Return to APA Newsletters IndexThe following appeared in Volume 97, Number 2 (Spring, 1998) of the APA Newsletters
The Universal Declaration- Ambiguous or Amphibious?
Carl Wellman
Human rights as conceived of in contemporary moral and political theory are what were traditionally called natural rights. The change in terminology is not merely cosmetic. Theories of human rights tend to reject epistemological intuitionism and to be sceptical of any ontological realm of nonnatural moral entities. Still, most theories of human rights do not reject moral realism and retain the essential presupposition of any natural rights theory, the assumption that these fundamental moral rights exist independently of any social institution or code of conventional morality and, therefore, are not artificial or "man-made."
At the same time, contemporary jurists and philosophers of law recognize that there is a species of legal rights that are quite properly called human rights. They are the universal rights international law confers on each and every human being simply by virtue of his or her humanity. These are obviously artificial rather than natural rights, for they are products of a set of legal institutions created and maintained by human actions.
These two species of human rights are distinct, for each logically could exist without the other. Indeed, there probably are some moral human rights, such as the right to be warned of impending danger, that are not and ought not to be recognized in international law, and others, such as the right to an adequate standard of living, that are perhaps legal human rights but do not secure any real fundamental moral right. Even when a human right in international law, such as the right to life, does correspond to some moral human right, the defining contents of these two rights need not coincide. Some philosophers have argued that the moral right to life is broad enough to render capital punishment morally impermissible in every case even though the right to life as defined in international law is limited so as to permit capital punishment under some circumstances.
How, then, shall we interpret the Universal Declaration of Human Rights? Its original purpose seems to have been to reaffirm and describe a set of moral rights human beings possess whether or not these rights are recognized in any legal system. But today it is generally accepted as a legally authoritative document that at least partially grounds human rights in international law. Does this mean that each sentence in the Declaration is ambiguous, having a double meaning or reference? If so, it is in effect two documents that by historical accident are written in the same language and printed in the same type on the same sheet of paper.
The Universal Declaration of Human Rights seems both to describe a set of fundamental moral rights and to confer a set of legal rights upon all human beings. But are these two separate and independent functions? If so, the expression "human rights" as it appears in this document is simply ambiguous. But perhaps the capacity of this document to confer legal rights depends in some essential manner on the fact that it does, or is assumed to, affirm independently existing moral rights. If so, we should read it not as two documents misleadingly written as one, but as a single amphibious document, having a double nature or mode of existence equally at home in the primordial sea of moral rights and on the sandy shore of international law.
It is only fair to warn the reader that my discussion of this question will be doubly provincial. I am a citizen of the United States, not of the entire world, and I am a philosopher, not a lawyer. Therefore, I shall begin with an American perspective on moral theory and only gradually and with hesitation speculate a bit about international law.
I. Two Declarations
The Universal Declaration reminds me of the Declaration of Independence. Article 1, "All human beings are born free and equal in dignity and rights...," echoes "...that all men are created equal, that they are endowed by their Creator with certain unalienable Rights...." Again, Article 28, "Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized," is analogous to "That to secure these rights, Governments are instituted among Men...." Finally, the assertion in its Preamble that "...it is essential, if man is not to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law" reminds us that the revolution of 1776 was occasioned by "a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States." These debts to an earlier document reflect more than an uncritical acceptance of traditional Western political theory.
The problem confronting the thirteen North American colonies was the abuse of power by the British government. Hence, to justify their Declaration of Independence, they appealed to "The Laws of Nature and of Nature's God." To be sure, they need not have conceived of the moral law in theological terms; but it was essential to their purpose that the moral rights upon which they rested their case be natural rights, for they needed some standard of criticism external to and independent of the legal system from which they were revolting.
The problem perceived by those who founded the United Nations in 1945 was the gross abuse of political power, especially by Nazi Germany, that had led to the Second World War and the Holocaust. Hence, one of the purposes proclaimed in its Charter is "to achieve international co-operation ...in promoting and encouraging respect for human rights...." Now this appeal to human rights could be a partial solution to the problem of grossly immoral state action only if these human rights are moral rights that exist whether or not they are recognized and respected in any given legal system. Similarly, it would seem that the Universal Declaration could proclaim "a common standard of achievement for all peoples and all nations" only if the human rights intended to provide that standard are moral rights with an existence independent of and not subject to limitation or annihilation by the law of any nation or the social institutions of any people. Therefore, just as the Declaration of Independence by its very purpose appealed to natural rather than artificial rights, so the Universal Declaration must be a description of preexisting fundamental moral rights in order to fulfil its proclaimed purpose and to be even a partial solution to the problem recognized in the United Nations Charter.
