Philosophy of human rights

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The philosophy of human rights attempts to examine the underlying basis of the concept of human rights and critically looks at its content and justification. Several theoretical approaches have been advanced to explain how and why the concept of human rights developed.

One of the oldest Western philosophies on human rights is that they are a product of a natural law, stemming from different philosophical or religious grounds. Other theories hold that human rights codify moral behavior which is a human social product developed by a process of biological and social evolution (associated with Hume). Human rights are also described as a sociological pattern of rule setting (as in the sociological theory of law and the work of Weber). These approaches include the notion that individuals in a society accept rules from legitimate authority in exchange for security and economic advantage (as in Rawls) – a social contract. The two theories that dominate contemporary human rights discussion are the interest theory and the will theory. Interest theory argues that the principal function of human rights is to protect and promote certain essential human interests, while will theory attempts to establish the validity of human rights based on the unique human capacity for freedom.[1]

Natural rights[edit]

Main articles: Natural law and Natural right

Natural law theories base human rights on a "natural" moral, religious or even biological order that is independent of transitory human laws or traditions.

Socrates and his philosophic heirs, Plato and Aristotle, posited the existence of natural justice or natural right (dikaion physikon, δικαιον φυσικον, Latin ius naturale). Of these, Aristotle is often said to be the father of natural law,[2] although evidence for this is due largely to the interpretations of his work by Thomas Aquinas.[3]

The development of this tradition of natural justice into one of natural law is usually attributed to the Stoics.[4]

Some of the early Church Fathers sought to incorporate the until then pagan concept of natural law into Christianity. Natural law theories have featured greatly in the philosophies of Thomas Aquinas, Francisco Suárez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, and John Locke.

In the 16th century, asked by the Spanish monarchs to investigate the legitimacy of claims to land dominion by the indios of Latin America, Francisco de Vitoria expounded a theory of natural rights, especially in his famous Relectio de Indis.[5]

In the 17th century Thomas Hobbes founded a contractualist theory of legal positivism beginning from the principle that man in the state of nature, which is to say without a "commonwealth" (a state) is in a state of constant war one with the other and thus in fear of his life and possessions (there being no property nor right without a sovereign to define it). Hobbes asserted natural law as how a rational human, seeking to survive and prosper, would act; the first principle of natural law being to seek peace, in which is self-preservation. Natural law (which Hobbes accepted was a misnomer, there being no law without a commonwealth) was discovered by considering humankind's natural interests, whereas previous philosophers had said that natural rights were discovered by considering the natural law. In Hobbes' opinion, the only way natural law could prevail was for human beings to agree to create a commonwealth by submitting to the command of a sovereign, whether an individual or an assembly of individuals. In this lay the foundations of the theory of a social contract between the governed and the governor.

Hugo Grotius based his philosophy of international law on natural law. He wrote that "even the will of an omnipotent being cannot change or abrogate" natural law, which "would maintain its objective validity even if we should assume the impossible, that there is no God or that he does not care for human affairs." (De iure belli ac pacis, Prolegomeni XI). This is the famous argument etiamsi daremus (non esse Deum), that made natural law no longer dependent on theology.

John Locke incorporated natural law into many of his theories and philosophy, especially in Two Treatises of Government. Locke turned Hobbes' prescription around, saying that if the ruler went against natural law and failed to protect "life, liberty, and property," people could justifiably overthrow the existing state and create a new one.

The Belgian philosopher of law Frank Van Dun is one among those who are elaborating a secular conception[6] of natural law in the liberal tradition. There are also emerging and secular forms of natural law theory that define human rights as derivative of the notion of universal human dignity.[7]

The term "human rights" has replaced the term "natural rights" in popularity, because the rights are less and less frequently seen as requiring natural law for their existence.[8] But in fact, the campaigning for the legal recognition of new "human rights" (such as LGBT rights, or euthanasia) must necessarily be based on the assumption that some kind of "Natural Law" commands the recognition of those "rights". The debate on human rights remains thus a debate around the correct interpretation of Natural Law, and human rights themselves a positive, but reductionist, expression thereof[9]

Social contract[edit]

The English philosopher Thomas Hobbes suggested the existence of a hypothetical social contract where a group of free individuals agree for the sake of preservation to form institutions to govern them. They give up their natural complete liberty in exchange for protection from the Sovereign. This led to John Locke's theory that a failure of the government to secure rights is a failure which justifies the removal of the government, and was mirrored in later postulation by Jean-Jacques Rousseau in his "Du Contrat Social" (The Social Contract).

