in utility and social satisfaction] and in implementing executive and judicial legal policy [i.e. “ we do not do something because X is right or wrong – rather this is effective, this is promotive, this is a deterrent, it is purposive in approach towards achieving Y”]

The founder of Utilitarianism[13], Jeremy Bentham considered the notion of universal inalienable natural “Rights of Man” to be “nonsense upon stilts” - as the only provider of rights and demander of obligations can be an authority appointed with a mandate to legislate and administer that justice accordingly – the Sovereign power.
The Deliberative school concurs – that which it terms as human rights are mere consensual policy absorptions which can be normatively applied until expedient or emergency policy demands otherwise. Human rights to the Deliberative school are exclusively under their auspices and control.
When extreme circumstances demand, the ostensible deontological nature of a human right being an established normative human right reaches an elastic limit where necessity demands the intervention and application of utilitarian remedies “for a greater good”. Fundamental human rights are considered a gift of the state which it may withdraw absolutely should circumstances necessitate. Everything becomes derogable and fungible.

Legal Positivism turns the legal system into a hermetically sealed institution with neither adherence nor deference to any external factor or any principle which is not inherently arbitrated and controlled by the legal system itself.
Utilitarianism avails of pragmatism and removes any awkward adherence to clarity, consistency or established irrevocable moral principles.

Cultural Relativism being identified with Moral Relativism suits the ideological premises and functions of Legal Positivism and Utilitarianism because within such a paradigm it can retain its holistic system-integrity and be the sole regulator of its own system.
That Cultural Relativism should change its ambit from a method to a theory and be perceived in academia to have entered the realm of ethics and morality was fortuitous to the Deliberative and Discourse schools.

A Moral code which established that Human rights were natural, rational, universal, inalienable and self-evident would have independent control and authority over any legal system or formulators of policy. This would be deemed untenable and intolerable to their very idea of the law.

The question thus arises:
“How did it happen within the fields of post war academia and the establishment for the concept of cultural relativism to change so rapidly and be misinterpreted and misrepresented to mean moral relativism?”

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter 5: Subjectivism

One possible answer for cultural relativism’s appropriation into the field of morality via ethical relativism might be the contemporaneous and corresponding rise of subjectivism in the post war era. Where previously an individual could always rely upon their tastes, preferences, and opinions to attain a unique identity – they relied upon their senses and their reason to explore the universe – but with the rise of the post-enlightenment movement in the philosophical schools, the arts and social and political sciences and the rise of psychology the individual resorted to self-analysis and thus they could no longer depend on reason.
As CS Lewis opined it was like taking one’s eyes out to look at them – the reasoning mind which was heretofore trusted as a reliable source of sensory truth and logic now becomes a brain of chemicals and electrical impulses and a mere product of genetics and random evolutionary processes and rather than fed by knowledge and experience to acquire wisdom it was now portrayed as an untrustworthy source undermining a true version of reality as it was reliant on sociocultural forms of nurture and experience

In eagerness to retain one’s identity; popular cultural, academic and artistic thinking overflowed into the superstitious delusion that the self could determine and alter external reality.
Naturally these attempts would fail in intellective reasoning where fact-relation propositions were easily disproved and one soon discovered from experience that no matter how much one feels entitled to one’s own opinion a triangle does not have four sides and a lead bar will not float. Intervening reality will inevitably repudiate any intellectual subjectivism.

Such restrictions and emergency fail safes are not available in the realm of practical reason – in the determining of moral right and wrong in principle and application and in moral motivation.

Where I could claim no entitlement to my own personal truth regarding purple grass or square circles?
Subjectivist morality entered the fray and made me master of my own moral domain.

Subjectivism demands I am not only perfectly entitled to choose my own versions of what is right and wrong in theory and practice but also use any arbitrary [non-normative] reasoning process to arrive at my conclusions. Practical Reason underwent a category-shift paradigm to one resembling matters of taste or religious belief where I need provide no logically sound rationale to justify my claims to my moral truths and no fallacy checking critical thinking analysis to ensure my apologetic for my ethical position is not incoherent, contradictory or absurd.

Modern Subjectivism considers moral value judgments are not really rational judgments at all; but rather feelings, complexes or attitudes wrought in a community from the pressure of its environment, sociocultural influences, traditions and customs and thus by default differing from one community to another and mere feelings, resultant from social conditioning.

If therefore we have been conditioned to think one way?
The educator, social reformer, ideological activist, the advertiser, the propagandist, the media spin doctor or government policy promoter will axiomatically presume we may be conditioned to think in an entirely different way – and thus we may find new ways to “improve personal and social morality” according to innovative standards.

If morality is a mere social construct of subjective standards our intuitive revulsion towards totalitarian dictatorship engaging in genocide or a paedophile rapist becomes one of sheer emotivism unless we can appeal to an objective universal moral standard which transcends our presumptive appropriated right to moral self-determination. If, according to Protagoras, “man is the measure of all things” then there is no independent measure by which anything can be objectively measured and we cannot judge horizontally among ourselves or vertically throughout history and concepts of moral advance or regression becomes meaningless, as do concepts of better or worse forms of morality. Nor can there be any hierarchical standard of moral precedents overriding others. Such moral dilemmas as a man stealing bread to feed his starving family or starving shipwrecked sailors eating the cabin boy become arbitrary, personalist and ultimately illusory.