The Declaration of Independence does not, however, confer any legal rights upon the citizens of the United States. At most, it has some relevance to the interpretation of one or two of the constitutional rights, such as the right to liberty, conferred by the United States Bill of Rights. Should we conclude that similarly the Universal Declaration grounds no rights in international law but at most has some relevance to the interpretation of the later covenants that first conferred legal human rights? I think not. The contexts of these two documents are very different. The thirteen states of America issued the Declaration of Independence in 1776, thirteen years before the Constitution of the United States went into effect and fifteen years before the ratification of the Bill of Rights. The Universal Declaration of Human Rights is a resolution of the General Assembly of the United Nations adopted three years later than and pursuant to its Charter, its constitution under international law. Also, the original intention of the General Assembly was to formulate a legally binding document analogous to bills of rights in the constitutional law of many of its member nation states. Although it found that it had to divide this process into two stages, the Declaration of 1948 and the two covenants of 1966, these were intended to be and should be interpreted as two parts of a single process of law-making. The obvious, although not necessarily correct, conclusion is that the Universal Declaration is legally valid and that its legal status is essentially tied to its status as a declaration of moral rights. Perhaps, then, it is an amphibious rather than a merely ambiguous document.
II. Legal Validity of the Declaration
But how could a declaration of moral rights ground any legal rights? I am told by those more knowledgeable in the law than I that this might be explained in either or both of two ways.1 The Universal Declaration could be read either as an authoritative interpretation of the human rights clauses in the United Nations Charter, a legally binding treaty under international law, or as partially defining the human rights conferred by the customary international law it helped to create.
On the former theory, the Universal Declaration does not confer any new legal human rights; these were already recognized as binding in international law by the United Nations Charter. Still, it serves as a legally valid ground for claims regarding specific human rights because it defines the content of the several rights only mentioned collectively in the Charter. Now if the legal validity of the Universal Declaration is in this way derived from the Charter and the Charter presupposes that the human rights to which it refers are moral rights, then the capacity of the Declaration to ground legal human rights depends essentially upon the assumption that these are also moral rights. If, on the contrary, the Declaration is not read as describing moral rights, then it is not in conformity with the proclaimed purposes of the Charter and cannot derive any legal validity from that source. Hence, the Universal Declaration is amphibious rather than merely ambiguous.
On the latter theory, the Declaration defines in part the human rights conferred by customary international law because it, together with the covenants of 1966 and other United Nations conventions, contributed to the development of this customary law. Thus, the Universal Declaration was originally merely an affirmation of moral rights but later derived legal authority from the international customs it helped to create. However, not all international customs are sources of international law, only those that are evidence of a general practice accepted as law. What is the force of this qualification? If "accepted as law" is taken literally, meaning or presupposing that the custom in question is legally binding, then it would be a viciously circular criterion of legal status. I suggest that it means simply "is accepted as binding," and that this presupposes that for some reason these general practices are morally binding. But what might this reason be? The obvious explanation is that these customs are morally binding because they constitute an international morality, a moral code applying to the conduct of nations analogous to the social mores that determine the morality of individual conduct. Notice that the enforcement of human rights law depends primarily upon moral sanctions like calls for the respect for human dignity and moral condemnation of violations rather than the use of a police force that typically impose the sanctions of domestic law. Hence, on this theory also the Universal Declaration is amphibious because there is an essential connection between its legal and moral functions.
III. Two Moralities
Let us not leap to any firm conclusion, for we have not yet eliminated ambiguity from the Universal Declaration of Human Rights because the words "moral" and "morality" are themselves ambiguous. The international morality presupposed by customary international law is a positive morality and like positive law artificial, but the morality presupposed by the United Nations Charter is a natural morality quite independent of any legal system or set of social rules of conduct. To eliminate this ambiguity in ordinary language, I will henceforth use "morals" and its cognates to refer to moral norms that are not created by any human actions and not dependent on human beliefs or attitudes but will use "morality" and its cognates to refer to morality norms constituted by human practices, for example the mores or moral code of a society.2 Now if the legal function of the Universal Declaration is derived from the Charter, which presupposes that human rights are natural rights, then it is tied to morals; if its legal function arises from customary law, then it confers a set of artificial rights and is tied to morality. Thus, the ambiguity remains unless morals and morality are essentially connected.