International equity expert Paul Finn has echoed this view:

The relationship between government and the governed in countries which follow the English law tradition is a fiduciary one. In equity law, a politician's fiduciary obligations are not only the duties of good faith and loyalty, but also include duties of skill and competence in managing a country and its people. Originating from within the Courts of Equity, the fiduciary concept exists to prevent those holding positions of power from abusing their authority. The fiduciary relationship between government and the governed arises from the governments ability to control people with the exercise of its power. In effect, if a government has the power to abolish any rights, it is equally burdened with the fiduciary duty to protect such an interest because it would benefit from the exercise of its own discretion to extinguish rights which it alone had the power to dispose of.[10]

Reciprocity[edit]

The Golden Rule, or the ethic of reciprocity states that one must do unto others as one would be treated themselves; the principle being that reciprocal recognition and respect of rights ensures that one's own rights will be protected. This principle can be found in all the world's major religions in only slightly differing forms, and was enshrined in the "Declaration Toward a Global Ethic" by the Parliament of the World's Religions in 1993.

Soviet concept of human rights[edit]

Soviet concept of human rights was different from conceptions prevalent in the West. According to Western legal theory, "it is the individual who is the beneficiary of human rights which are to be asserted against the government", whereas Soviet law declared that state is the source of human rights.[11][12] Therefore, Soviet legal system regarded law as an arm of politics and courts as agencies of the government.[13] Extensive extra-judiciary powers were given to the Soviet secret police agencies. The regime abolished Western rule of law, civil liberties, protection of law and guarantees of property.[14][15] According to Vladimir Lenin, the purpose of socialist courts was "not to eliminate terror ... but to substantiate it and legitimize in principle".[13]

Crime was determined not as the infraction of law, but as any action which could threaten the Soviet state and society. For example, a desire to make a profit could be interpreted as a counter-revolutionary activity punishable by death.[13] The liquidation and deportation of millions peasants in 1928–31 was carried out within the terms of Soviet Civil Code.[13] Some Soviet legal scholars even asserted that "criminal repression" may be applied in the absence of guilt.".[13] Martin Latsis, chief of the Ukrainian Cheka explained: "Do not look in the file of incriminating evidence to see whether or not the accused rose up against the Soviets with arms or words. Ask him instead to which class he belongs, what is his background, his education, his profession. These are the questions that will determine the fate of the accused. That is the meaning and essence of the Red Terror."[16]

The purpose of public trials was "not to demonstrate the existence or absence of a crime – that was predetermined by the appropriate party authorities – but to provide yet another forum for political agitation and propaganda for the instruction of the citizenry (see Moscow Trials for example). Defense lawyers, who had to be party members, were required to take their client's guilt for granted..."[13]

Other theories of human rights[edit]

The philosopher John Finnis argues that human rights are justifiable on the grounds of their instrumental value in creating the necessary conditions for human well-being.[17][18] Interest theories highlight the duty to respect the rights of other individuals on grounds of self-interest:

The biological theory considers the comparative reproductive advantage of human social behavior based on empathy and altruism in the context of natural selection.[20][21][22]

Main article: Human security

Human security is an emerging school of thought which challenges the traditional, state-based conception of security and argues that a people-focused approach to security is more appropriate in the modern interdependent world and would be more effective in advancing the security of individuals and societies across the globe.

Ipso Facto Legal Rights Theory

According to the recommendation of human rights scholar Barrister Dr Mohammed Yeasin Khan LLB Honours, LLM, PhD, PGDL, Barrister-at-Law (Lincoln’s Inn), UK: ‘Right’ being synonymous of ‘legal’ and antonymous of both ‘wrong’ and ‘illegal’, every ‘right’ of any human person is ipso facto a ‘legal right’ which deserves protection of law and legal remedy irrespective of having been written into the law, constitution or otherwise in any country.[23]

Critiques of human rights[edit]

The idea of human rights is not without its critics. Jeremy Bentham, Edmund Burke, Friedrich Nietzsche and Karl Marx are examples of historical philosophers who criticised the notion of natural rights. Alasdair MacIntyre is a leading contemporary critic of human rights. His criticisms are discussed below.

