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The 9th Symposium of Confucianism/Buddhism Communication and Philosophy of Culture

The 9th Symposium of Confucianism/ Buddhism Communication and Philosophy of Culture

2006/3/11 B 104 10:40-12:10

Philosophyical Reflections on Human Rights

BUDDHISM AND HUMAN RIGHTS

University of Groningen in Niederlands Professor

Siegfried Van Duffel

Siegfried Van Duffel < BUDDHISM AND HUMAN RIGHTS> 2

BUDDHISM AND HUMAN RIGHTS

Siegfried Van Duffel

Introduction There has been much discussion about the question whether or not human rights can be accommodated within a Buddhist framework. On the one hand, the issue seems simply decidable: Professor Perera has provided a detailed account of Buddhist scriptural underpinnings for every human right listed in the 1948 U.N. charter. On the other hand, it is also obvious that the concept of a right is not obviously present in the Pali canon, and many people feel that this does make a substantive difference. The first aim this paper will be to show that this issue can be handled more productively if it is approached at the level of theories of human rights. I will provide an account of two natural rights theories, which together more or less exhaust the conceptual framework within which thinking about rights has developed. I will claim that Buddhism cannot accommodate either of these theories. The second aim of the paper is to argue that this may be less problematic (for Buddhists) than may seem at first glance. One obvious reason is that Buddhism has been able to cope with the ethical problems that are addressed by the language of human rights, without having recourse to the language of human rights. More important, however, is the fact that the two theories of natural rights also have disadvantages. In both cases, these difficulties are so serious that we are better off without these theories, or so I shall argue. Of course, the language of human rights may be used without relying on theories of natural rights. However, even if the difficulties with these theories may not persuade us to discard the language of human rights altogether, recognizing the relevant difficulties in the underpinning has practical consequences. I shall point to some of these. Before coming to the theme of my presentation, I need to issue two warnings. First, my research focuses on the relation between human rights and culture. I believe that there is a relation between doctrine of human rights and the culture in which those doctrines originated. Second, my stance critical towards doctrines of human rights is a critical one. I believe that it would be better off if we got rid of these doctrines. However, because the issues connected with discussions of human rights often involve grave human suffering, the debate might become emotional and it is easy to be misunderstood. Therefore, let me indicate first that I am not a cultural relativist. I do not think that moral norms or values are only relevant to the culture whose norms or values they are. Torture is wrong, no matter what. Cruel treatment ought to be eradicated no matter whether it is condoned by the people imposing it or not. No sane human being can say that there is nothing wrong with people starving in a world that produces enough food to feed everyone. So the fact that I am critical towards theories of human rights does not mean that I disagree with many or perhaps even most of the substantive positions defended by human rights activists. Nevertheless I believe that there is something fundamentally wrong with theories of human Despite the title of my presentation, I will have very little to say about Buddhism. That is because most of my time will be devoted towards an explication of what I believe are the two major doctrines of human rights. From this presentation and form the critique that I will formulate towards these doctrines, it will be clear not only why there is something wrong with these doctrines but also, I hope, why Buddhists could not possibly endorse either of these doctrines. The reason is that human rights doctrines rely on a notion of self and on a valuation of this self 2