CS Lewis contends four positions:

1.   Human beings can no more invent a new moral value than they can invent a new colour.

2.   Any modern replacement moral theory or applied ethics merely takes an old part of the classical objective morality, isolates it and removes it from its category restrictions and aggrandises it to hierarchical supremacy or universal importance overriding all others. Morality thus becomes a manifestation of a corresponding ideology, not of holistic comprehensive reasoning.

3.   The modern moral theory whether it appeals to progress or evolution or science thus attacks the traditional moral values from which it had parasitically obtained its very own value and thus saws away at its own branch of justification. But as morality is an Aristotelian “happy medium”, to accentuate one moral precept as indiscriminately precedential over another we may arrive at extremes of injustice. Aristocratic prejudice and Racism are the result of two extremes of traditional morality prioritising the interests of one’s own family and community.

4.   Two alternatives are left open to us:
a] we must either accept the traditional moral axioms of practical reason as objective, self-evident, natural and universally applicable without the necessity of argument as moral theory and the only disagreement which may arise from them is in limitation, application and implementation in ethics.
b] or we must reject all moral values completely and admit they are merely emotive projections and prescriptivist power demands grounded in preferential tastes of our sociocultural conditioning which is always open to change.

One false theory may falsify and hundred facts, and a morally false theory may remove ordinary checks and balances against evil and remove the general communal support for good intentions towards a common good.

Classical natural law theory contends that the nature of law is grounded within an objective morality. The law may not necessarily involve itself in all forms of private or social moral conduct – but in order for a law to retain its authentic nature as a law it must reflect some aspect of that objective morality in form or aim.

But if legal positivism asserts that subjective cultural relativism is an established precedential fact? There are no moral foundations to the law at all other than those deemed constitutional by the sovereign or those policies and laws introduced, upheld, and regulated by the three branches of power.

The law becomes morality-independent and is solely regulated in its functioning by ethical axioms within the rule of law which they have introduced and maintain – ditto any human rights which are integrated within the legal structure are their exclusively at the discretion of the sovereign authority and not through any universalist principle; and are thus open to alteration or rejection.

Furthermore the legal system of the deliberative school becomes the exclusive arbitrator in determining the utilitarian parameters of “soft” cultural relativism between the “extremes” of the impractical absolutist, ‘crude cultural relativism of the discourse school and the untenable and ‘proven false’ idealism of the natural school universalists. Any ostensible moral justifications for legal positions are thus merely exclusively internal policy considerations while feigning to achieve a compromise position between natural and discourse schools.

 

 

 

 

Chapter 6: Objective Morality part 1: Ethical Errors

 

Professor David Oderberg[14] proposes a return to objective non-consequentialist [i.e. non-utilitarian] morality from which may be derived self-evidential natural and universal objective human rights.

Primarily he seeks to redress the prevalent errors in the halls of academia regarding moral theory and its position as an interdisciplinary consideration applicable in all fields regarding codes of conduct.

The preliminary premise is that Ethics is indeed a science in that it has a reasoned, repeatable methodological approach towards inquiry which produces knowledge and a convergence to a recognizable conclusion. Although the subject matter is limited in precision due to incommensurate, unquantifiable, and unpredictable aspects of human nature – it remains a scientific field of investigation in ways similar to psychology and economics rather than mathematics or chemistry. It must also be noted that ethicists themselves are not independent variables and subject to conformity and contra-counterintuitive bias, they are also like in any other science bound to disagree in explanation and interpretation towards a presumptive truth-value.

The first major theoretical hurdle to be confronted is the “Fact-Value” distinction of David Hume – this is probably the major philosophical argument that has been held by most ethical sceptics in dismissing that practical reason is of any value and we cannot achieve any authentic knowledge of right and wrong.
Hume begins with the presumption that only empirical apprehensions of identifiable phenomena are real and therefore there is no room in an empirical world of facts [is] for moral value propositions [ought] – as we can never intellectually move from an “is” to an “ought”.

Now an ethical realist believes in moral facts, but nevertheless, the facts are exclusively only considered within moral propositions which may be either true or false in regard to value judgments.
Hume[15] is failing to concede that the empirical world never deals with ‘facts’ in themselves either; but only when they too are contained within propositions which may also be true or false BUT WHICH ALSO may include value judgments which are not a point of objective concrete observable reality but may involve matters of taste: “Timmy is funny”; or hypothetical potentials “if it is raining then the grass will be wet”. Reality cannot be explained without them.
Furthermore facts are not isolated but obtain their truth value as facts in their relational propositions – snow is white is only true if snow is factually white but if one limits oneself to these statements and these alone, Hume is removing most intellectual pursuit and social interaction – remove value, analogy, abstraction, symbolization or conditional subjunctives from philosophical consideration and philosophy becomes pointless.

