Re: HR defn

Date: Tue, 03 Oct 1995 20:22:34 -0400
From: "Steven D. Jamar" [email protected]
Subject: Re: HR defn

I would like to request a definition of "human rights" so that we all are on the same wavelength. I found when I lived in China, for example, that this idea differed from that used in the US. People tend to talk about it as though we all "know" what human rights are. As an example, where I lived in China, the right to personal safety was considered an essential human right and here in the US we don't talk about that. Thank you!

Yes we do. It is just that we have viewed other rights as ascendant - i.e., those individual rights against the govt - like criminal procedure and due process and such. Indeed, the fourth amendment to the U.S. Constitution (regarding search and seizure) is intended to guarantee our personal safety - but the government is threat, not thugs - in our scheme of things.

As far as a defn goes - one can look to the Int'l Bill of Rights for a cateloguing or one can try a formal defn such as:

A human right is any claim, interest, demand, or need which is cognizable at law and which proceeds from moral precepts necessary for human dignity.

But I am not certain such a formal definition meets your need. And if we discuss definitions too much we won't get around to conceptual concerns relating to HR and Buddhism.
Steven D. Jamar
Assoc. Prof. of Law
Howard University School of Law
Washington, D.C.

Date: Wed, 04 Oct 1995 08:55:47 -0400
From: "Steven D. Jamar" [email protected]
Subject: Re: HR defn

Kimberley C Falk wrote about several HR concerns including cultural relativism and the tension between individual rights and what she labeled "social rights."

1. The Int'l Bill of Rights includes the Universal Declaration of HR (which includes social rights), the Convention on Civil and Political Rights (which reads like an updated version of the U.S. Bill of Rights), the Optional Protocol to the C&P Convention (which allows individuals to bring claims in international fora), and the Convention on Economic, Social and Cultural Rights (which includes the social rights of work, community, health, etc.).

2. The ESC Convention rights are human rights just as much as the C&P Rights.

3. The term "social rights" as used by Kimberley may mean something different from how the term is used in HR law. Which confounds discussion and so we should get a firmer understanding of her meaning of it.

4. The tension between the individual and the group goes back to the creation of the UN. The Marxist states wanted the ESC rights to be primary, and generally treated them as such; the capitalist states wanted the C&P rights to be primary and generally treated and treat them as such (the US finally ratified the C&P Convention a couple of years ago -but the ESC Convention is still not ratified).

5. The use of the term "social rights" is often used as a dodge to avoid recognizing individual rights such as speech, assembly (not a social right??), and religion as well as due process rights. There are no unreconcilable rights - they may at times conflict, in which case the must be reconciled and a middle way found. Happens all the time in the US with the free exercise and establishment sides of freedom of religion.

6. Merely saying that rights are thus and so does not make them thus and so whether said by the U.S. govt or the Chinese govt or apologists for them. The international standards adopted by 126 countries or so - including many, many "eastern" countries and "third world" countries since decolonization, are the standards.

7. Cultural relativism has its proper play around the edges. A country can legitimately limit speech more than the U.S. does, but at some point one has violated the right of expression. One can ban human sacrifices, but probably not symbolic (or actual, according to some believers) eating of the body Christ.

8. Human rights extend only to humans. But by including a right to a clean environment, one can stretch them to include protection of spotted owls and such - though it is really a wishful-thinking kind of stretch, not a legal one in the realm of HR.

Steve Jamar
Howard Law

Date: Wed, 04 Oct 1995 16:39:03 -0400
From: "Kimberley C Falk" [email protected]
Subject: Re: HR defn

Dear Mr. Jamar and All,

I would first like to clarify my request for a definition of rights. It sounds like Mr. Jamar is working from the context of law and rights which I personally and from my field of anthropology find limiting. My talking about "social rights" was an effort to determine at what level we are discussing rights (individual/ small unit such as the family / or larger socially confined convention as set into law or other government / social stipulation) which is quite difficult to determine talking to all of you via computerized abbreviated messages. I want to know, is this conference defining rights in terms of human individuals only (which if so, as a Buddhist myself I find problematic since we are called upon to extend kindness/etc. to all sentient beings. Therefore consideration of human rights only seems to me somehow anti-Buddhist, but for the purposes of a conference limited by time I am willing to accept if clarified as a recognition that ethically as Buddhists we must concern ourselves with rights beyond people only).

