The Wayward Scholar

The reading “Elements of a Theory of Human Rights” authored by Amartya Sen does an in-depth analysis and evaluation of the propositions related to human rights as well as combing through philosophical theories of morality, ethics and social justice. Although, Sen has comparative arguments on the multiple levels of human rights discourse due to the complexity of the article the following is merely a short summary of the discussion and findings. Amartya Sen argues that there is a contested concept of human rights: what they are, what they detail and what makes them distinguishable from freedoms and legislative rights in societies. The objective is discovering a uniform method of understanding and theorizing human rights. There is concern about whether or not human rights can be applicable to social and economic rights and how the design of current social and economic structures inhibit the enforcement of human rights. The first philosophy that Sen looks at is Jeremy Bentham and utilarianism or utility ethics.  

Utility ethics being the theory that ethical standing is based on providing what is in the best interest for a majority over a minority of persons. This utility ethics presents itself in variable forms throughout all philosophies, the notion that there is a majority and a minority however becomes problematic when determining freedoms and rights. Sen questions legislative rights [often created from utility ethics perspective] and how there can be overlap with legislative rights with human rights and if enforcing them through legislative laws is necessary and even problematic.  

In the article Sen argues that human rights are a collection of freedoms, obligations or duties however rights are not all measured equally to one another. This revisits utility ethics with Mill where there is a notion of quality of needs. This means that the ethics can change based on the demands at hand. There is more emphasis on the need for a human rights theory to contend and engage with such issues. Sen states that “a theory of human rights can, therefore, allow considerable internal variations, without losing the commonality of the agreed principle of attaching substantial importance to human rights (and to the corresponding freedoms and obligations) and of being committed to considering seriously how that importance should be appropriately reflected” (323). 

  Again, there is disparity with the lack of foundational human rights theory with utility ethics, where quality over quantity matters and it matters differently to diverse range of persons. There is an inevitable symbolic interaction with everything each individual presumably is subject to. In the article, Bentham also validly argues real vs imaginary rights. Real rights being tangible law and legislation written for everyone and is ultimately enforceable. Imaginary rights are moral and ethical dilemmas without any true grounding aside from values and beliefs which can be rather diverse from one society to the next. Though, the commonality between real and imaginary rights is ethics for all and can be ultimately beneficial for everyone. The objective would be to make many of the imaginary ethical law into real rights and real law. Yet, there is more contestations of rights when trying to determine how rights and laws are created. Do imaginary human rights create real rights or do real rights influence the creation of imaginary human rights? Sen refers to this anomaly as “child of law” or “parent of law.”  

The next portion of the article evaluates processes, opportunities and capabilities. Looking at freedom of processes is a way of attempting to dismantle the relationships between rights, freedoms and duty that is comprehensible. Freedom of processes includes the understanding that forcing any act is a violation of freedoms. The example given is of a woman who is forced to stay inside or alternatively forced to go outside; regardless if she were to make the decision to do so on her own. It is an active removal of a person’s autonomy, independence and power to govern themselves. 

 This is parallel with requiring particular obligations that one would not prefer to do on their own merit, forcing them to surrender their freedom to choose without protest. These micro-level experiences should be fairly calculated into the construction of human rights and human rights theory. Additionally, having these freedoms and rights present is not enough for there must be opportunity and capability available. Access and opportunity to obtaining and exercising these rights is imperative and also a human right in its own.  

The capability-based approach looks at privileges and how two sets of people with similar or identical means can still have variable opportunities. The example Sen provides is of a person who is abled bodied versus disabled bodied persons with the same education, income, community…etc. will still have major contrasting opportunities. This is a critical paradigm to evaluate according to the article and is crucial to determining the functioning of human rights. Advantages and disadvantages of all dimensions must be taken into account. 

  Sen continues to develop arguments by examining critiques of the capabilities approach and the establishment of equitable institutions as the most appropriate resolution. He acknowledges a Kantian perspective in determining human rights theory as well in regard to Immanuel Kant’s ideas on reasoning, rationalization and duty as the key to moral ethics. Sen concludes with discussing how historical contexts, examples are most notable and significant in formulating future declarations and examinations of freedoms/rights. It is desired that human rights are examined not only as a theory but as a discipline that can be put into practice through law, legislation and through individual duty and responsibility. 