In an attempted philosophical sleight of hand; Hume pretends to be claiming one exclusive removal from the epistemological field of play – the moral value player – when in reality he proposes to remove any proposition which does not contain the tautological accuracy of mathematics i.e. most of human thought and communication.

The very groundwork of utilitarianism and legal positivism and the deliberative school’s renunciation of universal human rights resides in the presumption that Hume’s fact-value distinction invalidates all considerations of objective moral realist value statements. The proposed argumentation indicates it does not.

Individual Subjective Relativism asserts that it is erroneous to make any moral value-claim beyond personal opinion.
Where two individuals reflect upon identical factors they may reach ‘valid’ yet diametrically opposing viewpoints.
For P to say “X is right” & Q to disagree is for P to really express:

“Q disapproves of X as far as Q is concerned; however, I approve of X so “X is wrong” is not true for me”    

The first issue to redress is that in neither ethics nor symbolic logic can “X is wrong” be equated with “I believe X to be wrong” for in the latter the very nature of X can never be analysed.

Secondly to impose the additional conditional of the subject to every proposition leads to an awkward logical impasse:
“Doing X is right” becomes “P approves of doing X”
“Doing X is wrong” becomes “P disapproves of doing X”
But what of
“Doing X is permissible”?
By imposing the “personal approval” overlay this can be represented by relativism as:
a} “P neither approves nor disapproves of doing X”

But statement a] can also be expressed to mean
b} “P both approves and disapproves of doing X” &
c] “P does not know whether doing X is right, wrong or permissible” &
d] “P has no opinion about X” &
e] “P finds it untenable [at present/ever] to express an opinion regarding X”

…yet none of these are logically equivalent to the original statement.
By imposing personal approval into all moral equations, the relativist introduces statements which are neither distinct nor unequivocal.

Yet:
“The Golden Rule is there is no Golden Rule.”
“The only thing which cannot be tolerated is intolerance.”   
…are moral absolutes.

…by default; relativism is self-contradictory.

When the principle is extrapolated to the Social Cultural Relativism held by the Descriptive and Discourse schools the problems intensify with determination of a standard and the degree of measurement within that standard.
The Cultural Relativist does not hold that morality is a matter of personal opinion but is derivative and conditioned by the opinion of society – hence there is a specific social standard.
Yet when trying to discover the actual social standard the individual holds as part of a subset the problem arises that it is the individual themselves, whom by belonging to a specific subset social standard and when does this subset change? Does any change in participation or interaction or locale or timeframe alter the individual’s belonging? Or is there a residual retention of a previous standard? How can any individual be determined as to belonging to any subset with a specific social standard?

Ultimately the entire theory collapses into the identifiable standard being arbitrary and the measurement of the standard relying upon the individual themselves – which contravenes the very principles it seeks to assert.

Cultural Relativism as a form of Social Relativism is therefore an indeterminate false paradigm reliant upon an individual relativism it repudiates within its very premise.

Oderberg continues by redressing two ethical theories which are consequences of the Humean fact-value distinction that “Morality, therefore, is felt rather than judged of.”

Known as feeling-based moral theory or Emotivism the position became prevalent among moral philosophers in the 20th Century as Prescriptivism and Expressivism.

Expressivism dismisses such statements as “X is wrong” to be equivalent to “down with X”  and such statements are mere emotive[16] utterances of promotion or repudiation; grounded in preferential tastes of attraction or revulsion dissociate from actual reasoned propositions.

Prescriptivism goes further in arguing that “X is wrong” is actually a subversive imperative coercive command of “Do not be an X or do X”

Peter Geach, after Gottlob Frege contends that moral propositions are exclusively moral propositions rather than containing enthymemic additional assertions of emotions or commands – for if they did any subsequent use of a proposition in ways similar to the assertions would invalidate the argument by the fallacy of equivocation and affirming the consequent.
An example being “if it is raining then the grass will be wet”
The grass is wet therefore it is raining is an invalid conclusion.
“if prostitution is wrong then down with prostitution”
“down with prostitution therefore prostitution is wrong”

A command to follow a moral proposition can never be identical to the moral proposition itself; nor can expressing one’s feeling towards a moral proposition.

However attractive these dismissals of moral propositions as mere emotivism might be to the Descriptive and Discourse schools – both are logically unsound.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter 7 Objective Morality part 2: Foundation & Universalism

Oderberg[17] begins with the moral axiom that a human being is a free agent who makes voluntary advertent acts which are imputable to them and afford personal culpability – despite limitations and diminutions through nurture, habit, sociocultural, psychological or adverse circumstantial influences which can restrict the voluntary nature of an act; one is rarely in a position of an automaton and therefore not a behaviourist/determinist victim or slave to external conditioning. Without this axiom the very consideration of morality would be impossible and notions of culpability, criminality, liability and deserving of punishment – intrinsic to any legal theory or application – would be absurd and always unjustifiable.