Edmund Burke on Natural Rights[edit]

Edmund Burke was an 18th-century philosopher, political theorist and statesman largely associated with the school of conservatism.[24] His views on natural rights are best articulated in Reflections on the Revolution in France, which directly attacked the Declaration of the Rights of Man and the Citizen (1789) and its authors.[25]

A great deal of Burke’s uneasiness of the Declaration lies in the drafter’s abandonment of the existing establishment.[26] For Burke, constitutional legitimacy was derived not from the Rousseauian doctrine of general will,[27] but from a form of inherited wisdom.[28] He thought that it was arrogant and limiting for the drafters of the Declaration to cast aside traditional notions that had stood the test of time.[29][30] Although it may seem to the drafters that they had abandoned the shackles of tradition, for Burke, they had limited their findings to the narrow minded conception of one person or group.[31] This is the grounding from which Burke’s attack of the Declaration is based.

Burke did not deny the existence of natural rights; rather he thought that the a priori reasoning adopted by the drafters produced notions that were too abstract to have application within the framework of society.[32] In stating that “the pretended right of these theorists are all extremes; and in a proportion as they are metaphysically true, they are morally and politically false”,[29] Burke identified that abstract rights are meaningless without a societal framework:

In contrast to Locke, Burke did not believe the purpose of government was to protect pre-existing natural rights;[33] he believed “the primitive rights of man undergo such a variety of refractions and reflections, that it becomes absurd to talk of them as if they continued in the simplicity of their original direction.”[29] For Burke it was the government, as a result of long social evolution, that transformed the meaningless natural rights into the practical advantaged afforded to citizens.[34]

It was not the rights themselves, as much as the level of abstraction and the placing of them above government which Burke found dangerous.[35] He stated “those who pull down important ancient establishments, who wantonly destroy modes of administration, and public institutions… are the most mischievous, and therefore the wickedest of men”.[29] For Burke politics had no simple answers, and definitely no overarching, universal maxims such as those expressed in the Declaration.[36] Rather the rights afforded to individuals were to be assessed in the context of the social framework.[37] However, he acknowledged that the simplicity of the Declaration was attractive and feared its ability to undermine social order.[38] Burke believed that the absolute nature of these principles of abstraction were inherently revolutionary; they were uncompromising and any derogation from the principles a reason to rise up in arms.[39] This was a problem because;

The natural rights “Against which there can be no prescription; against these no agreements is binding”[29] gave the revolutionaries the tools to destroy the very society that Burke believed afforded them with rights. In this way Burke thought the rights contained in the Declaration would lead to “the antagonist world of madness, discord, vice, confusion, and unavailing sorrow.”[29]

Jeremy Bentham on Natural Rights[edit]

The 18th Century Utilitarian philosopher, Jeremy Bentham, criticised the Declaration of the Rights of Man and the Citizen in his text Anarchical Fallacies. He famously asserted that the concept of natural rights was “nonsense upon stilts”.[40] Bentham criticised the Declaration both for the language that it adopted, and the theories it posited, stating; “Look to the letter, you find nonsense; look beyond the letter, you find nothing.”[41]

One of the critiques Bentham levelled against the Declaration was its assertions of rights in the form of absolute and universal norms.[42] He identified that absolute rights possessed by everyone equally are meaningless and undesirable. They lack meaning because if everyone has, for example, unbounded liberty there is nothing precluding them from using that liberty to impinge on the liberty of another. In this way “human government and human laws ”[43] are required to give some bounds to rights in order for them to be realised.[44] Even if advocates of absolute rights recognise this necessity, as the proponents of the Declaration did, Bentham argues that it is in vain .[44] “It would be self-contradictory, because these rights are, in the same breath which their existence is declared, declared to be impresciptable; and impriscriptable… means nothing unless it excludes the interference of the laws.”[45]

In addition to this contradiction, Bentham warned of the dangers of couching rights in absolute terms. A government that is able to protect every person’s right absolutely and equally is a utopian aspiration, but the Declaration couches it as the conditions for its legitimacy.[46] “Against every government which fails in any degree of fulfilling these expectations, then, it is the professed object of this manifesto to excite insurrection.”[47] Bentham does not deny that there are some laws that are morally wrong; his uneasiness is in easily justifying a revolutionary call to arms – with the violence, chaos and destruction associated with it – based on a repugnant law.[48]