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that goes completely against one of the fundamental insights of Buddhism, namely that this self is not only an illusion but also that attachment to it is the root of much suffering. So contrary to what is sometimes supposed, I do not believe that the fact that human rights doctrines cannot be accommodated within a Buddhist point of view is embarrassing for Buddhists. One obvious reason is that Buddhism has been able to cope with the ethical problems that are addressed by the language of human rights, without having recourse to the doctrines of human rights. But another, perhaps even more important, reason is that these doctrines are very problematical in themselves, or so I will argue. I will suggest that there are two fundamental theories of natural rights. Both these theories developed in medieval Europe, within a Christian theological framework. These theories depend on two different conceptualizations of rights. It will be helpful to start with an overview of these before turning our attention to the theories. Two ways of conceptualizing rights From their early beginnings in the history of European political thought, subjective rights have always been conceptualized in two ways: either as the right of a sovereign, or as the right of someone subjected to a sovereign. To bring these different conceptualizations into clear focus, it is useful to look at one of the most dramatic phases of the early history of the ongoing debate between these two conceptualizationswhat is known now as the poverty debate between the Franciscans and their adversaries. The Franciscans were a mendicant orders, i.e. a movement of monks that lived a life of voluntary poverty. For them, this meant more than merely a restricted use of material goods. Outward poverty was the expression of a more important inward poverty. Associated with inward poverty was a cluster of ideas about humility, lack of self-esteem, modesty, meekness, and obedience. The ultimate form of internal poverty, of having nothing proper, was expressed in the vow of obedience, which Francis interpreted as the renunciation of ones will. It was the property of having a will, according to these friars, that enabled human beings to own property and to have legal rights. By virtue of their will, human beings were considered to be able to exercise dominium, which is sometimes translated as lordship. The Franciscans regarded every right as a form of dominium and for them, to live the live of a pauper before God meant to renounce every form of such lordship. After all, for them, as for any true Christian, God, because He has created the world, is the ultimate dominus of everything that exists. At a certain point the doctrine on which the order relied came under attack, and the Franciscans were challenged to prove that it was possible to licitly use things to which they claimed to have no legal right of using them (since such a right was also considered a form of dominium) and to licitly consume things that they did not own. The Franciscans had maintained that all the things that they used, from the buildings in which they slept and the garments that they wore, to the food that they consumed, never became their property. Nor did they ever acquire a right to their use. For them, this meant that the owner of these things could at any time demand his property and that the Franciscans could not claim that an injustice had been done to them in case he did. In short, the Franciscans did not have any normative power over the things they used; they did not have any right that could be enforced before the court. What they did have was a natural right to use the goods they used. 3

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The Franciscans relied on the traditional view, according to which property had been introduced by human laws, and from this they concluded that before the fall, Adam and Eve had only rights to use the earth, and no right to exclude othersin other words, that they did not have any normative control over the things that were at their disposal. So for the Franciscans, natural rights did not imply any normative control over that to which one had a right. One of the best-known adversaries of the Franciscan cause, towards the end of the debate, was Pope John XXII. At one point in the debate, John relied on some passages of Genesis to claim that our first parents, in the state of innocence, had dominium over the earth, the fish of the sea, the birds of the air, and all living things that move upon the earth. John XXII held that property could not be avoided, because people naturally exercise a kind of sovereignty over a part of their world, and in the words of Richard Tuck, he thought that any intervention by any agent in the outside world was the exercise of a property right. (1979: 29) So for John, property rights were natural, and not the creation of human laws. From this conflict from this conflict there emerged two quite different conceptualizations. These derived from two different answers to the question: What did God give to human beings? The Franciscans thought that God had merely given to people rights to use the earth. The argument of Pope John XXII, however, implied that God had transferred his dominion over the earth to human beings. Today this theological debate is still being continued in analytical jurisprudence, where two theories of rights are being debated. According to the so-called interest theory of rights, one may be said to have a right in case an interest of oneself is being protected by the law. According to the will theory of rights, however, ones interest being protected by the law is neither necessary nor sufficient to having a right. What is necessary and sufficient is that one is capable of controlling a duty of someone else. In other words: the will theory construes a right as an area where the holder of the right has dominion whereas the interest theory doesnt. These two conceptualizations of rights functioned in two theories of natural rights. Let is have a look at both of them. Natural property rights A first point to make regarding the theory of natural dominion or natural property rights is that, despite the fact that it was first formulated in a context where religious worldview was taken for granted, the theory is strictly speaking incompatible with a religious framework. If God would have transferred some of His dominium to our first parents; this means that they thereby would have become truly sovereign beings, with a power over the earth similar to that of God (before the transfer). Again, this implies, not merely that people have sovereign power to manage their property in any way they wish, but also that they are, qua sovereign, Gods equal. Since the claim that God has transferred part of His dominium to human beings can only be made in a religious framework, and since the implication that human beings have a normative power equal to Gods power seems to be unacceptable in such a framework, I believe that the thesis is really an incoherent one. Pope John still referred to biblical authority to make his point, but already at that time other writers were paving the way for a naturalistic foundation of the natural right to ownership. Aquinas held that the dominion that man has over his own will makes him capable of dominion over other things. In the sixteenth century debate over the rights of the American Indians, this strand of thought became the basis of an argument for natural property rights. Vitoria argued 4