The fundamental Aristotelian[18] principle of morality is simply:

 “Do good: avoid evil”

Human beings are rational and self-reflective, thus intrinsically capable of reasoning and ordering their existence towards a good life and making decisions towards that aim of fulfilling one’s appetites towards fulfilling the goal of the good. Evil is therefore that which is debilitative or restrictive to the aim of flourishing by fulfilling one’s nature and goals.

However, it is never possible for a person to choose evil simply because it is evil, but rather they will act towards the fulfilment of a perceived good for which the price is commission of an evil act.

Human life is multifaceted and human aspirations diverse therefore the achievable goods and human flourishing will be infinite in form and aim.

The criteria for optimal human flourishing is primarily found in knowledge and understanding of the good [Truth] and willing the good towards the self and to others [Love].

This requires the living of a moral life which is sourced in practical reason after recognizing the achievable self-evident necessities for human flourishing.
 John Finnis[19], alongside Oderberg, argues that there are universal self-evident preconditional values which apply to all humans in all societies throughout all history.

1.   Life

2.   Knowledge

3.   Play

4.   Aesthetic experience

5.   Sociability

6.   Practical reasonableness[20]

7.   Religion

For discerning and determining the morally right and wrong within practical reason one must pursue these goods within a coherent plan for life, with no arbitrary preferences to values or persons, the retention of a capacity to both commit and detach, to remain aware of the prudential limitations of acting according to predicted consequences and an holistic respect for every basic value within every act. Being a social being, promotion of justice and the common good requires both a morality and following one’s conscience; together with communal solidarity and subsidiarity to the individual. This moral life is fulfilled by habit and becomes virtue.

If morality is universal, objective, and rational it must be holistic and cannot contain self-contradiction. All unifying principles and concepts must be contained within an ordered, functional system of principles for action in any circumstance and not merely individualistic activity.

Morality must be universally applicable for the good of one and all within the social context and thus morality must be reflected within human positive law which establishes and affords the individual specific moral powers to act and interact with legal permission within reciprocal social interactions among those possessing specific moral powers according to law. The moral claim to this moral power is otherwise known as a moral right.

Moral rights include rights to personal property, non-interference with bodily integrity or pursuit of that which is legal, the freedom to associate, to express oneself, to enter contracts and to receive recognition and reparation for violation of these rights.

For every right there is therefore a corresponding moral obligation for the state and the individual and the ordering and balancing of these rights and obligations is known as Justice[21] – taking three forms which reflect the relationship.

1.   Civic Justice – The obligations of the individual to the state

2.   Distributive Justice – The obligations of the state to the individual.

3.   Commutative Justice – The obligations between and among individuals.

To Summarise:

A law is a binding rational principle governing behaviour.

The Moral law is the set of principles which directs human beings towards their fulfilment by flourishing in happiness.

Rights[22] and corresponding obligations originate from this moral law to govern human beings in this pursuit of happiness. Therefore, they are pre-existent to recognition, self-evident and universal to all human beings

Positive human law is established by a legitimate authority mandated to govern a community in the pursuit of the common good.

Morality determines what is and what is not a just law. The legislator frames laws which reflects that morality – the state-authorised powers provided to a citizen are reflective of his moral obligations in conscience towards their pursuit of the good. The legislature need not create laws which conform to morality generally; but that which it enacts must conform with the established morality.

Therefore, such bodies, instruments, constitutions, or declarations which proclaim human rights do not create such rights but simply recognize the pre-existent and self-evident objective universal rights derived from practical reason’s appreciation of the dignity and self-evidential needs of human beings.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter 8a Systems Contrary to Human Rights.

By arriving at these conclusions, we can easily argue against the Enlightenment theories upon the origins of rights via Social Contract.
Contractarians are conventionalists in that they presume that that which was manifested within societies had its sources in an historical development through social interaction and consensual contracts towards codes of conduct – morality was therefore contingent upon the limits of social interaction and the visionary human imagination – rather than morality establishing the law – the law established morality and principles of justice and the legal system and the sovereign authority’s license to provide rights for the citizens. That there has been incontestable social contractual development throughout history it does not in any way refute the necessary criterion that morality preceded the law rather than vice versa – the social contract did not establish – it recognized.

As has been previously stated, Consequentialist ethics such as Utilitarianism – the predominant western ethical theory – is utterly incompatible with the concept of an objective morality and the universality, inalienability, and self-evidential nature of human rights. Even when it chooses to adopt a system of recognition of human rights to maximise overall utility within a system, every action within that system irrespective of the adherence to those human rights – is morally deficient to them and undermines them in principle – for it acts as if it has demurred to some mercenary mutually beneficial policy and can never – will never – recognize human rights as actual human rights. Hence even though the Deliberative School might afford much time and effort towards human rights legislation? It will never recognize their objective moral reality.