Mr. Jamar, it was not I who addressed the Chinese government's use of cultural relativism here. That was someone else, although I mentioned that I have done work there. I did however make the claim that social-cultural concepts of rights and at what levels they are applied is based in specific cultural and social contexts in which they exist and these vary cross-culturally. For that matter, Buddhism as a belief system and practice also differ cross-culturally. That is not to say we cannot find universals, just that I would like to see further elaboration from conference participants on what their thinking is about rights so that I can grasp a sense of common and differing ground.

One of my problems with using the concept of human rights as laid out in the laws of primarily Christian first world countries is that underlying such laws is the assumption of Christian faith and I would ask if we can't move beyond that when trying to evaluate rights and Buddhism. While it is true that many third world nations agree with such documents and rights, it is equally true that the political and economic power of the first world in the creation of such documents exceeds theirs. I would therefore argue that one must be cautious when using such documents to form a universal standard as voices of those less powerful tend to be silenced or muffled when aggregated. If for the purpose of this conference we are to use those standards to examine the concept of Buddhism and ethics, so be it. I would simply ask that people make that clear.

That some of you are in fact elaborating further on your ideas about rights is not in contest and I appreciate all of your comments very much. Also I want to state outright that in reading this message I would hope that you can understand this is not in any way an attack on anyone, merely my views which if we were in person and talking face to face you could see and hear.

Mr. Jamar, I would respectfully ask you what is it about the conventions of law that are interesting to you in terms of rights? Do you feel that they are in some way better representative of a universal sense of ethics than looking at the Dharma? Do you see them as a measure of social consensus about rights? I very much look forward to hearing more about why this standard attracts you? Please write again! Thank you all very much. Respectfully waiting, Kim

Date: Wed, 04 Oct 1995 22:29:04 -0400
From: "Steven D. Jamar" [email protected]
Subject: Re: HR defn

Mr. Jamar, I would respectfully ask you what is it about the conventions of law that are interesting to you in terms of rights?

I think that law, as limited as it is, can help improve the lot of people and I think the Int'l HR standards represent a big step in the effort to get a world ordered more by law than by fiat. BTW, don't you find them interesting?

Do you feel that they are in some way better representative of a universal sense of ethics than looking at the Dharma?

Law and human rights viewed within the context of law certainly do not come close to being an ethical system. But I can't help but note the trend of scoundrels in politics to claim to have done nothing wrong simply because they did nothing illegal. The law never has claimed to fill the field of ethics or morality - and the nature of law is such that it could not.

As a way of looking at reality or life, law is inadequate. But as a step toward coming together, HR's seem a good first step. And we have lot of work to do to even make that step. I'm not sure this meets your inquiry properly, but it is late and I've not much time to really do it justice.

Do you see them as a measure of social consensus about rights?

Yes - or at least hopefully they will be.

It sounds like Mr. Jamar is working from the context of law and rights which I personally and from my field of anthropology find limiting.

Yes, I am working from the context of law and rights. And yes, law is limited - but I'm not sure I agree with it being limiting - unless one gets blinded by it.

So a question in return - what are anthropological rights as distinct from legal ones?

Does the duty to extend kindness to all sentient things mean we are not to distinguish between humans and others? If the point is that a human rights focus is at best incomplete - no thinking person of any faith with whom I have discussed the point would disagree. It seems to me a question to be concerned with is not whether human rights is coestensive with Buddhist morality and philosophy, but whether human rights are sufficiently consistent with Buddhism so as to not be foreign to it.

The question I find most interesting for this conference is to what extent the whole idea and approach of HR and rule of law are compatible with Buddhism both as practiced and philosophically.

I would be particularly interested in your insights (as an anthropologist) regarding Buddhism as it is in, to use Geertz's felicitous phrase, in sheer actuality, as compared to the Buddhism of the monks and philosophers.

Steve Jamar
Howard Law