In Search of a Solid Foundation for Universally Binding Legal Human Rights
The rational reconstruction of political orders
General assumptions about the Nature of human "beings"
The first assumption that we will make about what makes a human being a human being is that human beings are endowed with Reason. It is a peculiarity of Reason that it can never be made to be plural : the word "Reasons" is taken to be non-existent. This shows the unity of Reason. Consequently, an individual is said to be rational when that individual has the ability to think consistently about some subject-matter. The first aspect of the definition is an individuals ability to think. This means that Reason is not present in the empirical world per se but only in the world of thought. This also means that individuals that are rational partake of that world of thought. The second aspect of the definition is the consistency that has to be present in thought in order for there to be rationality. The third aspect of the definition is that rationality is expressed when one considers a definite subject-matter, or object of thought (which can be various not-withstanding the unity of the capacity of Reason). The subject-matters that one can consider can be of two general kinds : speculative matters or practical matters. The former are matters concerning the "what is?" question while the latter are matters concerning the "what should one do?" question.The second assumption about human beings is that they are embodied. We will take it for granted, as a matter of an inescapable phenomenal evidence, that human beings have bodies. This, in turn, implies that human beings have physical aspects, biological aspects, sensations, perceptions, affects, needs, wants,
The third assumption about human beings that we will make here is that they are beings with finite powers of action and of knowing. Consequently, human beings powers over their environment are taken to be limited.
Deduction of the formation of political communities
Of the possibility not to enter in any relationships with any other human beings
In our day and age, the claim that an individual can live outside of a society seems very bold. However, the claim set out above (in the subtitle of this section) does not assert that there are such individuals but only that there is a de facto possibility for an individual to live in such an asocial state of affairs. This possibility is opposed to a de jure impossibility of an individual living outside of civil society. Such an impossibility arises from the fact that, if two individuals enter into a conflict, then there must be, at least in principle, a way for these two persons to resolve their conflict without placing the other person "before the accomplished facts".
Consequently, if the two persons are unable to negotiate an accord by themselves, then they will have to seek the counsel of another person living in civil society who will provide them with a mean to settle their differences.
Of why human beings enter social relationships
We assumed that human beings are both rational, embodied and having limited powers over their environment. From this, it follows that an individual living in an asocial state of affairs would be living in a precarious state of affairs. In fact, there is no reason to believe that such an individual would be able to satisfy his needs and wants in order to maintain himself in existence for a relatively long period of time. Why is that so? Considering the limited power to know of that individual and his limited powers of action, then the influence that he can have over the environment in order to harness from it the matter that he needs in order to fulfill his biological needs is such that he will always see some of his needs and wants unfulfilled. We can contrast the situation of an individual living in an asocial state of affairs with that an individual living in a social state of affairs. Such an individual can ask himself this question : " Even though I can do as if I were in an asocial state of affairs and harness by myself the resources that I need in order to satisfy my needs and wants, would it not be more advantageous for me to associate myself with other beings that resemble me so that we may unite our efforts in the harnessing the resources we need in order to fulfill our needs and wants assuming that if we unite our powers in a properly coordinated fashion we will be able to see our individual powers increased?" In other words, is that individual more likely to see more of his needs and wants fulfilled when he lives in an asocial state of affairs (or any of its practical equivalent) or when he lives in a social state of affairs where individuals properly coordinate their efforts in order to collectively harness the matter from the environment that they need in order to fulfill their needs and wants? The individual is more likely to see more of his needs and wants fulfilled when he enters a coordinated social state of affairs. The reason for this lies in an opportunity cost/benefit analysis such as it is described by the economic law of comparative advantages given that there exists needs and wants that no individual can forgo according to the premise of limited power and of embodiment.
The creation of cooperative systems
From what has been said above, we can readily see that it is advantageous for the material welfare of individuals to enter in systems of coordinated human activities. What are such systems? They are commonly called organizations. An organization is a purposeful and coordinated set of human activities or interactions. This implies that individuals do coordinate some of their actions in such a way as to create a final situation that corresponds to an organizational, consequently non-individual, purpose or goal. The benefits of the accomplishment of the organizational purpose cannot be consumed by the organization per se, but will have to be distributed among the contributors of the organization.
Important peculiarities of cooperative systems
Cooperative systems are either effective or ineffective ; they either attain their goal or they do not. But, we have already mentioned that the goals and purposes of cooperative systems are organizational and non-individual. It follows from the preceding that the effectiveness of cooperative system is an organizational and non-individual datum ; although, it should be mentioned that if an organization is always ineffective, it ceases to exist and it loses the contributions of the individuals partaking in the cooperative system.
Cooperative system can also be said to be efficient or inefficient. While effectiveness was an organizational variable, efficiency is an appraisal of a cooperative system that is a function of individuals judgments about the organization. A judgment of efficiency is an individuals judgment about whether or not the individuals motives for partaking in the cooperative system are satisfied. As such, efficiency is related to the "economy of incentives". The economy of incentives are "the net effects of income and outgo of things resulting from production of objective incentives and the exercise of persuasion" or "the net satisfactions which induce a man to contribute his efforts to an organization". As such, incentives are both results of the cooperation and the reason for the cooperation. Consequently, if an individual considers an organization to be inefficient, he will forgo his contributions to the cooperative systems.
The fiction of authority (but useful fiction) for all organizations as a result of the nature of efficiency
In all organizations, there are communications. But, communications that directly relate to the organizational purpose have to be differentiated from communications that have non-organizational purpose. Consequently, there is a requirement for a system of authentication of communications emanating from certain individuals within the cooperative system. The authentication mark has to be an objective mark recognizable minimally by all the members of the organization. A communication is going to be authenticated through the use of a symbol. Symbols are "various signs and abbreviations used (...) to indicate entities, relations, or operations." This is the first role of authority ; it is an objective role of identification of individuals who can emit authoritative communications.
Authority is also a subjective datum because of what we have said about the nature of efficiency (as being an individuals judgment about an organization) and about the economy of incentives (which allow organizations to secure individuals cooperation). This subjective datum can be stated in the following way : authority is non-existent without the contributors of the cooperative system assenting to the validity of the communications. In that sense, the predicate of "authoritative" will not lie in the communication per se (but rather in the individuals "mind" or judgment) and will be perceived by subjects as binding independently of their own will.
Because of what we have just said of authority, we can readily see that such an attribute of authority is very volatile. Because of that volatility, we can attribute to authority a lesser ontological status and call it a fiction that is voluntarily entertained by a community of human beings in a cooperative system. Because of the generality of the proof set out above, we can say that authority is fictional in all organizations.
Of why universal legal human rights cannot properly rest on a legal positivist conception of law
In order to have a proper foundation for rights, one would have to support rights on ontologically solid premises. We have just seen that authority can be considered to be a fiction because of its volatility. Now, legal positivists would have us say that law is law because law is a decree made through the use of authority. If authority is a fiction, so is law. Consequently, universal legal human rights cannot properly rest on a legal positivist conception of law.
The nature of political systems
Political systems are cooperative systems of human actions. What is the specific purpose of political system? It will be taken for granted here that what makes an organization a political one is that the purpose of the organization is the mutual commonwealth of all its contributors. The nature of the commonwealth involved in political organizations will have to be explicitated more in the remainder of the essay ; but, for now, we can use the word in a usual, "common sensical", way. However, the deduction that all political organizations are organizations that seek the commonwealth of all its contributors is a point that will be further researched, but we can provide a simple argument for it now : there is no reason to call a system of exploitation of human beings, or of slavery, a political system even though there is reason for it to be called an economic system liable to all the constraints of cooperative systems.
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