CHAPTER I

TOWARDS A PHILOSOPHICAL

FOUNDATION FOR HUMAN RIGHTS

 

THE CHALLENGE OF SKEPTICISM

            Human rights face a singular challenge on which their effective understanding and application depend. This consists in the tension between their normative features and their grounding. On the resolution of such a tension depends the universal destiny of human rights.

            The first or normative aspect refers to the relation bet-ween human rights and the actually existing judicial and political apparatus which is supported by, and applied in, the political charter of each country, together with its codes, laws, norms, decrees and judicial organizations. The primary func-tion of positive law is to legitimize in a rational manner the social, economic, military and political realities of a deter-mined geographical region for the period of time in which its judicial norms are valid and binding. From this point of view, the guarantee of the rationality of a society and a state coincides completely with the judicial or legal system. The whole set of norms have as their essential function making life possible within society. In developed countries the whole of social ethics coincides completely or is totally mixed with the system of laws and the corresponding apparatuses and me-chanisms of the judicial system.1 This is not to suggest an identity between ethics, especially social ethics, and the ju-dicial system, but it is possible to speak of a coincidence bet-ween the two. From this standpoint, it is understandable that positive law considers itself self-sufficient with regard to the grounding of human rights. Thus, the law is erected as both the logical and ontological foundation of the whole social, cultural and political reality.

            The second aspect, however, is the most difficult and questionable, namely, the foundation of human rights. The problem originates from the "intangibility" of the related themes and philosophical problems due to which human rights appear as an inoperant and ineffective intellectualization. Whether as motivation or as consequence, the problem of grounding human rights ends in, or is raised by, skepticism, which has two practical consequences, first, indifference which ends by being confused with a sort of complicity and individualism, and second, insensibility regarding the whole set of problems constituting or centered around the theme of human rights.

            As can be seen clearly the apparent or real difficulty in talking about universality with regard to human rights lies, on the one hand, in the sub-sumption of human rights under the entire judicial apparatus, which by definition is geographically delimited in terms of geographical and cultural iden-tities. The system of positive law is delimited in various ways and supported by different mechanisms. Clearly, then, tasks related to the universality of human rights depend upon their philosophical foundation whose task it is to demonstrate the possibility of speaking rationally and reasonably about their universality. From many viewpoints, such universality would coincide, and indeed mix, with the universality of ethics itself.2 This last consideration shall be put aside for the time being.

            Here the sole aim is to study the problem of the meaning of the universality of human rights. Numerous other themes and problems related to the foundation of human rights must be studied: the point of view of human life, or, better, the absolute need to respect human dignity and the affirmation and development of the human life of each individual and every community and people. We have studied some of these themes elsewhere; here it is studied in terms of problems that engage us in various ways. One problem about the univer-sality of human rights is their epistemological and onto-logical ambiguity. Skepticism has ever been the great enemy of universality. While I do not deny that skepticism can play a relatively positive role through warning against vacuity and formalisms, here I shall be concerned to refute the skeptical objections to the universality of human rights.

THE GENESIS OF HUMAN RIGHTS

            Violence is the origin and, as such, the principle of hu-man rights. This is not to note a felix culpa but, on the con-trary, to take note of the dialectic between violence and human rights which defines the ethos of the contemporary world.

            Regardless of the historical or historiographical ap-praisals of the various Universal Declarations of Human Rights -- all of which constitute important contributions to the "epochal" comprehension of human rights along with the object to which the entire set of problems of human rights refer -- one specific circumstance marks the destiny of human rights both as theme and problem, namely, the existence of violence with its absolutist pretensions. Around this, cluster areas as diverse as law, sociology, politics, philosophy, ethics, military systems and regimes, and psychology.

            Violence is so characteristic a human phenomenon that it is difficult to speak of it in the realm of animal or physical nature. The use of such expressions as "natural violence" with reference to earthquakes or "animal or animal-like violence" in relation to behavior within a biological species is in reality a matter of slackness in language or of anthropomorphism. Moreover, as violence is a cultural as well as an historical phenomenon, criteria for criticizing it correspond to calls for further forms of rationality and of critique, control and sup-pression of determined systems of violence. Our times are characterized by the systematic presence of violence in va-rious forms, both open such as military or physical violence and such more subtle forms as economic or psychological, as well as different forms of cultural domination. Generally, there is not only one form of violence completely apart from others; open and "subtle" violence constitute a complex unity and it is due to such situations of systematic violence that problems concerning human rights exist.