Is morality necessarily tied to morals in any way? Positive morality consists of a set of social rules that are generally practiced and generally accepted as rationally justified. Hence, there is a claim to rationality implicit in each norm of positive morality. This claim may, of course, be mistaken; not every norm of positive morality is in fact justified. But the general acceptance of the norm is justified only if in fact there are reasons sufficient to justify the social practices specified in that norm. Must the reasons presupposed by the acceptance of morality norms be specifically moral reasons, rather than prudential or some other species of practical reasons? Well, each morality rule is a norm specifying both how the individual members of the society may or ought to act and how others may or ought to react to any individual who conforms to or deviates from that norm. Hence, any reason capable of justifying such a norm must be a dual-aspect essentially social reason, a reason both for any agent living in society with others to act in some specific manner and for others living in society with that agent to react to him or her depending upon whether he or she has or has not acted in conformity with this reason. And this is precisely what defines moral reasons and distinguishes them from other sorts of practical reasons; moral reasons are dual-aspect essentially social reasons. Moreover, morals are constituted, not by some set of moral rules or principles, but by the total set of moral reasons.3 Therefore, positive morality is by its very nature tied to morals.
But does positive morality really require specifically moral reasons for its justification? After all legal rules are also dual-aspect norms, norms governing the actions of those subject to the law and the reactions of others, especially judges and the police, to those subjects. And a law might be morally justified by its overall utility, an urgent national interest or some other consideration that is not itself a specifically moral reason. But this is because almost all laws derive their validity from authoritative legal sources generally accepted in the practices of the legal system as a whole. Thus, the claim to rationality implicit in most legal rules is internal to the legal system of which it is a part. Only what H. L. A. Hart calls its rule of recognition presupposes any rational justification external to the law because only it must be independently accepted.4 However, each morality norm is generally accepted as justified on the basis of some reason or reasons taken to be morally relevant to the conduct it permits or proscribes. It is because the rules of positive morality are justified on the basis of their content, not because of the manner in which they have been posited, that they, unlike most legal rules, require an external justification and presuppose specifically moral reasons.
Does it follow that morality rights and moral rights are essentially connected? Not at all. The existence of some specific moral right does not imply that there is or ought to be some comparable morality right, and the nonexistence of some moral right does not imply that there ought not to be some comparable morality right. Although positive morality is tied to morals because of the specifically moral reasons presupposed by its acceptance, these moral reasons need not be of the special kind that confer any right. And this is precisely what one would expect. Just as a moral human right can exist when there is no analogous human right in international law, or vice versa, so the existence of analogous human rights in morals and international morality need not coincide.
IV. Conclusion
What conclusion should we draw about the Universal Declaration? The threat of ambiguity is greater than we at first suspected, for we now see that there are three sets of logically independent human rights implicated in that document-moral rights, morality rights and rights in international law. Nevertheless, the expression "human rights" as used in that document is not merely ambiguous and the Declaration is not three documents that merely pretend to be one. It is a single document with moral, legal and morality functions that are essentially, not accidentally and through equivocation, connected. It is tied to morals through the United Nations Charter and tied to positive international morality through customary international law and in turn through morality indirectly tied to morals once again. Therefore, the Universal Declaration is amphibious, having a triple nature or mode of existence equally at home in the primordial sea of moral rights, in or on the marshlands of international morality and on the sandy shore of international law.
Many moral philosophers and most jurists may rightly think my reasoning excessively speculative and my conclusion correspondingly dubious. If my thesis that the human rights grounded by the Universal Declaration are essentially tied to both morals and morality is correct, then human rights cases should permit appeals to both moral reasons and the facts of international morality. Do the practices of the International Court of Justice and other authoritative bodies that decide cases arising under international law confirm my hypothesis? I must leave the answer to this question to those more knowledgeable than I in international law. Whatever the answer, we can safely conclude that the Universal Declaration of Human Rights is a document worthy of the most serious consideration by both international lawyers and moral philosophers.
Notes
1. For example, William W. Bishop, Jr., International Law 2d edition (Boston and Toronto: Little Brown and Company, 1971), 25-37.
2. Carl Wellman, A Theory of Rights (Totowa NJ: Rowman & Allanheld, 1985), 121.
3. Ibid., pp. 122-131.
4. H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1st edition 1961, 2d edition 1994), 100-110.
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