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that even a sinner had dominium, since he does not lose his dominion over his acts and body. For Vitoria, the fact that Indians had dominion over their acts and their bodies, just as the Spaniards did, was the basis for claiming that they did have natural rights, that they owned the soil on which they lived, and had a right to choose their own rulers, etc. Another Dominican, John of Paris, said that lay property is acquired by individual people through their own skill, labour and diligence. As such, these individuals, have right and power and valid lordship (ius et potestatem et verum dominium) over their property. And this strand of thought would be developed by John Locke into his famous labour theory of property. The theory that human beings are sovereign beings really secularizes an essentially theological concept. Because of this, the theory runs into all kinds of irresolvable problems. Consider first the question how a human sovereign acquires a domain (that over which he is a sovereign). Locke tells us that each person has a property in his person, and that our labour is properly ours. By mixing our labour with something that previously didnt belong to us, we can appropriate the thing (II, 27). Two difficulties with this argument are worth noting. One is that it merely assumes self-ownership. The other is that the mixing-argument gives rise to a whole lot of uncertainties. If I build a fence around a piece of land, have I become owner of the enclosed land, or only of the fence and the earth immediately underneath it? Despite these difficulties, many people feel that the labour theory captures, albeit in an imperfect manner, a deep-seated intuition of ours. The important question is how this intuition is best depicted. I have argued elsewhere that Western intuitions about natural property rights are structured by the idea of creation. Like God, who is dominus of the world by virtue of having created it, human beings acquire dominium (or property) by virtue of creating things for themselves. Of course, unlike God, human beings never create things ex nihilo (out of nothing). To accommodate this, a theory that grounds sovereignty of human beings in their ability to create things will have to loosen the criteria for what counts as having created something. Contemporary natural rights theories trying to improve upon Lockes insight have tended to see purposeful behaviour as the source of natural rights. Unlike animals, adult human beings can act purposefully (since they have freewill), and because of that they are able to exercise normative control. Such purposeful behaviour is not limited to instances that we typically call labour. Consider someone going to the cinema and taking a seat. In many places, if such a person runs off his seat to get a drink, but leaves his coat, others will interpret this as a sign that the seat has been taken. Similarly, if an explorer discovers new land, he may plant a flag on it, and as such acquire normative control (dominion) over it. Any account of creation that is intended to cover these intuitions about natural sovereignty will have to encompass things as remotely removed from ex nihilo creation as the taking possession of a piece of land and even the acquisition of property in oneself. Indeed, it has been argued by Frank Van Dun, a Belgian libertarian, that it is precisely our purposeful behaviour that makes us owners of our own bodies and minds: Van Dun writes that things are created as means by human beings:
Means are not just given to people they have to be discovered, produced, invented. They are creations of the human mind. Nothing is a means in and from itself, not even the human body. Something becomes a means only when somebody transforms it from a thing into a means, i.e. when somebody starts to use it purposively, to give it a certain purpose and includes it in his objectives. The one who first uses a thing creates it as a meanshe is the author or auctor of the thing. The thing is through him, and in that sense it is of him: as a means it arises out of him, it originates in him. (Van Dun 1983: 37-8; my translation)

