Human Rights and Privacy
Basic Concepts
• Is it good enough to know the “definition” of a
concept or term?
• Difference between political philosophy and
political science.
• Are lawyers and politicians experts on such
• Please list some concepts that are either more
basic than or inter-definable with “human
• Justice, duty, morality, power, liberty,
entitlement (授權), equality, fraternity,
protection, harm, utility (效益), property,
fairness, coercion, interference, obligation,
What Philosophers can Contribute
Critically examine
Argue for a position
• Which component is more intuitive, “Human”
or “Rights”?
• Is “human” a biological, social, legal or
universal concept?
• Does it connote an individual or a group?
• When did we assume the term to be
indifferent to sex or gender?
• What is a right?
• How many types of rights are there?
• What is the relationship between legal and
moral rights?
• Legal rights only make sense in the context of
positive laws.
• Moral rights are believed to exist just in virtue
of the fact that there are humans.
• Right is often explained together with duty.
• A person A has a right to x implies that some
other persons have a duty to assist A to obtain x
or not to deprive A of x.
• In most general terms, rights are justified claims
to the protection of persons’ salient interests.
• Some philosophers use the more abstract
concept “dignity” to explain the necessity of
upholding rights.
• Wesley Hohfeld (霍菲爾德) introduced 4
senses of “right”: claims, liberties, powers and
immunities (豁免權).
• Claims rights (索賠權利) are the most
important and well-understood. They entail
duties and responsibilities. On the other hand,
liberties rights only entail freedom or
permission for the rights-holder.
? Ought to P not permitted to not P
1. Claim rights: X has right with respect to Y to do P
Y has a duty to X not to interfere with X’s
doing P.
2. Privilege right: X has privilege with respect to Y
to do P  Y has no right against X not to do P.
3. Power rights: some right or duty of Y is apt to be
created, altered or extinguished by X’s exercise
of that power.
4. Immunity rights: Y is disabled from altering X’s
legal relations.
Components of Rights Claims
• A has right to x against B by virtue of y.
A: Right-holder (claimant)
X: the object of the right
B: Respondent of the right (duty-bearer)
Y: Justifying ground of the right
Benefit Theory
• To have a right is to be the directly intended
beneficiary (受益人) of other’s performance
of a good-providing duty.
• What about the accidental beneficiary of the
Choice Theory
• To have a right is to be in a justified position to
determine by one’s choice how others will act.
• Emphasis on inter-personal relationship.
• H. L. A. Hart’s (哈特) concern: “What do rights
add to our moral vocabulary that could not be
accomplished with any other part?”
• Rights give people control over other people’s
freedom. Other people’s freedom depends on my
choices if I have a right against them. If we only have
the concept of duty, the above doesn’t hold: From the
fact that A has a duty to B, it doesn’t entail that B has
any control over A’s freedom. The control exercised by
rights-holder has to be control of the duty such that it
can be claimed or waived verbally. However, the dutybearer cannot declare the duty waived. That party can
only control the duty through performance.
• What about the rights of children and animals? Are
these cases better explained by the benefit theory?
• We may analyze and understand the nature of
rights by examining the 4 items in the formula:
A, X, B, Y.
• “X” is the good in the claims of rights.
• For example, there are the relatively
uncontroversial goods “freedom”, and “wellbeing”.
• They are fundamental in the sense that we have
already implicitly agreed that each person is
entitled to act on his/her own towards achieving
certain goals. Consequently, freedom and wellbeing are the necessary conditions for the
success of any human action.
Three Levels of Rights
• 1st generation rights: liberties and privileges of
citizenship (freedom of speech and religion, and
freedom from arbitrary arrest, etc.).
• 2nd generation rights: socio-economic claims
(education, housing, healthcare, employment,
• 3rd generation rights: focused on communities
(minority language rights, national rights to selfdetermination, rights to environmental integrity,
Negative vs. Positive Rights
• Negative: non-interference; negative rights
never conflict with each other.
• Positive: assistance; may conflict with each
other and are dependent on resources.
• Having rights in virtue of being human.
• Assumption of unconditional worth to the
existence of each person.
• In contrast, merit is differential and has to be
• On the fundamental level, there is the
egalitarian (平等) assumption that everyone is
entitled to the same concern and respect.