            It is necessary to distinguish two things. On the one hand, there are the problems concerning criminal law or cri-minology in general. Here several fields are to be distin-guished: misdemeanors, common crime or delinquency, etc. Depending on the operative judicial system these can be merely police situations as when a person complains about the next door neighbor. They can also be properly criminal and therefore are referred to such punitive mechanisms as prisons. This first area generally is judicial or at least the forefront is occupied by criminal law of the police; only afterwards is it seen as a matter of human rights.

            On the other hand, violence is essentially involved in the constitution of human rights. Such violence can be charac-terized as systematic and or systematized, that is, violence as a habit, custom or way of life -- an everyday reality or ethos. Humanitarian International Law (HIL) provides an account of this group of violent acts or systematic violence. The generic title used in this case is the one of "crimes of lŤse-humanity", i.e., all sorts of crimes which come to be a part of human me-mory as a record of the human species. Such violence is not episodic, but has come to be an everyday principle of reality for a determined place and for one or several individuals or communities.

            Clearly in the history of humankind there have been di-verse periods of violence, even of systematic violence against individuals, peoples and entire cultures. The Inquisition, the Conquest and Discovery of America, or the whole history of slavery in Africa are examples. However, only recently have human rights come to be at once ethical, juridical and political criteria for assessing a form of government or even a whole culture as respecting or violating human rights. It is not inci-dental that to the systematization of violence there corres-ponds as a cultural cross-entry the development of informatics and the elevation of technology to one of the several criteria of rationality.3

            Systematic violence is the de facto imposition of a deter-mined form of violence upon the life of society and of in-dividuals and, as such, as a principle of reality. In this sense, we refer to violence upon individuals and (relatively) large groups within society from two different fronts. First, the State is recognized as the main guarantor or the main violator of human rights. The point here certainly is not to accuse the State or, more concretely, its various legal and security me-chanisms of being the source of violence. Behind this idea lies a political philosophy and a philosophy of history treating, usually negatively or destructively, the question of the very need for a state. On the contrary, the fact that the state is re-cognized as the first institutionalization of violence lies in the real fulfillment, or in the negative case in the non-fulfillment, of the functions that give origin and make sense of the po-litical state. The stateís meaning and function is to guarantee the citizenís life and enable the free development of life in society in all its modes. For this reason the state is uniquely responsible for the use of the military forces and of the judicial system. Hence, the accusation of the state as a violator of human rights refers mainly to the military forces, the police and the state security forces. The control of those forces is the responsibility of the different executive, legislative and judi-cial powers of the state, together with their manifold inter-relations. In a word, seeing the state as the source of violence is based on the objective actions it either carries out or avoids with regard to guaranteeing life as well as the citizenís po-litical, economic, civil, and social and cultural rights. These actions correspond to the first generation of human rights (the French Revolution), the second (The Universal Declaration in 1949), the third (our contemporary age), etc.

            The second main source of violence and violations of the human rights comes generally from civil society itself and, more particularly, from determined organizations of civil so-ciety. The most classical examples are paramilitary groups, large corporations and political parties. How they exist varies from one country to another, for instance the existence of gu-errilla or self-defense groups pertains to the particularities of the region or time.

            What is significant is that there is an evident correlation between forms of violence. This sets up violence as an every day reality expressed sometimes more sharply and at other times in a more latent form. Nevertheless be it open and de-clared conflicts within a determined geographical region, or low-intensity conflicts, the basis of the origin of the whole problem of human rights in the contemporary world is the fact that violence is erected as a principium realitatis or the way in which every day reality develops in a certain place and time.

            If it is because there are more or less generalized si-tuations of violence that human rights exist, then the object of human rights is first the critique and then the gradual or total suppression of violence toward individuals and social groups, regardless of the reasons and the interests by which such vio-lence originates or is justified. To say, however, that the object of human rights consists "first" in denouncing the conditions that give rise to violence, and "then" in the gradual or total suppression of those forms of violence is, evidently, an epistemological distinction, never a chronological one.

            On the basis of the philosophy of human rights there is, in turn, a philosophy of culture along with a philosophy of his-tory. However, the issue of human rights definitely is not to explain one thing on the basis of something else, namely the reality of violence through factors of a cultural, historical, so-ciological or political kind. On the contrary, the issue con-cerns the field where sociology, history and historiography, psychology and biology intersect as a terrain of dialogue and work among various disciplines, sciences and practices. Thus, for instance, positive law, ethics, philosophy, education, eco-nomics, politics, social psychology and sociology are some of the areas that converge in human rights or find there a whole set of problems, under the title "respect for human rights," as a common place for dialogue and work.