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The position implied in this passage is that creation is the prototypical form of the wider range of purposeful behaviour. God created the world with a specific purpose in mind, and it is precisely the purposefulness of God (His will) which generates normative consequences for human beings. Similarly, human beings act purposeful and this, according to the proponents of this type of natural rights theories, makes them into sovereign beings. But the fact that purposeful action in general is considered sufficient ground for the establishment of normative power, the theory cannot warrant that such normative power will in fact be supreme. To see this, consider first the particular case of children. Susan Okin wrote that according to Nozicks entitlement theory, children are the property of those who make them. (1989: 85) According to my analysis, this is not necessarily true, because the birth of children need not always be the intended result of purposeful behaviour. But the point remains valid for those cases where parents purposively make children. In fact, if purposeful behaviour is a ground for ownership of something, we may conclude that, since children are not yet purposeful agents, anyone who develops a purpose that includes some child may become sovereign over it (not just the parents). From this it follows that if there can be only one author of a thing, as libertarians would maintain, the child will never become sovereign over its own body. So when the child starts to use its own body purposively, the normative power implied in this behaviour cannot be supreme, since there is already someone else who holds supreme power over it. We may go further and ask why only the first person to use a thing purposively may become sovereign over it. Our conception of sovereignty tells us that there can be only one sovereign over a thing, and our intuition regarding creation tells us that the act of creation brings some thing into existence. Combining these two assumptions, we arrive at the conclusion that the person who was the first to create some thing is the sovereign. But this inference fails to take into account the fact that human beings never create something ex nihilo. Consequently it is the wider category of purposeful behaviour instead of the strict notion of creation that is supposed to ground their sovereignty. The problem with this notion is that purposeful behaviour of different agents can overlap. So if making something part of ones purposes counts as having created something, there is really no ground for the claim that one person cannot create something that has already been created by another. So different agents can create the same object, which would thus become part of the domains of different sovereigns. However, it is conceptually impossible for something to be part of the domains of more than one sovereign, for no two agents can exercise supreme normative power over the same thing. Unless these agents necessarily have the same will (in which case they would cease to be separate agents), they always might issue conflicting norms. In such a case, the widened conception of creation cannot justify the normative superiority of one agents will over another, since the respective agents are each others equals (since both of them equally created the relevant domain). Given that two conflicting norms cannot be valid in the same domain, we must conclude that neither of these agents can be a sovereign. If human beings are equal in their capacity as purposive agents, the only way a human being could be a sovereign would be for him to be the only human being in the universe. From rights to subsistence to welfare rights Parallel to the theory of natural property rights, there existed a theory of rights to basic necessities, or rights to subsistence. It is important to underline here that the distinction between these two traditions of natural rights is not one of different emphasis, but lies in a very 6

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fundamental divergence in the basis of the theories involved. This divergence can be seen on two planes: on the level of the basic concept of a right that the theory invokes, and on the level of the reasons for granting people rights and, consequently, the implications of their having certain rights. The theory of natural property rights invokes a concept of a right as normative control. To have a right, according to this theory, is to be a sovereign. The reason why people are thought to have rights is either that God has transferred part of his dominium to human beings (in the religious version), or that it is in the nature of human beings to exercise normative control. The theory of rights to subsistence uses a concept of right that does not imply any dominion on the side of the holder of the right. Consequently the reason why someone is said to have a right is not to be found in his normative control. Instead this theory construes rights as creating enabling conditions for people. To make this a bit more concrete, consider first the original version of the theory of rights to subsistence. Already in the twelfth century, theologians started arguing that someone who found himself in a situation of extreme necessity (i.e. a situation where one is on the fringe of dying because of lack of food or clothes, or some other good) and who could only survive by stealing something, may legitimately take those things without which he could not survive from the superfluities of a wealthy man, even without the latters consent. One of the explanations that was given for this position was that in as far as they are necessary for survival, to take superfluities from another man would only be to take what is ones due as a matter of justice. In effect the argument thus implied that every person who has more than he strictly needs to survive has a duty to let other persons share in those goods, if this is required for the survival of these other people. For the present purpose, it is important to uncover the basic presuppositions that guided this theory. One of the most fundamental intuitions is a reliance on Gods goodness: the believer is assured that God would not create a human being only to let him perish from starvation or lack of basic necessities. Because of this, God has given the world with plenty of resources for human beings to provide in those basic necessities. It is essential that God did not mean merely create the world to provide for the sustenance of the human race in general, but that he provided ample for each individual human being. After all, it is said that God has written the name of each of his children in the palm of his hand. That is, each human being matters for God. Why is this? Because God has a plan with the world, He created the world with a specific purpose, and each human being has a role to fulfil in Gods plan. Since for Christians (and for members of any of the three Semitic religions in general) Gods intentions are the ultimate source of normativity in the world, the fact that God intended each human being to live is a source of duties for other human beings. Given the framework that I have just sketched, it is easy to see how these obligations with respect to the subsistence of each human can be grounded. If God has provided enough resources for each human being to survive (this can be assumed given Gods goodness) and it so happens that some human being lacks some or the other basic necessity, then it must be the case that others have taken more than their share. We can presume that at least some of the theologians defended rights to subsistence thought that anyone who had more than strictly necessary would be unjust if he would not provide for the needs of his starving fellow human being. The injustice done in such a case was