• Most people nowadays are more familiar with
the concept “justice”; thanks to Michael
Sandel’s (桑德爾) famous book/lecture.
• John Rawls (羅爾斯) famously says that
“justice is fairness”.
• So, how is justice related to human rights?
• For some, it seems more inclusive and
humane to talk about promoting justice than
to assert one’s rights.
• Relatedly, some have criticized that the
emphasis on rights obscures the more
fundamental concerns about needs and
• The point is whether the antagonism between
right-holder and duty-bearer is real.
Rawls vs. Nozick
• The debate on justice between the two giants
in analytic philosophy is legendary.
• Understanding this may help us to see the
issues about human rights more clearly.
• A Theory of Justice 《正義論》 vs. Anarchy,
State and Utopia 《無政府、國家與烏托邦》
John Rawls
• Justice consists in fair treatment of all agents.
• Each is to have basic liberties and means of
subsistence. Apart from this, differential
distribution of goods is allowed so long as the
arrangement is based on a fair procedure such
that it is to the greatest advantage of the least
• Maximin principle over aggregate or average
Robert Nozick (諾齊克)
• Human rights on material need are violation
of individual rights to liberties.
• Particular private entitlements “fill the space
of rights, leaving no room for general rights to
be in a certain material condition”.
• In other words, compulsory charity and
taxation are similarly unfair redistribution of
goods because they infringe the rights of the
original owners of the goods.
• The “human rights” we are now familiar with
may be those that are consequent to the
general adoption of the Universal Declaration
of Human Rights (世界人權宣言) by UN in
• Although such rights sound universal and
natural, their development follows a tortuous
course in history and it is often criticized that
“human rights” are primarily Western ideas.
• Historically speaking, rights are by-products of
laws; in other words, laws confer rights on
certain people.
• Hence, it was not even assumed that humans
are equal (slaves and foreigners are inferior to
• Babylon: Hammurabi’s Code (漢摩拉比法典)
(1800 BC)
• Roman Senate: Law for all people (jus gentium) (
• Magna Carta (大憲章)(1215).
• English Bill of rights (權利法案) (1689)
• US Constitution (美國憲法) (1789)
• Universal Declaration of Human Rights (1948)
• International Covenant on Economic, Social and
Cultural Rights (1966)
• First World Conference on Human Rights (1968,
• International Convention on the Elimination of All
Forms of Racial Discrimination (1969)
• International Covenant on Civil and Political
Rights (1976)
• International Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or
Punishment (1987)
• International Convention on the Rights of the
Child (1990)
• International Convention on the Protection of
the Rights of All Migrant Workers and their
Families (2003)
• International Convention on the Rights of
Persons with Disabilities (2006)
• Codes and laws do not imply the existence of
human rights insofar as they are treated as
political agreement between restricted
• What spurred the development of a universal
and all-inclusive concept of rights is the
Western development of liberalism (自由主義)
and individualism (個人主義) in the last 300
years or so.
John Locke (洛克)
• Natural rights (自然權利)
• In a state of nature, human enjoy a state of
• However, in a society humans are in bondage
and in danger.
• That is why a government is formed (upon
tacit consent (默許) of all members to a social
contract) to protect people from harming each
Jean-Jacques Rousseau (盧梭)
• Social Contract 《社會契約論》 (1762)
• General will (公共意志), private will, will of all
• A hypothetical transaction: trading natural
liberty for civil liberty and property ownership,
Thomas Paine (潘恩)
• Rights of Man 《人權論》 (1791)
• First hint of globalism and universality: “My country is
the world, and my religion is to do good”.
• Asserts the existence of the “natural dignity of man”.
• Relatedly, the 1776 American Declaration of
Independence 《美國獨立宣言》 states: “We hold
these truths to be self-evident, that all men are created
equal; that they are endowed by their Creator with
certain unalienable rights; that among these are life,
liberty and the pursuit of happiness”.
• In the French Revolution, there was similar
emphasis on human rights: “Men are born
and remain free and equal in rights … The aim
of every political association is the
preservation of the natural and inalienable
rights of man; these rights are liberty,
property, security, and resistance to
• We should, however, note that despite the
tone of universality, exclusivity was still tacitly
assumed: for example, women were
recognized to be entitled to the same rights as
men only relatively recently.