            It is equally clear that the object of the human rights does not consist simply in the critique and suppression of violence, but only makes explicit in a negative way what human rights are about, for otherwise they would coincide with all the ma-jor religions in the history of mankind.4 Also it is possible to establish positively, rather than merely negatively, the meaning of human rights. Via the critique and the negation of violence, human rights are really the defense and acknow-ledgment of the value and dignity of life in absolute and hence necessary terms. This can be explained as follows.

DIGNITY AND THE QUALITY OF LIFE

            Regarding the object and meaning of human rights there are different criticisms. The most corrosive of these, because the most alien and coming from skepticism, is that "Human rights are a defense of the right to a dignified human life. But what kind of life, whose life; how are the criteria to be defined and who is to define them?" In the background is the question, charged with irony: "After all -- what is life?"

            The central concept that constitutes all human rights is in fact the concept of life. However, this is not life in merely biological terms, but human life. Therefore, the issue here is to establish not, as is generally done, what is specifically hu-man in contrast to what is not-human or in-human (as in situa-tions of total degradation of human beings in conditions of sheer violence and "animality"), but what bestows upon hu-man beings a dignity superior to the rest of the beings in nature.

            In the context of human rights, the discussion about the dignity of human beings in relation to the rest of nature not only is a deviation from the framework of human rights, but introduces us to metaphysical discussions extraneous to the issue of human rights. The basis of human rights, as well as of solidarity and subsidiarity, is the metaphysics of the human person. Such metaphysics operates as the meaning giving source concerning the rationality of the discourse and praxis of human rights, solidarity and subsidiarity. But such a meta-physics must not begin from a definition or preconception -- whether philosophical, religious, or judicial -- about human rights, which would be to presuppose from the start the point of arrival. Hegelís position about this problem always should be kept in mind.

            This is the reason why, in order to understand human rights as universal and efficacious in resolving situations of violence and to avoid possible skeptical objections, here the founding of human rights will be not upon definitions but, on the contrary, upon comprehension of two levels of the pro-blematic. The first is to understand what situations are evi-dently and incontestably ones of respect and/or of violation of human rights in order to provide reasons for acting in one direction or the other. The second and more fundamental is to understand in what consists the human dignity we are to rescue when it is under challenge or endangered -- or to de-fend and stress when the circumstances are not unfavorable. This road is necessary in order legitimately to undertake a study of the philosophical foundation for human rights.

            However, the effort to establish from the very beginning what human dignity is relative to the other animal species is challenged by two very difficult obstacles. One is a casuistry bearing either strong anthropomorphic or naturalist tendencies. The second is the danger of a regressus ad infinitum in founding human dignity. Generally, in the order of expla-nation one encounters epistemological "leaps" which repre-sent the bankruptcy of the rational and justified explanations being sought. But the foundation of human rights must rest not on criteria of faith, but on rational evidence and on statements and judgments solidly argued and rationally justified.

            The issue therefore is to obviate one or the other path. The real challenge in grounding human dignity lies in establi-shing how human beings achieve dignity in themselves,5 which corresponds exactly to the problem concerning the uni-versality of human rights. Particularly in the context of human rights, to talk about human dignity is no different from talking about the quality of life. In fact, the critique, denunciation and negation of violence in positive terms is the effort to thema-tize human dignity, as well as the quality of life that the indivi-duals living in society have or could have.

            The kind of life that concerns and constitutes human rights is by no means the hypostasis of an idea; on the con-trary, preoccupation for human life is defined in immediate and direct relation with really existing individuals in the con-crete situations in which they live. Kant claimed that the full exercise of reason consists in being able to grasp the universal in the particular; the universal is life, and the particular are the concrete individuals, men and women, children and old people, whatsoever be their conditions of life and their cul-tural, political, ontogenetic and other features. Thus, preoccu-pation for human dignity and for rationally thematizing the quality of the life of individuals always means considering the specific situations in which human individuals exist and strive. The point then is to attend always to experience in general and to living experiences in particular (Erlebnis), leaving aside any prejudices in their regard, for human dignity is pursued in the way in which life is lived. In other words, human dignity is not a value which transcends living human experience; on the contrary, it derives from, and is grounded in, existence itself. I shall return to this later.