 

 

 

 

 

 

 

 

 

 

 

 

Chapter 8b  Professor Tharoor’s Theoretical Rebuttals

To the Philosophical Objection[23]:
“I think it is fair to state that concepts of justice and law, the legitimacy of government. The dignity of the individual, protection from oppressive or arbitrary rule, and participation in the affairs of the community are to be found in every society on the face of this earth. The challenge of human rights is to identify the common denominators, rather than to throw up one’s hands at the impossibility of universalism”

To the Ideological Objection:
ST contends this is grounded in two false dichotomies – that there is an overwhelming tension between the concerns of individual and society; and the misrepresentation of civil and political rights as exclusively relating to individual rights and socio-economic only involved in the remit of society. He argues nothing could be further from the truth as both sets of rights are influential, reciprocal, and complementary among all and to emphasise one to the detriment of another does the human rights agenda a great disservice.

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter 8c Three Propositions for the Reformulation of Universalism: A Critique.

Robert D. Sloane[24] of Yale Law school accepts ‘cultural relativism’ and its corresponding [conditional] ‘ethical social relativism’ as unassailable established empirical fact. Dismissing the natural law/natural rights concepts of self-evident universal human rights, he considers the formulation of the UDHR as riding roughshod over cultural identities and state rights to self-determination and their sovereign right to self-governance, ignoring the conflicting western [individual-centric] and eastern [community-centric] appreciation of citizens’ rights.
Human Rights have tyrannically imposed themselves upon previous civil structures where internal state policy, human pragmatism and utilitarian best interests could have adequately resolved the situations without external interference. He envisions a new formula of “narrative” relativism to counteract the destructive nihilist approach of the “crude” absolutist relativist by a means of new approach of “cognitive relativism” through “disengagement from deep-rooted cognitive and linguistic principles that circumscribe our ability to appraise phenomena in the first place” and by means of innovative strategies “universally apply” this narrative relativism within a reformative dialogue which will allow a conformity within the “universal” application of the human rights process and the unique culturally enshrined state legislature and thus prevent the dangers to human rights within modern states which emphasise the market economy and industrialisation.

Ultimately Doctor Sloane repudiates the very nature and purpose of universal human rights and their implementation as universally applicable. With some historical inaccuracies, a misunderstanding of the ethical principles involved, a misinterpretation of the needs-based dignity of the human person; and a pre-established anti-Natural School animus [which reveals itself through the adjectival descriptors of Universalism, objective morality and natural law/natural rights terms throughout the article] the narrative moves from argument to rhetoric, from reasoned critique to swathing dismissal.
A strong advocate for the deliberative school approach to the formation of exclusively sovereign-granted human rights – he wishes to “de-fang and de-claw” the mandate and powers of International Human Rights and International legal system; but to retain the International Human Rights mechanism as a safety valve for policing and regulating the more obvious and flagrant state violations of its citizens rights but solely within his new proposed framework of a “cognitive relativist” policy. His “Liberal Defence of the Universality of Human Rights” is no such thing – it rather seeks to euthanise the Universal framework in principle and practice and replace it with an automaton coded by his ‘utopian’ new system of cognitive/narrative relativism which he refrains from detailing. Thus, his framework is an amalgam of an overt deliberative and discourse [by stealth] schools.

Dr Dianne Otto[25]’s article on rethinking the Universality of Human Rights Law can easily be summarised as the exemplary narrative of classical nihilist discourse school; wherein the only existent reality is the oppressed victimhood requiring some means of rebalancing power in the war of attrition against a morally bankrupt Western, patriarchal, imperialistic, racist, heterosexist pro-Northern, Pro-“Western ethos” power hegemony. Cultural relativism is absolute as it deals with impossible to compare “incommensurabilities”. The only value of the human rights framework is its existence and its tenure in the global debate which can be utilised to promote a “transformative” relativism as a universal policy and assist in coercion against international powers of oppression against the poor, alienated and disenfranchised. She does not believe in Human Rights as existing anywhere except inside the war-narrative as a useful tool. The fact that it has global standing in its mandate towards universal application of Human Rights makes it an invaluable mechanism for appropriation and utilisation against oppressive power hegemonies via transmission of the “transformative” relativism narrative.

 

Professor Jack Donnelly[26]’s approach is more subtle, informative and complex but equally as compromising to the principle of universalism.
Primarily he differentiates between substantive and conceptual universality:
Substantive being the universally entitled human rights afforded for being a human being; conceptual are those rights which should [if any exist] belong to every individual as deserving by existing within the collective. He moves on to the distinction between universal possession rather than universal implementation of these substantive rights and thus there remains a geographical relativism. He further contends that the never manifested anthropological universal apprehension of basic human rights to remedy social injustices must not be equated with the absence of human rights principles or aims from history – he asserts they simply did not exist despite the aspirational contemporary rhetoric. Human rights principles as specifically human rights were not pre-existent to John Locke. Although cultural relativism is deemed an established empirical fact the integration of human rights within its state legislatures its historically and culturally-contingent functional universalism has gained infectious success by its utilitarian benefits to nations and providing attractive remedies for allaying the most critical rights-violations.

An equally relative and contingent International Legal Universalism has been deemed at present to be an effective passively coercive precursory watchdog and safeguard for human rights compliance monitoring oppressive states which seek international legal and diplomatic recognition. The states are finding compliance with human rights the most pragmatic option through international self-interest.