• Mary Wollstonecraft (沃斯通克拉夫特):
Vindication of the rights of Woman 《女權辯
Philosophical Systems
• In a bigger context, the development of the
concept of rights has been guided by
prominent moral theories.
• At around the same time, Kantian and
Utilitarian ethics were the two competing
systems of ethics.
Kantianism (康德主義)
Deontological ethics (道義論)
Emphasis on intention and duty.
All moral laws are universalizable.
Treat humans as ends, never as means.
Utilitarianism (功利主義)
• Proposed by Jeremy Bentham (邊沁) and developed by
John Stuart Mill (穆勒).
• What is moral is what promotes the highest aggregate
of utility: consequentialism (結果主義).
• Bentham regards natural rights as “nonsense upon
stilts” and that men are simply not born free.
• That’s why for him there are only legal rights.
• In other words, legal rights are not to be understood as
being subject to a higher level of moral scrutiny.
Marxism (馬克思主義)
• It might be easily misunderstood that Marxists
are by default staunch defenders of human
• For Marx, natural rights as understood by
Locke, et al. are simply an expression of
egoism for members of the privileged class.
• If the goal of Marxism is to forge an ideal
community without conflicts, it follows that
claims of rights would not appear.
• As a result, the real task for a Marxist society
is to liberate people from religion, property
and law.
• Marx wrote that “the political emancipators
go so far as to reduce citizenship, and the
political community, to a mere means for
maintaining these so-called rights of man”.
Problems and Controversies
Is the Concept of Rights too Egoistic (利己)?
• Is the concept of rights necessarily interestdriven and individually based?
• If so, why is it bad?
• How can rights talk be adjusted to
accommodate a sense of communal (公社)
Chinese Context
• Traditional Chinese values are family-oriented.
• Will rights claims cause disharmony among
family members?
• From a communitarian point of view (社群主
義) the assumption that each person lives a
life on his/her own terms is a myth.
• Is the upholding of social hierarchy always in
conflict with individual rights?
• It may also be claimed that talks of rights
imply debts. But this does not sound right in
the Chinese ears: no parents would welcome
the idea that they owe to their children or
that their children have claims rights on them
• In fact, if the debt metaphor holds, it is the
reverse: children naturally owe to their
Symmetry of Rights
• Do you allow that for some important rights,
the relationship between the right-holder and
the duty-bearer is asymmetrical?
Amartya Sen (阿馬蒂亞·森)
• “To see Asian history in terms of a narrow
category of authoritarian values does little
justice to the rich varieties of thought in Asian
intellectual traditions. Dubious history does
nothing to vindicate dubious politics.”
• The politics of rights is a means to achieve
economic dominance.
• US Department of State’s Country Reports on
Human Rights Practices leaves US out!
State and Paternalism (父愛主義)
• Just as children’s rights are sometimes
usurped by the parents for their own good,
can a citizen’s right be likewise violated?
• Do the rights of the majority always trump the
rights of an individual?
• In 2000, Madeleine Albright (奧爾布賴特) (US
Secretary of State) said: “China has signed the
International Covenant on Civil and Political
Rights. Unfortunately, its official policies have
always fallen well short of these standards,
and deteriorated markedly this past year”.
Demandingness (苛求)
• Is it too demanding for the duty-bearer?
• For example, a person A’s right to not being killed
entails my duty not to kill her, which is easily
complied. However, does it also entail my doing
whatever in my power to prevent A’s being killed
by others?
• Furthermore, if the emphasis on duty is
unchecked, such a society is in fact the imagined
communal state where everyone voluntarily gives
and is reluctant to take.
Moral Distance (道德距離)
• Why does it seem that my duty to assist a
starving African is less than that to assist the
household matters of my neighbor?
• Is there a sphere of influence of rights and
• If so, does it follow the hierarchy of family,
friend, community, country and race, etc.?
Where is Compassion?
• Richard Rorty (羅蒂) questions the motivation
for putting human rights at the core of our
societal values and advises us instead to
“concentrate our energies on manipulating
sentiments, on sentimental education”.