            The logic of the quality of life is an internal logic or logic of immanence. The issue always concerns oneís immanent life experiences and their connection with others. In fact, only after living does it make sense to thematize it, to question and reflect upon the whole set of special problems which cluster around the theme of the quality of life. With regard to human dignity and the quality of life there can be no strategy, because the elaboration of strategies in their regard would be to instrumentalize them and make them into an object or thing.

            In other words, talking about human dignity and the quality of life always and necessarily refers to everyday life, for not only do human beings actually exist in daily conscious activity, but it is precisely because of this that we can speak about the dignity of the human being. Any other analysis of human dignity and the quality of life, namely, one that is not grounded in everyday conscious experience or that does not at least refer thereto, ignores the inter-subjective, interpersonal, public -- in the sense of the Greek politeia -- political cha-racter of the dignity of human beings. Reference to the life-world means saving life from being taken for granted and from anonymity. E. Husserlís phenomenology brought to light that reference to the life-world and to everyday exper-ience is equivalent to stating the social, cultural and political meaning of the quality and dignity of human life.6

            From this standpoint, the achievement of human dignity and the quality of life in oneís own conscious experience, that is, in oneís individual and social life and on behalf of others living in community, is precisely concern with the ability to live humanly. Dignity then is not a value, a conscious exper-ience or reality that is given once and for all; and the same is true of the quality of life of individuals living in community. The task of describing what human dignity is and how it exists in a particular place and at a specific time is precisely the effort to regain a lost dignity; it is the effort to defend and broaden the conditions that enable human dignity to be ack-nowledged as having exemplar value, that is, as something to be sought in and for life. Hence, to be a subject of human dig-nity and of a human life with quality which can be recognized universally as desirable is precisely to be one who cares for human possibilities.

            To deepen insight into the fundamental problem of hu-man rights and their source of meaning and importance, namely, the problem of the defense of human life as one of dignity with a universally desirable quality, we shall now seek to make explicit in what this "care for human possibilities" consists.

POSSIBILITY AND LIMITS OF HUMAN RIGHTS

            Preoccupation for the very possibilities of human beings is the specific form of the defense of the entire set of funda-mental rights. That is, preoccupation with the violation of hu-man rights implies that human beings are not and cannot be understood or reduced exclusively to something that simply happens, that is, to a fact devoid of self-awareness and hence of self-respect.

            Indeed, the philosophy of human rights is opposed to all kinds of reductionism of human existence, whether it be na-turalist, historicist, religious, biological or other. Reductionism is commonly the unilateral affirmation of one aspect over all others. Thus to reduce a human being to a mere fact is to do violence to its human dignity, indeed to its very existence. A feature common to all kinds of reductionism is to comprehend the human being in terms of its conditions, stressing according to the dominant interest in each case one set of conditions over the others. This forgets that even though the human being is indeed conditioned in a manifold sense, he or she constitutes at the same time the condition of possibility of his or her own conditions. What interests us here is, therefore, the possi-bilities of human existence and the way they ground human rights.

            There are two steps in constituting human rights which enable us to understand best what we are calling here the "care for possibilities". One is to understand the human being as gifted with possibilities, all of which are to be actualized and developed through solidarity and subsidiarity (see later chap-ters). This in turn, enables one to see what is possible also as the limit of human rights. Let us proceed step by step.

            That human life neither exhausts nor consists uniquely in what happens to one at each place and every moment means that existence as free and dignified has movement temporal horizons and, hence, meaning. The basis of human rights is the specific life of each and every individual of the species, which means that precisely in human rights each oneís life acquires a necessary and absolute character. Still better, the dignity of human life can by no means be reduced to anything else, whether a value, an idea or an empirical fact; on the contrary, everything else serves as a means, tool or device contributing to unfolding the possibilities of human life. This coincides with the Kantian ethical theme that only human life is an end in itself, in relation to which all the rest are simply means.

            But the human being is not of itself an end; through action it elevates itself to becoming an end. The human being makes of himself an end through the constitution of horizons through which the meaning of his or her existence, along with that of others, becomes ever more clear in multiple mutual re-lations. The horizons are constituted by the individualís set-ting out on his behalf new tasks to be fulfilled or projects to be achieved. This founds the idea that it is the future, rather than the past, which gives meaning to the present. In turn, this means that the meaning of both past and present, along with their mutual relations, is to make this future possible in as many ways as can be imagined. Thus, the future emerges as the time dimension in which existence not only fulfills itself relatively to the past, but moreover discloses new and better alternatives or possibilities. An existence exclusively turned back to the past and "charged" only with the past is an exist-ence for which the future appears only as utopia, fantasy or madness.