Overlapping consensus universality recognizes that most religions, charities,  activists, lobby groups, reform campaigners, academic, legal, institutional, governmental bodies, NGOs etc have established a historical precedent in  international conformity in their human rights outlook of establishing foundational egalitarian values. This is also manifest in nations where their “right to rights” makes them politically aware of their international counterparts who do not possess and manifests itself in both voluntary and coerced [transnational] universality

However, in regard to an ontological universality Donnelly argues there is no valid candidate for an underlying universally applicable moral or religious theory which provides a universally objectively correct and valid “grand unifying narrative” and at present we are reliant upon a coalition of consensus universality to provide a quasi-ontological status to vindicate human rights as universally applicable in practice; For:

1.   All major philosophies and religions disagree and have failed to arrive at a consensus therefore automatically disqualify themselves from the role.

2.   These philosophies and faiths have for most of their history ignored human rights principles and only moved towards consensus of recognition once they were proposed in an admixture of selective amnesia and ethical appropriation. To such an extent that the only potential viable candidate for an ontological universal theory must emanate from a new comprehensive theory of justice rather than one of religion or ethics.

3.   By default, from no. 2, most religions and philosophies by being dissociate from human rights have been false and immoral to the point of intellectual and institutional fraud – but human rights theory and practice as established from the UDHR could become that new ontological universality? Donnelly is suspicious that such a ‘transcendent’ ontology is present now, or ever could be; and needs more convincing – at present we can only rely on the consensus theories which allow practical resolution without becoming reliant upon conflicting untenable theories.

   In confronting the Rhoda Howard Hassman coined, “cultural absolutism” of hard/crude cultural relativism Donnelly has six objections.

1.   Adopting a localised cultural theory which is inconsistent with the moral experience of most people – especially on grounds of cultural sensitivity and diversity – would undermine invalidate the underlying aspirational [although unsubstantiated] character of “universal” principles and practice of human rights themselves turning “right” into “tradition”, “good” to “old” and “obligatory” to “traditional” to placate a localised majority.

2.   The AAA[27] statement dangerously assumes the despotic mantle of cultural infallibility by discounting the UDHR to the supremacy of any other conflicting specific culture – it removes any consideration of moral learning or cultural adaptation [ Authors note: plus it  ironically removes the very purpose of the cultural relativism methodological process for which it was created i.e. to assess disparate cultures]

3.   Unacceptable cultural intolerance is supported by this “no objective standard” cultural absolutism and is inconsistent with multicultural and multidimensional human rights

4.   Cultural relativist arguments are apt to confuse culture with socio-political tolerance by citizens rather than their actual values.

5.   Cultural absolutism also ignores external and extraordinary internal interference with culture by political, economic, and historical influences.

6.   Finally, Cultural absolutism presumes an unreal homogeneity and conformity within a culture rather than a contested, fluid, variant contingency in symbols, practices, and argot. Although cultural relativism a valuable consideration to counter misplaced ontological universalism and to protect against neo-imperialism [and its modern globalist emulators] in this absolutist normative form cultural relativism is untenable.

Donnelly continues by assessing the necessity of promoting the principles of equality and autonomy through the justice of self-determination in tension with the order provided by sovereignty and the means by which human rights violations are justified by regimes claiming to have a mandate from the will of the people and the rise of an understanding of international legal sovereignty among states to protect, promote and sustain human rights.

Finally he moves towards the promotion of his proposal of a ‘relative universality’ which is in itself reliant upon consensual universality and modified by due regard to Andrew Nathan’s centrist “tempered universalism” and Richard Wilson’s “recognition relativism” which identifies the culture bur with due regard to Donnelly’s six objections.

The main criticisms of this position begin with its unsubstantiated swathing historical claims and Donnelly’s harsh and unfounded indictments of human rights negligence and dereliction among religions and philosophies. Further scrutiny of the religions and philosophies reveal that there were embryonic principles and practices which existed as the  beginnings of human rights from the codes of Cyrus, the Noachite principles and more profoundly a golden thread throughout all civilizations and cultures of a recognized natural law. Furthermore the fundamental principles of human rights were established prior to the reformation and only delayed in development due to the reformation.
Although he dismisses normative cultural relativism, he by default rejects any objective non-relativist moral theory and his claims to fall somewhere between the natural and deliberative camps ultimately appear to be disingenuous. One thing which has become clear in reading these three academics [and many more of their ilk] is the significant evidence of a lack of cross-disciplinary investigative research and negligence in interdisciplinary collaboration. It could be the rise of legal positivism which has led to legal considerations of ethics being consigned to medical ethics and lawyers’ codes of conduct – but it is amazing to see so many renowned professional jurisprudential human rights commentators making simple ethical mistakes which any ordinary A-Level student of the subject could easily identify.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Conclusion

Dr Tharoor’s prophetic warning was to go unheeded:

Where 250yrs ago human rights were recognized to be universal, self-evident natural, pre-existent and recognizable the major issues which followed the US and French post-revolutionary Declarations were to be found as to whom among the citizenry did these “human rights” apply? Ali Slave? Beggar? Protestant? Jew? Colonist? Child? Woman? Prisoner [of war?].