  I do want to challenge Sen’s ideology on determining human rights and managing a human rights discipline. I think that examining cultural influences and the existence of variable moral ethical philosophies in different societies can have an impact on human rights and social justice theory. Each society provides a unique challenge on how to determine human rights and creative solutions to those challenges as well. For example, in more Western societies the philosophy of a meritocracy is a popular social and moral determinant. Although, meritocracy can be argued as separate from a true model of ethical philosophy there exists dimensions of meritocratic principles in Western cultures, the U.S in particular. Meritocracy is a system that generally determines a person’s opportunities, status and social positioning based on their abilities. Arguably, these abilities are linked to specific duties and responsibilities (Kantianism) that an individual may be obligated to perform as well as conditions that must be met in order to maintain said status. In a meritocratic society there is also the implied condition that it is one’s duty to use their personal merits and abilities for the benefit for everyone (utility ethics). Simply, the assumption that it is necessary to share with everyone if it is considered to be for the “betterment of society”.  

  A great example would be Steve Jobs; the inventor of the Apple iPhone had a duty to share his innovation with others and distribute his knowledge to others. Maintaining Apple products for his own personal use without distribution would be perceived as unethical because society benefits from his abilities. In reality, this is not always quite true. In a case study of Alfred Nobel whom invented dynamite for the purposes of facilitating mining and the improvement of construction work and thus shared his innovation. In which was quickly found to have a variety of military applications which led to the weaponizing of dynamite and eventual invention of grenades, tanks, mines…etc. arguably linked to the violence, weaponized aggression, modern warfare with the use of guns and other weapons. That have led to the oppression of numerous people through gun violence, war and control ever since at rates more efficient and applicable than ever before. Because of his innovation and because he shared this with everyone, does this in some sense make him directly responsible for the abuse of his invention? Alfred Nobel surely thought so and founded the Nobel Peace Prize actually designed and organized to encourage human rights activism and rewards those who remain exceptionally convicted and successful in their endeavors. With meritocracy it demands that every person’s duty is to share with everyone. 

  Considering our increasingly globalized and interconnected world, human rights would theoretically be universally determined with integration as the forefront of the process. Meritocracy, if “absorbed” into human rights could consequently become applied to everyone in some form – thus in a sense eliminates one’s freedoms and personal rights. By forcing those to do something they may not have otherwise done on their own or simply forcing them in any means. Thus, in direct violation of freedoms of processes and also encourages segregation between people based on merit. Creating a system of unfair opportunity and capabilities.  

However, to ignore meritocracy as a real structure and culturally specific moral philosophy and refusing to absorb or consider it as a philosophy when determining universal human rights is also a direct violation of human rights that allows freedom of expression of any values or beliefs, traditions and to practice one’s culture. The two contradict themselves. The natural consequences and punishment is the guilt that they could have made lives better for everyone or the guilt that they created a weapon that led to even greater disparity. Each are ethical and moral dilemmas that are situated along the spectrum of obstacles in determining human rights theory. 

Ted Rall from the Japan Times (2015) published the article “Screw meritocracy: reward the lazy and stupid.” Ted examines meritocratic systems that exist specifically in the U.S as comparable to Japan. However, interestingly he seems to offer that meritocracy exists everywhere however he does focus in on the United States at having this flawed system. Ted argues in the context of Steve Jobs that living in a meritocracy is arbitrary way of assigning value and privilege to those whom have greater abilities over others.  

Some of these abilities such as intelligence is arguably a hereditary predisposition that not all people will meet the societal standards of. It is important that people work hard and receive recognition because they are likely to contribute more to society with inventions, production and distribution of goods. However, those who are not as inclined to work as hard may alternatively have more time to spend being altruistic towards other people and work on providing needs that do not require the extensive hard work that people like Steve Jobs have to put forth. The particular quote: “I work ridiculously hard. Yet I am perfectly fine with earning the same exact amount of money as someone who doesn’t work at all. I enjoy my life. Why shouldn’t a person whose best life involves less, or even no work, enjoy it without having to worry about starving to death?” stands out as a valid point.  

Ted concludes that it is ultimately unfair to assign value and worth based on standards of merit; merit that has already been subject to bias previously. A system that values one group of people and undervalues the other for any reason likely does not possess the qualities that permit human rights and freedoms to thrive and become established.