What are our rights as human beings? Merriam-Webster defines human rights as “rights (as freedom from unlawful imprisonment, torture, and execution) regarded as belonging fundamentally to all persons.” This definition seems pretty straightforward, as it would for most Canadians or anyone who was born in a country whose institutions were derived from the principles founded in Western political thought. However, for the purpose of this essay, I am going to take into account a simpler definition: human rights are the rights that all people have by virtue of simply being human. Moreover, human rights are derived from the inherent dignity of the human person. Furthermore, they have been defined internationally, nationally and locally by various law-making bodies.

John Rawls in his essay, Justice as Fairness, outlines two different conceptions of Justice. It is with these two conceptions from Rawls’ essay that I will address the institution that constructed the CCRF and the institution which constructed the UDHR. Therefore, by employing his conceptions of justice to the aforementioned articles, I will contrast the similarities and differences of each, in their account of human rights. Furthermore, such an application will reveal the flaws in the conception of justice, in its forming of an institution, which Rawls in Justice as Fairness alludes, that justice is to be better understood as a “fundamental moral [R1] concept,” fairness.[1]

Before this method is applied, it is necessary to have a distinct understanding of how Rawls interpreted justice and the principles to which it is thought to uphold. “These principles express justice as a complex of three ideas: liberty, equality, and reward for contributions to the common advantage.”[2] It is with understanding justice in this manner that Rawls concludes that there are two different conceptions of justice that exist in trying to adhere to these principles. One is a moral concept of justice in which individuals agree that their behaviour in a practice is to conform to the expectations of what they would expect of an opposing individual in a similar practice. The other conception is a social construction of justice, where justice is thought to be best upheld through the laws of an institution, constructed by an order of higher office, in an effort that was designed to yield the greatest benefit to all the individuals within its practice, regardless of their expectations of other individuals.[3] Since the establishment of the United Nations and the ratification of its charter on 24October 1945, the definition of human rights has been a key focal point in an institution of international law. This definition, for the purpose of the United Nations, has been and still is based on the principles of dignity, justice, respect and equality. Furthermore, these values are clearly reflected in the United Nation’s publication of The Universal Declaration of Human Rights (UDHR) in its preamble which states in the first line: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”[4] However, the Canadian Charter of Rights and Freedoms (CCRF), the authoritative document in Canada defining the rights of all human beings who reside in Canada focuses on national law and states in its first line: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.”[5]

These differences suggest two different notions of how institutions should be constructed. The question before the notion was how an institution can justly and fairly ensure equality and freedom, through its construction, to benefit all human beings in society?

In the first line of the UDHR, quoted above, refers to defining or “recognizing” human rights as the “foundation” necessary to ensure “justice and peace in the world.” [6] Therefore it follows that the UDHR believes an institution must find its foundations in principles from the “inherent dignity” of the “human family”. Moving on, the link has now been drawn between Rawls’ first conception of justice and the conception of justice behind the UDHR. The CCRF then represents Rawls’ second conception of justice and its idea that the construction of institutions will provide equality and freedom through the principles of justice which are defined by “law” determined by “supremacy”.

The application of these conceptualizations of justice, outlined by Rawls, shows the similarities between the UDHR and CCRF, that both are aimed to define human rights in such a way that the principles of liberty, equality, and reward are to be manifested to human beings that are part of an institution which derives its fundamental practice from the definition of human rights outlined in the documents declarations. For example an article in the CCRF reads:

Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association. [7]

It is to be noted that this article in the CCRF defines human rights in a way that expresses the notion of equality (“Everyone”) and the concept of “freedom”. Similarly, article 18 in the UDHR reads:

“Everyone have the right to freedom of thought, conscience and religion, this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.[8]

Again, note the same use of words in both articles as they are practically verbatim. Inasmuch, one can conclude from this example that both the CCRF and UDHR are similar that they both desire a society where human beings live among one another as equal and free individuals.

However, the application of the Rawlsian conceptions of justice towards the UDHR and CCRF, contrast one another in how each of them come to understand justice and how the principles behind it, might achieve equality and liberty for society, This can be seen in each of the documents first line, as I mentioned above. The CCRF and its opening line: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law,” [9]conforms to the second conceptualization of Rawlsian justice that is constructed from a higher social order, believed to provide the greatest utility to the participants in its practice, separate from their relation of each other. Wherein, the first line of the preamble in the UDHR alludes to the first conception of Rawlsian justice which derives itself from the mutual acknowledgements of its participants: that justice is best practiced as adhering to the fundamental morals of all individuals in their relationship to one another in shared social activity.