            In turn, the present is a time of choices, the meaning of which is to make possible other acts and the horizon for fur-ther acts. In other words, any choice that is equivalent to closing off further actions and horizons of action can be called irrational. The rationality of choices consists in their being constitutive of further possibilities of actions. Human exist-ence is the summation of human actions, both those fulfilled and those that were not fulfilled, along with the consideration of how they were or were not fulfilled. We shall have the opportunity to enlarge upon this in the coming chapters.

            From this standpoint, horizon, future and possibilities imply each other -- so much so that it is in understanding their multiple relations that the meaning of the world and of human existence is manifest as a life gifted with possibilities, rather than being reduced merely to facticities or happenings. Hen-ce, in facing the threat of reduction to such a set of facticities, the issue is how to rescue and bring out the whole sphere of possibilities.

            Indeed, this is the real meaning of human rights, which consist in the elaboration of a solid, coherent and systematic critique of all kinds of violence in order to generate and en-large in every situation all possible room for human life, that is, in order for its dignity and possibilities to find conditions more favorable for their realization. Through that movement the human individual makes himself an end.

            As was said earlier, the negative meaning of the human rights consists in the radical critique of any kind of violence; this is a condition of possibility for both acknowledging and affirming human dignity. To be sure, the gradual limitation and then the total suppression of systematic violence cannot be achieved immediately or directly, but is the process upon which the basis of civil society is built or enlarged.

            In the process, the specific role of human rights consists in generating the room for respecting the fundamental rights and guarantees of individuals where those rights and gua-rantees do not exist or are very limited. On the contrary, in the case where there is room, even if relative, for respecting fun-damental civic, economic, political and social rights, the task of human rights consists in enlarging this space. In reality both generation and enlargement are two moments of one and the same historical and cultural process, namely the defense of life as having a universal and necessary character.

            Skepticism accuses the generation and extension of hu-man rights of being tainted by relativism. In response it should be said that actual praxis with regard to human rights shows that denouncing, criticizing and gradually suppressing vio-lence is no small matter. In the logic of the modern world, such a task encompasses various domains immune to skeptical re-futation. In fact, denouncing and eliminating violence con-stitutes the very first condition for the development of human life, at both the filogenetic and ontogenetic levels. Further, in the task of generating and enlarging the space for the dignity of the human person, denouncing violence and the violation of human rights is a task in which converge the concepts, prac-tices and interests of such diverse domains as ethics, law, po-litics, economics, philosophy, and religion. Hence multiple sciences, disciplines and practices merge in extending the field of human rights.

            However, regardless of the epistemological and metho-dological characterization of human rights, what is truly rele-vant is the fact that this confluence in the task of making life possible and dignified constitutes a permanent dialogue with daily life in the historical life-world. This cannot be under-stood simply as a metaphor, for what is at stake is the real existence of women, children and older people; the object is the concrete life of individuals living in specific community situations. It concerns, for example, the conditions of respect for human dignity in the street, in the company, in the family, in the hospital and in jails as the concrete circumstances in which human beings exist.

            The task is not to compare one situation with another, pretending perhaps groundlessly that the conditions of such marginal or minority groups as prostitutes, homosexuals, eth-nic minorities and prisoners can be assimilable to socially normal conditions. This would convert human dignity into an abstraction or an hypothesis with negative consequences for effectively uniting in a call for respect for human rights. On the contrary, work in human rights must recognize the par-ticularities of each situation and be able to situate in those terms the whole set of problems which converge under its title.

            This, in turn manifests the limits of the concept and pra-ctice of the human rights. The task remains of generating and enlarging the space in which life is possible. However, human rights are in no position to answer the question of what human individuals will do with the freedom achieved and guaranteed, that is, of what they will do with their own life when the space for freedom is created or enlarged. It is unfair to condemn the silence of human rights with regard to such questions; let us then restate the question.