The nature of the rights was not at issue – membership of categories eligible for these rights was the issue [that power was at the pragmatic discretion of executive political policy of the founding fathers or the Citizen’s assembly  – NOT the idealistic theoretical legislators]

The equivocation around the rights were not what or why or how – but who?

With the UDHR came an advancement in the solemn declaration that these rights were objectively universal in principle and application.

– not subjectively
– not conditionally
– not contingently
-  the right could not be repudiated because it was universal
-  it could not be withdrawn because it was inalienable,

-       it did not need to justify itself because it was recognized and held to be true at international law

-       nor did it need to appeal for vindication because it was self-evident…

-       and it did not require endorsement by my state’s sovereign authority, to be allowed to exist.

Universalism guaranteed that I need only to be a human being and I could share in the right and the obligation. As the moral theory was objective – so too was the right – so too was the the sovereign authority’s positive law-making by granting expression to exercise of those rights.

Furthermore, there are two previous precepts which must now be addressed from a reverse perspective if untrue.

A] If morality is universal, objective, and rational it must be holistic and cannot contain self-contradiction. All unifying principles and concepts must be contained within an ordered, functional system of principles for action in any circumstance and not merely individualistic activity.

B] Morality must be universally applicable for the good of one and all within the social context- thus morality must be reflected within human positive law which establishes and affords the individual specific moral powers to act and interact with legal permission within reciprocal social interactions among those possessing specific moral powers according to law.
The moral claim to this moral power is otherwise known as a moral right

If the new “universalism” of the academics – despite retaining its name - loses its established ontological transcendental autonomous universal identity? It also loses its holistic incapacity to self-contradict in theory thus the reassurance of its truth, its goodness, its benevolence to others is gone.

The very nature of the sovereign authority legislature was as a social enabler of rights – if those rights are now invalid – is the prime purpose for the contract with the sovereign authority still aimed towards a common good?

If the sovereign authority declares “we create the rules along utilitarian lines to formulate an optimal best interest effect for us”.?

The acts of creating those laws do not engage in practical reasoning, but  rather, in mercenary thinking of the sovereign’s best interest.

Now that paradigm has come to an end we not only do not know – it is impossible to know what benefit or harm may arise from the state’s deliberations  - the very nature of the sovereign’s mandate to exercise power and the very concepts of a social contract begin to crumble.

But who has actually determined and made the decision that human rights are not universal and the objective morality of natural law from practical reason is not a valid reciprocal ethical symbiosis?
Who has provided the reasoning for the abandonment of natural law and the inalienability/universality and self-evidentiary nature of the rights which that morality produces?

The deliberative school law-workers and the lawmakers have now decided that there is no external factor which may regulate its theoretical moral thinking – only the rule of law will control application. They now declare they are the exclusive owners and arbiters of the law and are under no obligation to give due concern to any external force – especially moral ones.

Jack Donnelly argues he would need much further convincing to consider an objective morality providing an ontological universalism for rights – one may only respond “exactly what reason have you provided to prove to us natural law morality is not objective & human rights not transcendentally universal”?

Until you can convince, rather than merely assert that morality is by default relative and all practical reasoning is invalid? Kindly permit me to remain with my natural law objective morality and my inalienable, self-evident and universal rights and reject any academic theory which counterintuitively tells me I am forbidden to genocide is always morally wrong. Thankyou.

BIBLIOGRAPHY

Books

Oderberg, D. Applied Ethics (Blackwell, 2000)
Harte, C. Changing Unjust Laws Justly  (Catholic University of America Press, 2005)
Loveland, I. Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction (6th Edn, OUP, 2012)
Maclean, A. The Elimination of Morality (Routledge, 1993)
McInerny, R. Ethica Thomistica (Revised Edn, Catholic University of America Press, 1997)
Foster, S. How to Write Better Law Essays (2nd Edn, Pearson Longman, 2009)
Piatelli-Palmarini, M. Inevitable Illusions (John Wiley & Sons, 1994)
Martin, F. & others, International Human Rights & Humanitarian Law Treaties, Cases, & Analysis (Cambridge, 2006)
Steiner, H., Alston, P. and Goodman, J. International Human Rights in Context: Law Politics Morals (3rd Edn, OUP, 2007)
Rehman, J. International Human Rights Law (2nd Edn, Pearson Longman, 2010)
Hunt, L. Inventing Human Rights: A History (W.W. Norton & Co., 2007)
Riddall, J. Jurisprudence (2nd Edn, LexisNexis, 2004)
Thomas, P.(Ed) Legal Frontiers (Dartmouth, 1996)
Hanson, S. Legal Method & Reasoning (2nd Edn, Cavendish, 2006)
Kreeft, P. Making Choices (Servant, 1990)
Oderberg, D. Moral Theory (Blackwell, 2000)
Finnis, J. Natural Law and Natural Rights (Clarendon, 1980)
Laing, J and Wilcox, R.  The Natural Law Reader (Blackwell, 2014)
Tuck, R. Natural Rights Theories: Their Origin & Development (Cambridge University Press, 1998)
Wilsom, M., Brock, D. and Kuhns,R. Philosophy: An Introduction (Meredith Corporation, 1972)
Feser, E. Philosophy of Mind (Oneworld, 2009)
Ashworth, A. Principles of Criminal Law (6th Edn, OUP, 2009)
Thouless, R. and Thouless, C. Straight & Crooked Thinking (5th Edn, Hodder Education, 2011)
Kreeft, K. Summa Philosophica (St Augustine, 2012)
McDermott, T.(Ed.) Concise Summa Theologiae of St Thomas Aquinas (Methuen, 1989)
Smith, R. Textbook on International Human Rights (4th Edn, OUP, 2010)
Donnelly, J. Universal Human Rights in Theory and Practice (2nd Edn, Cornell University Press, 2013)
Salter, M and Mason, J. Writing Law Dissertations (Pearson, 2007)