Of the theoretical faults, Bentham thought that natural rights were a construction adopted to pursue the selfish aims of the drafters, of which no logical basis could be found.[49] He acknowledged that it may be desirable to have rights, but “a reason for wishing that a certain right were established, is not that right; want is not supply; hunger is not bread.”[50] To establish rights existed by virtue of laws enacted by a sovereign was logically sound, but to assert rights established by nature was not.[49] “A natural right is a son that never had a father.”[51]

Not only did Bentham think that there was no logical basis for the theory of natural rights, but he believed that their individualistic approach was harmful to society.[52]

Bentham thought that society was dependent upon peoples’ ability to pursue the greater good, not just the short term satisfaction of their own desires. The advancement of natural rights, which he saw as celebrating selfishness, was to provide the means to breakdown the social community that makes human life bearable.[54]

Marxist Critique of Human Rights[edit]

In On the Jewish Question, Karl Marx criticized Declaration of the Rights of Man and of the Citizen as bourgeois ideology:

Above all, we note the fact that the so-called rights of man, the droits de l'homme as distinct from the droits du citoyen, are nothing but the rights of a member of civil society – i.e., the rights of egoistic man, of man separated from other men and from the community. ... according to the Declaration of the Rights of Man of 1791:
"Liberty consists in being able to do everything which does not harm others."
Liberty, therefore, is the right to do everything that harms no one else. The limits within which anyone can act without harming someone else are defined by law, just as the boundary between two fields is determined by a boundary post.

and that:

Security is the supreme social concept of bourgeois society, the concept of the police, the whole society exists only to ensure each of its members the preservation of his person, his rights and his property.

Thus for Marx, liberal rights and ideas of justice are premised on the idea that each of us needs protection from other human beings. Therefore liberal rights are rights of separation, designed to protect us from such perceived threats. Freedom on such a view, is freedom from interference. What this view denies is the possibility — according to Marx, the fact — that real freedom is to be found positively in our relations with other people. It is to be found in human community, not in isolation. So insisting on a regime of rights encourages us to view each other in ways which undermine the possibility of the real freedom we may find in human emancipation.

Marxist critical theorist Slavoj Žižek argued that: "liberal attitudes towards the other are characterized both by respect for otherness, openness to it, and an obsessive fear of harassment. In short, the other is welcomed insofar as its presence is not intrusive, insofar as it is not really the other. Tolerance thus coincides with its opposite. My duty to be tolerant towards the other effectively means that I should not get too close to him or her, not intrude into his space—in short, that I should respect his intolerance towards my over-proximity. This is increasingly emerging as the central human right of advanced capitalist society: the right not to be 'harassed', that is, to be kept at a safe distance from others." and "universal human rights are effectively the right of white, male property-owners to exchange freely on the market, exploit workers and women, and exert political domination."[55]

British sociologist Robert Fine claims that the key to Marx’s argument was to rebut the radicalism Bauer espoused: a radicalism that not only denied the rights of Jews but at once trashed the rights of man and citizen as such. What Marx stood for in the Jewish Question as in his earlier writings more generally was a philosophy of right. Fine believes what Marx stood against was a spiritless radicalism that revealed its inhumanity not only through its hostility to Jews but also through its hostility to the idea of right." Moreover, Fine argued that Marx argued that the society that gives rise to the idea of rights is the same as that which gives rise to the commodity form. They are two sides of the same medal. It is a society based on production by independent producers whose contact with each other is mediated through the exchange of products on the market. These producers are formally free to produce what and how much they wish. They are formally equal in that no producer can force others to produce against their will or expropriate their products against their will. They are self‐interested in that they are all entitled to pursue their own private interests regardless of what others think or do. Their contact with other producers takes the form of free and equal exchanges in which individuals exchange their property in return for the property of another and this exchange of unneeded things in return for useful things appears to be done for the mutual benefit of each party.

