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Changing rights and wrongs

The transnational construction of indigenous and human rights among Vietnam's Central Highlanders

Oscar Salemink

In the context of the conflict-ridden relationship with the Vietnamese state and the growing transnational interference by their vociferous diaspora, this paper analyzes particular shifts in the framing of their rights. A notion of collective group rights that are by definition particularistic and exclusive has given way to individual rights (especially religious freedom) that are universal and inclusive. Simultaneously, a localized and communal emphasis has changed to a transnational one oriented toward international fora. Local interests and aspirations thus come to be framed as universal human rights that pertain to individuals, rather than local rights that pertain to collectives. In this light, recent attempts to theorize minority or indigenous rights appear to be ineffective and will probably be counter-productive.

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Karin Tengnäs

The global competition for African land is at a historical peak. Local effects of large-scale land acquisitions depend on multiple factors, but women's rights and livelihoods are generally very fragile due to historical and contemporary injustices. Good land governance is important for turning the land acquisitions into equal and equitable development opportunities. The human rights-based approach promotes good governance by adding strength and legal substance to the principles of participation and inclusion, openness and transparency, accountability and the rule of law, and equality and nondiscrimination. By empowering rights-holders and enhancing duty-bearers' capacity, international development cooperation can lead to wider and more gender-balanced inclusion of civil society in negotiations of large-scale land acquisitions and greater adherence of duty-bearers to the rule of law. This is especially important in African countries with large amounts of land and weak legal and institutional frameworks to protect rights, especially those of women.

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Bernard Matolino

In classical African communitarianism, individual rights have tended to be accorded a secondary status to the good of the community. What is prioritised are the duties and obligations the individual has to the whole as opposed to the entitlements one can expect to derive from a community qua individual. I seek to show that this view, by its own standards and assumptions, is erroneous in framing rights as secondary to the good of the community. I attempt to show that individual rights are an inherent component of classical African communitarian accounts. Further, I seek to argue for a non-communalist view of African communitarianism which takes into full account the multiple factors that constitute modern African communities. Such a view, I suggest, will avoid the unnecessary dichotomisation of rights which has become synonymous with the classical African communitarian account.

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Erasmus Masitera

There has been much debate on the question of rights in African communitarian thinking. Some scholars have averred that duties are prior to rights in African communitarian society, and that to prioritise rights is foreign to the non-Western perspective. Yet, there are others who argue that in non-Western societies rights are prior to duties. I share this view. I present my position by arguing that economic rights in African communitarianism affirms autonomy of the individual, though the same rights are expressed through the ideas of consensus and human well-being. In my argument I state that human well-being is well expressed as a communal effort climaxed through consensus where all these are premised on individual autonomy. By arguing in this way, I respond to the accusation that says African philosophers who argue for the priority of rights have failed to demonstrate how rights are considered prior to duties in African societies.

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Helmut Graupner

The basic human right to sexual autonomy and self‐determination encompasses two sides: it enshrines both the right to engage in wanted sexuality on the one hand, and the right to be free and protected from unwanted sexuality, from sexual abuse and sexual violence on the other. This concept elaborated by the European Court of Human Rights, in the light of European legal consensus, suggests that the age of consent for sexual relations (outside of relationships of authority and outside of pornography and prostitution) should be set between 12 and 16 years. In any event the age of criminal responsibility should be the same as the age of sexual consent.

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African Communitarianism and Human Rights

Towards a Compatibilist View

Munamato Chemhuru

That human rights are new, alien, and incompatible with African social and political reality is pervasive in much of African social and political thinking. This supposition is based on the assumption that African societies are inherently communitarian, and hence inconsiderate to the guaranteeing and safeguarding of individual human rights. However, I seek to dispel this essentialist notion in African social and political thinking. I consider how the human rights discourse could be reasonably understood in the African traditional context if the thinking that is salient in the African communitarian view of existence is properly understood. After considering the way in which human rights are guaranteed within an African communitarian framework, I give reasons why the quest for individualistic human rights in Afro-communitarian society could be considered to be an oxymoron. Overall, I seek to establish that an Afro-communitarian model is compatible with the quest for the universality of human rights.

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Christopher J. Allsobrook

This critique of the theory of freedom and power, which Lawrence Hamilton advances in Freedom is Power (2014), maintains that Hamilton’s appeal to a genealogy of needs - (established in his earlier work, The Political Philosophy of Needs (2003)) to distinguish power from domination – is inconsistent with the theory of power he advocates. His account of needs is no less vulnerable than that of rivals to the problem of power he identifies. I advance a rights recognition theory, which is compatible with this theory of power and I argue that it helps to provide support for the distinction, which Hamilton wants to make, between power and domination, which one cannot obtain from his theory of needs.

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The Human Rights Dialogue

Foundationalism Reconsidered

Maria Granik

In this article, I defend the need for meaningful dialogue about the foundations of human rights. The article consists of four main parts. Part I provides context for the argument by discussing the status of foundations in the Universal Declaration of Human Rights and several other human rights legal instruments. Part II outlines the main criticisms of foundationalism by Michael Ignatieff and Richard Rorty. Part III deals with two main problems raised by anti-foundationalist positions. First, the motivation to defend and implement human rights is often tied to a rational understanding of why these rights are worthy of protection. Second, rejecting the search for rational foundations can itself lead to ideological problems, even if this search cannot ultimately succeed. Silence concerning justifications for rights informs our conversation about them, and making any concealed underlying assumptions explicit can be valuable. Finally, Part IV discusses ways in which a genuinely dialogical foundationalism can be possible - one that does not fall into the trap of dogmatism. More specifically, this section addresses the possibility of a secular foundationalism by examining Michael Perry's critique of this approach.

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Jonathan O. Chimakonam and Victor C. A. Nweke

We argue that Menkiti and Gyekye – the forerunners in Afro-communitarianism, to different extents both trivialise the notion of human rights. While Menkiti prioritises community and denies human rights, Gyekye who upholds human rights subsumes these to the community. We contend that both are however mistaken in their trivial conceptions of human rights. To clarify the confusion, we propose that the notion of rights in Afro-communitarianism can have two possible senses namely, rights as participatory and rights as entitlements and that the failure to recognise these senses was what led Menkiti to a fringed position and Gyekye to a difficult position. We then conclude that Afro-communitarianism, in both Menkiti and Gyekye harbours a certain notion of rights contrary to Menkiti’s assumption but it is not one that accommodates the idea of inalienability contrary to Gyekye’s suggestion.

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The Common Good and a Teleological Conception of Rights

An Article on the African Philosophy of Rights

Sabelo Ndwandwe

A common communitarian criticism of rights discourse picks at the individualistic picture of rights which is said to presuppose a society where persons are conscious of their separateness. In contrast, an African communitarian society is said to put less emphasis on individual interests; it encourages harmony, not divergence of interests, competition, and conflict. Thus, preoccupation with rights would be incompatible with and even hostile to the possibility of community. This article argues the opposite; it submits that rights and community are mutually constitutive. To this end, I explore T. H. Green’s social recognition thesis which reconceptualises rights and obligations in a teleological framework. When conceived in this fashion, rights transcend antithetical relations between individuals and society as typified by classical natural rights thinkers. I argue that, considering a normative significance of the common good, a compelling account of rights in African philosophy is better conceived in a teleological framework.