 

Articles

Kelsgard, M. “Critiquing Cultural Relativism: A Fresh View from the New Haven School of Jurisprudence.” Heinonline 42 Cumb. L. Rev. 4412011-2012
Sloane, R. “Outrelativizing Relativism: A liberal Defence of the Universality of International Human Rights” Heinonline 34 Vend J Transnatl L. 527 2001
Tharoor, S. “The Universality of Human Rights and Their Relevance to Developing Countries” Heinonline 59 Nordic J. Int’l L.139 1990
Otto, D. “Rethinking the “Universality” of Human Rights Law” Heinonline 29 Colum. Hum.Rts L Rev. 1 1997-1998
Donnelly, J. “The Relative Universality of Human Rights” Human Rights Quarterly, Volume 29, number 2, May 2007 pp281-306
Dembour, M “What Are Human Rights? Four Schools of Thought” Heinonline 32 Hum. Rts. Q. 1 2010
Davidson, J ”East Versus West: Human Rights and Cultural Difference” Heinonline * Canterbury L. Rev. 37 2001-2002 



[1] Finnis, J. Natural Law and Natural Rights (Clarendon, 1980) 159-60

[2] Finnis, J. Natural Law and Natural Rights (Clarendon, 1980) 196

[3] Tharoor, S. “The Universality of Human Rights and Their Relevance to Developing Countries” Heinonline 59 Nordic J. Int’l L.139 1990

[4] Davidson, J ”East Versus West: Human Rights and Cultural Difference

[5] Henry Steiner, Phillip Alston and Ryan Goodman, International Human Rights in Context (3rd Edn, OUP, 2007) 583-590

[6] Henry Steiner, Phillip Alston and Ryan Goodman, International Human Rights in Context (3rd Edn, OUP, 2007) 531-540

[7] Dembour, M “What Are Human Rights? Four Schools of Thought” Heinonline 32 Hum. Rts. Q. 1 2010

[8] Jacqueline Laing and Russell Wilco The Natural Law Reader (Blackwell, 2014)

[10] Ibid 521-23

[11] Tharoor, S. “The Universality of Human Rights and Their Relevance to Developing Countries” Heinonline 59 Nordic J. Int’l L.139 1990 146-7

[12] Ibid 524-27

[13] Wilsom, M., Brock, D. and Kuhns,R. Philosophy: An Introduction (Meredith Corporation, 1972) 491

[14] David Oderberg , Moral Theory  (Blackwell,2000) 1-33

[15] Wilsom, M., Brock, D. and Kuhns,R. Philosophy: An Introduction (Meredith Corporation, 1972) 552

[16] Wilsom, M., Brock, D. and Kuhns,R. Philosophy: An Introduction (Meredith Corporation, 1972) 588

[17] Ibid 34-86

[18] Wilsom, M., Brock, D. and Kuhns,R. Philosophy: An Introduction (Meredith Corporation, 1972) 540

[19] John Finnis,.Natural Law and Natural Rights (Clarendon, 1980)

[20] Philip A. Thomas.(Ed) Legal Frontiers (Dartmouth, 1996) 41ff

[21] John Finnis, Natural Law and Natural Rights (Clarendon, 1980) chVII

[22] Kelsgard, M. “Critiquing Cultural Relativism: A Fresh View from the New Haven School of Jurisprudence.” Heinonline 42 Cumb. L. Rev. 4412011-2012

[23] Tharoor, S. “The Universality of Human Rights and Their Relevance to Developing Countries” Heinonline 59 Nordic J. Int’l L.139 1990 145

[24] Sloane, R. “Outrelativizing Relativism: A liberal Defence of the Universality of International Human Rights” Heinonline 34 Vend J Transnatl L. 527 2001

[25]  Dianne Otto, “Rethinking the “Universality” of Human Rights Law” Heinonline 29 Colum. Hum.Rts L Rev. 1 1997-1998

[26] Jack Donnelly. “The Relative Universality of Human Rights” Human Rights Quarterly, Volume 29, number 2, May 2007 pp281-306

[27] Henry Steiner, Phillip Alston and Ryan Goodman, International Human Rights in Context (3rd Edn, OUP, 2007) 528-31

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