Fine also claims that for Marx, exchange relations appear to be formed among free and equal property owners who enter a voluntary contract in pursuit of their own self‐interest. Fine cites what he believes to be Marx's point about how in exchange lies the clue to all modern conceptions of freedom and equal right:

Although individual A feels a need for the commodity of individual B, he does not appropriate it by force, nor vice versa, but rather recognise one another reciprocally as proprietors, as persons whose will penetrates their commodities. Accordingly, the juridical moment of the Person enters here… all inherent contradictions of bourgeois society appear extinguished ... and bourgeois democracy even more than the bourgeois economists takes refuge in this aspect.: (Marx, Grundrisse:243, 251)

Furthermore, the parties to the exchange must place themselves in relation to one another as persons whose will resides in those objects and must behave in such a way that each does not appropriate the commodity of the other and alienate his own, except through an act to which both parties consent. Marx characterised this sphere of commodity exchange as ‘a very Eden of the innate rights of man’ – the realm of Freedom, Equality, Property and Bentham:

‘Freedom because both buyer and seller of a commodity ... are determined only by their own free will....Equality because each enters into relations with the other as with a simple owner of commodities and they exchange equivalent with equivalent. Property because each disposes only what is his own. And Bentham because each looks only to his own advantage. The only force bringing them together is the selfishness, the gain and the private interest of each.: (Marx, Capital 1: 280)

Thus according to Robert Fine, Marx's basic criticism was that within political society people were seen as co-operative, while in their economic roles they were competitive, individualistic and egoistic. In short, the theory of rights expressed the division and alienation of human beings. [56]

Alasdair MacIntyre on Human Rights[edit]

Alasdair MacIntyre is a Scottish philosopher who has published a number of works in a variety of philosophical fields, including political philosophy, ethics and metaphysics.[57] MacIntyre criticises the concept of human rights in After Virtue and he famously asserts that “there are no such rights, and belief in them is one with belief in witches and in unicorns.”[58]

MacIntyre argues that every attempt at justifying the existence of human rights has failed. The assertions by 18th century philosophers that natural rights are self-evident truths, he argues, are necessarily false as there are no such things as self-evident truths. He says that the plea 20th century philosophers made to intuition show a flaw in philosophical reasoning. MacIntyre then outlines that, although Dworkin is not wrong in asserting that the inability to demonstrate a statement does not necessitate its falsity, the same argument can be applied in relation to witches and unicorns.[58]

MacIntyre made this critique of human rights in the context of a wider argument about the failure of the Enlightenment to produce a coherent moral system.[59] Philosophers of the enlightenment sought to cast aside the discredited notions of hierarchy and theology as justifications for morality. Instead, MacIntyre argues, the enlightenment placed the individual as the sovereign authority to dictate what is right and wrong. However allegiances to historical notions of morality remained and philosophers sought to find a secular and rational justification for existing beliefs.[60] The problem, MacIntyre maintains, is that theological morality was developed to overcome defects in human nature; to posit an example of the ideal. Without this notion of ‘perfect humanity’ the only remaining foundation to build a moral theory on was the foundation of imperfect human nature.[61] For MacIntyre, the result was a collection of moral stances, each claiming to have a rational justification and each disputing the findings of the rival notions.[59]

MacIntyre believes that a number of the moral debates that occur in society can be explained as a result of this failure of the “Enlightenment Project”.[62] Human rights are an example of a moral belief, founded in previous theological beliefs, which make the false claim of being grounded in rationality.[63] To illustrate how the principles lead to conflict, he gives the example of abortion; in this case the right of the mother to exercise control over her body is contrasted with the deprivation of a potential child to the right to life. Although both the right to liberty and the right to life are, on their own, considered morally acceptable claims, conflict arises when we posit them against each other.[64]

Theory of value and property[edit]

See also: Property

Henry of Ghent articulated the theory that every person has a property interest in their own body.[65] John Locke uses the word property in both broad and narrow senses. In a broad sense, it covers a wide range of human interests and aspirations; more narrowly, it refers to material goods. He argues that property is a natural right and it is derived from labour.[66] In addition, property precedes government and government cannot "dispose of the estates of the subjects arbitrarily." To deny valid property rights according to Locke is to deny human rights. The British philosopher had significant impacts upon the development of the Government of the UK and was central to the fundamental founding philosophy of the United States. Karl Marx later critiqued Locke's theory of property in his Theories of Surplus Value, seeing the beginnings of a theory of surplus value in Locke's works. In Locke's Second Treatise he argued that the right to own private property was unlimited as long as nobody took more than they could use without allowing any of their property to go to waste and that there were enough common resources of comparable quality available for others to create their own property. Locke did believe that some would be more "industrious and rational" than others and would amass more property, but believed this would not cause shortages. Though this system could work before the introduction of money, Marx argued in Theories of Surplus Value that Locke's system would break down and claimed money was a contradiction of the law of nature on which private property was founded.[67]

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