            The effort for human rights consists in fighting that the space of freedom and dignity be guaranteed by the State and by all the organizations and forces of civil society, both within each country and in relations with others. The negative ex-pression of that task is the gradual or total suppression of vio-lence; its positive expression is making life possible and en-larging its possibilities. However, within the space that human rights have generated or enlarged, what individuals or the different organizations in which they gather and function de-cide is quite beyond the field of human rights. Some feel that the answer belongs properly to such sciences or disciplines as sociology, psychology and pedagogy. But what each one de-cides in the space opened by respect for his or her fundamental rights is, after all, each oneís matter. Indeed in that terrain the sciences do not enter, but only ideology in the broadest sense of the word. The whole task of human rights is to assure that sphere of autonomy of the human person. Chapter III will concentrate on making more explicit this notion of striving to keep open the possibilities.

ETHICS OF HUMAN RIGHTS

            In the specific language of human rights, respect for a personís dignity is equivalent to respect for his or her funda-mental rights. Freedom of human action is the common field in which the various forms of human freedom, namely, of association, thought, religious belief, free speech, movement, work, etc. converge.

            Intersubjectively, the human being is nothing more or less than oneís own actions; other considerations of the person remain outside the field of human rights and belong to poetry or literature, to psychology or psychiatry, or to religion. It is precisely in this sense that the whole problem of human rights is essentially political, that is to say, it is the problem of the personís relationships to others, with and to organizations, and to the state -- all of which constitute the political reality of human beings. To comprehend human beings in terms of hu-man rights one should focus on human action by which one constitutes the sphere of social and political relationships, which remains true even though one does not act or acts or avoids acting. This is precisely to understand the ethics of human rights.

            Thus, the meaning of human rights consists precisely in respect for the otherís possibilities or even for the other as possibility. Throughout the manifold interactions which con-stitute modern society, the other represents a possibility for everyone else and, therefore, for the whole society. In the context of discussions of human rights respect for the other implies an acknowledgment, implicit or explicit, that the otherís existence boosts the possibilities for one and all. Re-gardless of any further considerations of presuppositions, whether ethical, metaphysical or religious, in the framework of the philosophy of human rights respect towards the other is grounded on the acknowledgement that each oneís existence bears possibilities for everyone.

            First and negatively, the ontological consideration of the other in terms of possibilities cannot and must not be subject to any kind of strategies. That is, there is no room whatsoever for a priori predetermination with regard to the finalities, meanings or consequences of the possibilities that are the other; nor is there room for strategic predetermination of the significance of the otherís possibilities. If, on the contrary, the problem is to understand, thematize and make explicit those possibilities in relation to the interests of a community or of a determined social group -- or even in relation to the general development of the species -- the problem demands careful delimitation.

            The intensive and extensive meaning of the otherís pos-sibilities -- or of the possibilities that the other is -- can be determined rationally and reasonably only in the field in which those possibilities either develop or remain truncated and end up being eliminated, that is, in the field of the general conscious life-experiences lived out by the other, always in relation with the social, political, cultural, and historical context.

            That human rights both enable and at the same time de-mand the care for the possibilities of everyone else, implies that it is the task of the entire society and particularly of the state to permit and enable those possibilities to exist and to be actualized. The realization of such life experiences requires rigorous respect for the right to actualize or exercise them. This is nothing other than respect for life, and with it for the whole set of fundamental rights including those that are written in the Universal Declarations of the Human Rights and in the various Treaties, Conventions and Agreements on hu-man rights at different levels. At the same time it includes also fundamental rights that are not written and which properly speaking do not need to be written in order to be recognized and respected.7 This issue will be treated more extensively in the following section.

            In this context, caring is equivalent to the joint effort to enable life and for the possibilities of each individual to be ac-tualized, promoted or deployed in the best possible way. This theme of possibilities is expressed by the traditional phi-losophical and juridical title of individual freedom, but how-ever it be termed it is in the basic decisions at every moment and stage that life is made possible.

            Human beings do not make themselves at random, but existence is exercised through actions which it is legitimate to presuppose must be rational or at least reasonable.8 Human actions are empowered thanks to "faculties"9 such as that of choice which becomes the rational ground of human actions and their horizons.

            In a word, the impetus for human rights lies in the bold struggle to enable life to become always more possible via everyday decisions by individuals living in community. The object of the philosophy of human rights is not the content and mode of choices, but making room for persons to be able to choose freely. The object of these decisions and what do the consequent actions escapes the whole sphere of the human rights regardless of the philosophical foundation provided for them. Thus, human rights arise as an ethics concerned with generating and enlarging the necessary and sufficient gua-rantees for human beings responsibly to exercise their free-dom. Human rights do not make decisions; to pretend the op-posite would be their imminent and flagrant violation. For this reason human rights are the subject of many diverse disputes in which what is at stake is their universality.

