An analysis on different theories of human rights
Human rights and certain human rights in specific encompass the potential of remaining buzzwords in/under numerous disciplines. Certain human Rights make headlines around the world almost every day. However, often we do not understand what we mean by human rights, or where they derive from.
Marie-Benedict Dembour stated there are four schools of thoughts on human rights. These are the natural school, the deliberative school, the protest school and the discourse school.
The most well-known theory of human rights is propagated by the natural school. The natural school describes human rights as a concept which human beings possesses simply because they are human beings (Dembour, 2010). As per Dembour, proponents of the natural school assert that the right to freedom of thought, conscience and religion, are entitlements which a human possesses from "nature" – which can be addressed as the Creator, the Universe, reason or any other transcendental source. The Universal Declaration of Human Rights (UDHR) has followed the natural school with regard to the application of these rights, as these are protected unconditionally. Although there are no direct limitations on the right to freedom of thought, conscience and religion directly, there are limitations to the exercise/manifestation of the exercise of that right (Swaine, 2016). As Swaine states, freedom of thought, though different and unique, is relatable to the freedom of expression. Reasonable limitations can be imposed on the freedom of expression (ICCPR Article 19). Freedom of religion covers one's belief and choice (General Comment No. 22) but it is in the manifestation of that belief that reasonable restrictions can be imposed (Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion and Belief Article 1). As natural school is absolutist and historically has been in parlance with religious orthodoxy, the rights have been found to clash with one another and even has been termed as "nonsense upon stilts" (Bentham).
Scholars of the deliberative school sees human rights as political ideals that liberal societies want to follow. As per Dembour, deliberative scholars believe human rights have come into existence upon agreement of the members of the society. Although they want these values to be universal, they realise that this cannot be done in one go and would require persuasion that these are the highest suitable principles for governance. Dembour further states, constitutional law is one of the mechanisms for expressing agreed upon human rights. According to Miller et al, deliberative school allows the existence of the right to freedom of thought, conscience, and religion as per the social norms of the country. The downside with this school of thought is, in some case, consultation and dialogue may lead to agreement of imposition of hegemony of the majority over the minority (Nikuy Bandari, 2021).
As per protest scholars, the struggle for human rights is an endless one and it never ends as long as there are the needy, destitute and oppressed (Dembour, 2010). With regard to application of this school, to the said rights – the goal would not just be to establish the rights, but also to ensure this does not marginalise or harm others. Dembour states that, according to the protest school, as the fight for human rights is a perpetual struggle, after establishing one's own right, one needs to fight for the human rights of others as well.
The discourse school is suspicious of human rights and view it as an imposition of imperialist thoughts and ideas (Dembour, 2010). The discourse scholars are more interested in the implications of human rights (Valen-Sendstad, 2010). The discourse school sees no universal norms in the application of the right to freedom of thought, conscience and religion. (Dembour, 2010). These rights would only be implemented to the level the state would allow it to be implemented as it is only the state which has this right. (Asad, 2000). As per Asad, even gross violations of human rights do not warrant intervention, as the discourse school characterises it as internal matter of the society.
The protest school agrees with the natural school on the point that everyone is entitled to human rights. It diverges on the point that the once entitled, it is one's duty to ensure others are entitled. This is the point where the protest school has similarity with the deliberative school. As the deliberative school asserts that human rights are those which are expressed through law (Dembour, 2010), the law places certain restrictions on those rights to ensure the rights of others are not marginalised (Encyclopedia Britannica, 2019). This is where the similarity between protest school and deliberative school is found as protest school emphasises not on individualism but on collectivism society. But it is to be noted that the similarity between the protest school and deliberative school is only in this case. Under deliberative school, rights of the marginalised could be trumped but the protest school is based on the premise that the fight for human rights for all must be undertaken.
The writer is student of law, University of Dhaka.