Evidence of the different approaches to justice is also made apparent in each document The CCRF “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”[10] This, as it reads, does place a limitation on human rights but does so for the benefit of society as a whole. Therefore, this limitation of rights reveals the principles of justice behind the CCRF, the idea that the benefit of society is greater than the benefit of the individual. However, Article 30 of the UDHR states: “Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.”[11] Contrarily, this article in the UDHR reveals the principle behind justice that assumes the rights of the individual are greater than the benefit of a whole society.

Rawls, in Justice as Fairness, suggests that the concept of justice as fairness, similar to how the principles of justice are constructed from the UDHR, provides in its practice the possibility of “true community between persons in their common practices; otherwise their relations will appear to them as founded to some extent on force and violence.”[12] Further claiming “fairness applies more particularly to practices in which there is no choice and one must play, the element of necessity does not alter the basic conception of the possibility to mutual acceptance.”[13] Moreover, that justice is more likely to benefit all individuals who engage in a practice where they acknowledge in their relations with each other that “equality as an initial principle”.[14] This practice and belief of common equality among all individuals, will remove the need of large institutions and laws suggested by the social conception of justice. In that people will not find reason to argue against one another when it is known that such an argument will not result in a benefit to their own person. Justice therefore, truly serves the principles in which it was derived from and most effectively does so when individuals come to the understanding of all human beings in their practice as having no authority or benefit greater than what can be mutually accepted by all individuals, and is balanced by each individuals own interest, separate from the relation of others, to benefit themselves, which ensures that no other will have advantage greater than another because, no one would be willing to make a sacrifice that resulted in their own disadvantage.[15] Additionally, Rawls attacks the utilitarian conception of justice and uses a great example in proving his point.

But an interpretation of the basis of the principles of justice the utilitarian conception is mistaken. It can lead one to argue against slavery on the grounds that the advantages of the slaveholder and slave, would forbid counting the advantages of the slaveholder at all. These offices could not be founded on principles which mutually acknowledged, so the question whether the slave holder’s gains are great enough to counter-balance the losses to the slave and society cannot arise in the first place.[16]

Here Rawls gives an indication that the definition of human rights defined in the UDHR is superior in adhering to the principles which justice is based, than that of the CCRF.

However, I offer an argument to refute Rawls’ allusion that justice as a moral concept is the most effective conception for an institution to establish absolute equality among all participants. On an international level, the UDHR does seem establish a concept of human rights that recognizes the individual but not only virtue of their citizenship but also by simply the virtue of being human. Although the power for the most part on an international level, is held by the state, globally the rights of the human beings are nowhere near a level of equality as set in the UDHR, further the existence of a global society defined in these terms is still under a constant threat of violence, war, and military intervention.[17]). This being the case, does not the utilitarian conception of justice, at least in a global since, appear to be the more effective way to provide for equal liberty and freedoms to all human beings? In reality, the establishment of the United Nations in 1945 as a institution has already made considerable advancement as practice utilizing its power to posit and uphold human rights globally. Strong international institutions, such as the United Nations are needed for humanity to continue the progression towards liberty and equality for all. Furthermore, if humans beings were capable of abiding by a system of justice based on their “inherent morals” and goodwill then Rawls never would have formed two conceptions of justice. One has to believe that in the history of human existence, man first existed in communities absent of social institutions. Here, human beings must have experimented with justice as a “moral concept”, as Rawls’ defines it. Rawls even argues that this moral concept was the “first” fundamental idea behind justice, and at some point had to be the idea behind what he calls 2nd perception of justice. And I agree. For the amount of time that human beings have existed on this planet, though I believe our species has vastly improved, we have yet to achieve the utopian society we desire. Only through the construction of social institutions that construct justice on the second conception, have we been able to get to this point. Otherwise, had the first conception of justice worked, the need for the second would have never raised. Therefore, the concept of justice as an acknowledgement of mutually fundamental morals between individuals is and has throughout history been ineffective, at least globally, in establishing a practice that provides equality and liberty for human beings.

Although, I agree that true rights and freedoms of human being will be achieved only when we begin to respect the each other through the moral notion of a better human existence for all. I believe that man is too selfish in our day and age for any form of equality to exist without the power of institutions ensuring what is best for society as a whole. Therefore, Rawls’ idea of justice as a moral principle, though feasible in a perfect world, is a an already failed attempt at constructing social institutions, because it is impossible to assume that individuals will adhere to their own inherent dignity for the benefit of others, when it already hasn’t.

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Bibliography

Rawls, John. “Justice as Fairness.” Journal of Philosophy 54, no. 22 (October 24, 1957), http://www.jstor.org/stable/2021929.

Canadian Charter of Rights and Freedoms. Part I of the Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c.11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].

Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).