THE LETTER AND THE SPIRIT

            To establish their universality human rights have a sin-gular characteristic in contrast with all other ethics in that they exist and operate both as externally normative (foro externo) and in oneís internal conscience (foro interno).First, human rights are among the norms of social life where judicial norms excel, including, of course, the systems and structures which accompany and articulate a nationís or societyís judicial system in the form of written texts, constitutional provisions, etc. The judicial system of a society constitutes, at the same time, the effective guarantee of respect for human rights by such means as constitutional, civil, criminal and administrative law. This first feature is difficult to describe in terms of other ethical systems and theories. Though human rights do not coincide with, or rest uniquely upon, judicial systems, it would be ethically and politically dangerous to affirm the op-posite, namely, that human rights can exist and be applied out-side or at the margin of the legal system of any social and political regimen.

            Nonetheless, it is equally true that human rights have, moreover, a strength that completely escapes the positive character of judicial norms. While they operate in the form of, and rest upon, the judicial system beyond the force of merely positive law, human rights have force at the level of the internal conscience. However, in sharp contrast with indivi-dualist ethics, and particularly with Kantian ethics and its de-rivatives, as well as with religious ethics, the internal con-science does not operate simply at the individual level, but on the contrary works at the level of the public conscience.10 This second distinctive feature of human rights is shared by tradi-tional ethics which rely essentially for their strength on the human conscience, that is, on the personís internal con-science.

            At the very center of the double feature of human rights, lies a strong difference between two major parties. On the one hand, there are the partisans of a certain normative positivism of human rights. This would be circumscribed by clearly established cultural patterns. From this point of view it is very difficult to speak of a universality of human rights, for no formal validity would be compatible with the cultural speci-ficities of any one country, region or continent. The univer-sality of human rights would be identical with the formal cha-racter of its principles, but both universality and formalism would be totally incongruent with specific problems con-cerning ethnology, cultural or social anthropology, linguistics, etc.

            On the other hand, human rights can be seen as closer or equal to natural moral law. From this point of view, human rights would be co-natural to the human person, so that by the mere fact of existing human beings would have fundamental rights which, therefore, are inalienable. Their suppression would be equivalent to the total suppression of life as human or its value. Certainly, it is possible to distinguish between the positions of a strong and a moderate ius naturalis. In any case, in this second posture, the universality of human rights is based on a transcendental or metaphysical community that surpasses any geographical barriers, or traditional or cultural frontiers.

            Whether one adopts one posture or the other, undeniably human rights exist and are guaranteed by a political and ju-ridical force, as well as by their strength at the level of internal public conscience. Hence, one speaks of denouncing at both the national and the international level, and through various media, violations of human rights. Generally the transmitters and articulators of the moral force of human rights are the various Non-Governmental Organizations (NGOs) in the spe-cific forms in which they work and coordinate with each other on an international scale. Everyone knows the extent to which, for example, states reject and are really bothered by the various campaigns denouncing their violations of human rights.

            In any case, instead of seeking a simple agnostic or syn-cretic compromise between the defenders of a positivization, and hence a juridical circumscription of human rights, on the one hand, and, on the other, the defenders of a certain ius naturalis, the truly relevant problem here is to understand the specificity of human rights. As has been said above, such specificity is the necessary or factual combination of the ju-ridical reality and ethical power of human rights. This spe-cificity marks the ontological, logical and epistemological contrast of human rights vis-ŗ-vis any other normative system or ethic.

NOTES

            1. Such a tendency exists also with equal strength in the so-called developing countries or underdeveloped countries. However, the situation I am sketching for the countries belonging to the "First World" can be a much better illu-stration of the state of the matters I am presenting.

            2. Cf. C.S. Nino, Etica y derechos humanos. Un ensayo de fundamentaciůn, Barcelona: (ed. Aries S.A., 1989).

            3. Regarding technology as a criteria for rationality, see among others the already classic book by J. LadriŤre, The Challenge Presented to Cultures by Science and Technology (Paris: Unesco, 1977).

            4. I do not mean to say by this that the meaning of all the major religions of the world consists in rejecting violence; however, such a rejection is one of the minimal common denominators of all sorts of religions.

            5. I recognize the virtual links between a philosophical foundation of human rights -- and particularly in the present case clarifying transparently the universality of the human rights -- and possible metaphysical and religious interests. Concerning the former I have already said something, without precluding further possible references to the subject. Such however is not my main goal in this text.