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not merely a breach of duty towards ones fellow human being, but a violation of ones duty not to intervene in the implementing of Gods plan with the world. Another assumption that is important is that God can be supposed to have given each individual the relevant capacities to perform their role in His plan with the world. This assumption puts an obvious limit to the duties of people so that it is only in cases of extreme necessity that the rich can be accused of injustice should they not provide for the urgent needs of their fellow human beings. Now consider how this theory gets secularized. Instead of Gods plan with the world, and each human beings role in this plan, reference is now made to each human beings plan with his or her own life. Most contemporary theories of human rights make reference to the fact that human beings are purposive agents, that they are able (or perhaps even necessitated) to generate their own purposes. So the fact that human beings have goals in their life (goals that they set for themselves) is supposed to ground the duties of other people towards each and every human being. Which duties do we have to other human beings? Similarly to their medieval ancestors, contemporary theories will often limit the duties of other people to the provision of just these necessities the presence of which will allow them to function as purposive agents. But in the secularized version of the theory this seems counterintuitive. To see why, consider why it could be easily assumed in the religious theory of rights to subsistence that people had the necessary abilities to fulfil their role in Gods plan with the world. That is because God would have given them the necessary abilities. But the secularized version of the theory cannot assume that people will in fact have the required abilities to execute their life-plan. And this puts them in a dilemma: either they persist that the only relevant criterion for the existence of human rights is the ability to generate purposes, or they allow that the success in the pursuit of these purposes is normative. Both options are unsatisfactory. Limiting the duties of human beings to providing the means necessary for human beings to be a purposive agent leaves open the possibility that someone may be helped just enough to be able to generate purposes without any prospect of being able to accomplish any of them. This leaves one wondering what the value of a naked ability to generate purposes could possibly be. The other option is certainly no more satisfactory. If we accept the fact that the purposes generated by human beings ground duties of other people to assist in the realization of those purposes, we leave the theory with no conceptual resource to distinguish basic human rights from other desiderata. Any plan that a human being may have with his or her life, however unrealistic or demanding towards other human beings, becomes a ground for duties on other people. This is surely not a theory that any reasonable being can accept. Yet, I believe it is implied in the standard account of welfare rights. Buddhism and human rights Now that we have these theories into clear focus, it should be easy to see that both of them cannot possibly be accommodated within the Buddhist tradition. Take the theory of strong property rights first. The shortest route towards establishing that this theory is incompatible with Buddhist doctrine would be to point out that if one takes the doctrine of no-self seriously, one simply cannot hold, without blatant inconsistency, that a human being could have natural property. After all, the self that is supposed to acquire this property is simply not present according to Buddhists. We can also see why it does not help to point to the many exhortations of the Buddha himself (and many other Buddhists) not to steal. For it is obvious that there may 8

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be many good reasons not to steal: One is, for example, that stealing is instigated by greed and probably gives additional fuel to greed. Another is that people are attached to their property and causing people to suffer (because of their attachment, will lead to ones own harm, etc One can probably think of a few more good reasons why it would be better if people would not steal, but the fact that stealing is an infringement of a natural property right is certainly not one of them. Take now the theory of rights to subsistence. Of course, all Buddhists would prefer a world where every human being has access to the basic goods necessary for his or her maintenance to a world where this is not the case. But again it must be obvious that the reason for wanting this is quite different from the natural rights theory that we have discussed. One possible reason would be that such a world would probably contain less suffering (this is debatable, of course, but for the sake of argument we may grant it). Another good reason for preferring every human being to have access to basic necessities might be that this would at least enable them to pursue relief from suffering. But none of this requires that the intentions of a human being (or what is construed as ones intentions) are in any way a ground for duties of other human beings. On the contrary, goal-directed behaviour is arguably one of the main roots of suffering, since it seems to be a strong vehicle for the development of attachment. So instead of seeing peoples intentions as thing that ought to be realized (and therefore as a ground for a claim to what is necessary to attain ones goal) a more proper goal for Buddhists is the discouragement of the pursuit of (misconceived) goals. We may conclude that there is not just an incongruence between the teachings of the Buddha and doctrines of human rights but that they are in important respects each others opposites. Siegfried Van Duffel