            The relation between the foundation of human rights and virtual religious interests and presuppositions is, perhaps, more delicate. At first glance, at least for a certain number of "theologians" belonging to some major contemporary reli-gions to pretend to establish both rationally and reasonably the dignity of the human being in terms simply of oneself could be seen as a real scandal. However the line of argu-mentation followed here does not wish to be atheist in any sense of the word, and hence neither in the sense of any of the present major religions. This is partially because that would be to presuppose somehow precisely that which is to be avoided, namely departing from definitions and/or presuppositions of any kind, but mainly because establishing links bet-ween human dignity and a possible "transcendent dignity", namely, God in any of the possible understandings and deno-minations is the task neither of human rights, nor conse-quently of the foundation of human rights. From this stand-point the problem concerning the relation of the human being with transcendence of any sort is the exclusive concern of each person. In contrast, the fundamental problem of under-standing and establishing the dignity of human beings in terms of humans themselves, rather than being a self-referential hy-pothesis (which some religious horizons would consider to be "immanentist") truly opens upon further religious or meta-physical problems which, regardless of the sphere of human rights, could be derived by, or from, each individual. My claim is that the fundamental problem concerning the univer-sality of human rights allows no other alternative than stating the problem about the individual-transcendence relation in these terms; any alternative sooner or later reveals a petitio principii vitiating the universality of the principles and the realization of respect for human rights.

            6. Reference to the life-world is also reference to the his-torical character and to the transcendence of the life-world. We do not want here to take such a reference for granted; it does not belong to the immediate frame of our analyses in this book. However the connections between the life-world, everyday experience, and history or tradition, in spite of our-selves, remain here as a footnote.

            7. In view of the need to present here some example of fundamental human rights not explicitly registered in the uni-versal declarations, whether international or national, there is, for instance, the (natural) right to subversion. In the Levia-than, Hobbes considers the right to subversion on the behalf of a people or a nation as having the status of a natural right, and hence to be of the same level as the right to live, to express ideas, etc. However, along the path that leads from Hobbes to Locke, or more concretely to Rousseau and the French En-lightenment, the natural right to subversion falls into total oblivion and ends by not even being mentioned. The details of this history need to be left aside here, but it serves as an example of other rights not "officially" and "explicitly" regis-tered which nonetheless can reasonably be conceived.

            Concerning the right to subversion, the task of a phi-losophy of human rights consists in pointing out its possibility and rational validity in view, for instance, of the existence of unjust laws, oppressive and repressive regimes, and the like. The issue about the "power to convoque" this right to sub-version at a certain moment, however, escapes the frame of human rights and is rather the task of the politician, the so-ciologist or pedagogue. This is analogous to the right to live, in the sense presented above.

            8. I do not pretend to enter here into the very technical distinction between "rationality" and "the rational", on the one hand, and "reasonability" and "the reasonable", on the other. The idea of rational is much more "classic" and de-finitely typical of modernity. The distinction from this of what is reasonable is the result of more recent analyses; what is really at stake is the justification and argumentation of what is rational itself. In other words, what is reasonable concerns in what is rational. Concerning this distinction see N. Rescher, Rationality: A Philosophical Inquiry into the Nature and the Rationale of Reason (Oxford: Oxford University Press, 1988).

            9. The use of the expression "faculty" should not be un-derstood here in the medieval sense still valid in Kantís analyses of the "faculties" of reason. On the contrary, by "faculty" I refer to making-possible and promoting. For a criticism of the category of faculty see my "What is the Need for Reason" (forthcoming).

            10. There are several difficulties around the main idea of this paragraph. I want to point them out without entering into the discussion of their acceptability or the details and the background that explain them or make them possible. First, I want to leave aside here the question concerning the validity of individual ethics. There is a burning and ongoing debate among those who assess ethics to be a matter regarding indi-viduals or also every individual, and those who see ethics as eminently social, cultural or political. The point of difference lies in the issue of the rationality of values and of ethical ac-tions. Second, and closely related to the former, is also the philosophical issue -- which extends as well to such other domains as ecology, sociology, psychology -- of whether the idea of consciousness as eminently individual in some tra-ditions should be extended to the idea of a collective, social, or generic consciousness. The debate focuses on the her-meneutics of tradition, the general theory of consciousness and an ontology of consciousness. The first and the second points require major attention, not possible in the present context.