• Rorty’s view strikes a similar chord with
Confucianism (儒家).
• Mengzi (孟子) thinks that humans have four
innate sentiments (siduan 四端): compassion (惻
隱之心), aversion to shame (羞惡之心), respect
for courtesy and modesty (辭讓之心) and
discernment for right and wrong (是非之心).
• That is why moral education is not rule learning
but cultivation and development of the
emotional seeds.
• In other words, reason (理) and rightness (義)
should not be based on an impartial view of
duty and claim. Otherwise, the Confucian
ideals will collapse into Legalism (法家).
Empowerment (授權)
• Judges cannot strike down laws as
incompatible with human rights.
• Countries alleged to have violated human
rights need not respond to UN decision, if any.
• It is often claimed that human rights are used
by the great powers to achieve economic
control in developing countries.
Pluralism (多元主義)
• Can difference in values and practices justify
substantially different conceptions of human
Particular Cases
• It is sometimes difficult to judge in individual
situations how to interpret the claims of
human rights.
• Consider: abortion, just war, economic
sanction, death penalty, torture of terrorists,
Proportionate Limitations on Human Rights
• Limitation on human rights may be allowed if
we have gone through the following:
• Is there a legitimate aim to the interference?
• Is the interference prescribed by a clear and
accessible law?
• Is the interference proportionate to the
identified legitimate aim and necessary in a
democratic society?
• It is not as clear-cut a concept as we may
• Privacy is not a traditional constitutional right.
• The limit and scope of the private: the
intersection between the public and the
private spheres.
• Private: body-images, personal activities,
personal data, etc.
• In history, being in private might not be a good
thing. Hannah Arendt (鄂蘭) says that privacy
“meant literally a state of being deprived of
something … A man who lived only a private life,
who like the slave was not permitted to enter the
public realm … was not fully human”.
• Of course she was mainly referring to the Roman
culture of the public where the life in the res
publica (public arena) was truly honorable.
• In the traditional Chinese context, it seems
that the subject of privacy is the family rather
than the individuals.
• It follows that it is primarily a matter of where
to draw the boundary between public and
private rather than a question of how to
uphold privacy rights.
• The right to be let alone
• Spatial/locational privacy
• Decisional privacy
• 1881: A complaint by woman that she had
been observed against her will during
childbirth in USA.
• 1849: An English court's injunction for breach
of confidence restraining distribution of
etchings of Prince Albert and Queen Victoria.
• 1890: Warren (沃倫) and Brandeis (布蘭代斯)
explicated that the common law protected the
right of privacy.
• The initial formulation of the scope of rights to
privacy are protection of honour, reputation,
and correspondence.
• The idea that intrusion of privacy is a harm
can be attributed to Mill’s “harm principle”:
“the sole end for which mankind are
warranted, individually or collectively in
interfering with the liberty of action of any of
their number, is self-protection. That the only
purpose for which power can be rightfully
exercised over any member of a civilized
community, against his will, is to prevent harm
to others”.
• How should we define intrusion?
• Is it always state vs. the individual?
Prison Metaphor
• Bentham’s panopticon (圓形監獄)
• The centrally located all-seeing eye
• If those who are imprisoned lose their rights
to privacy, are the web-surfers similarly
constrained just because they have consented
to participate in a cyberspace that is made
possible by a technological all-seeing eye?
Personal Identity
• We need to have personal identity in order to
be citizen or to travel around.
• Does it make sense to demand complete
anonymity in the contemporary condition?
• Nowadays, the rights to privacy have extended
from the desire to be left alone to the fear of
stolen personal identity.
• Can you think of any positive “use” of privacy?
Alan Westin (威斯汀):
1. increase personal autonomy
2. allows emotional release
3. allows self-evaluation
4. creates environment for limited
5 Domains of Privacy
• 1. Freedom from observation
• 2. Restriction of images or information that
might be embarrassing and prejudicial to a
person’s interests.
• 3. Freedom of communicating with others
without being monitored by a third party.
• 4. Protection of the physical and mental
wellbeing of individuals.
• 5. The fostering of development of personality
free from control.
• Exercise of human rights and protection of
privacy need not go hand-in-hand.
• For example, if the unit of privacy is a family,
then the state may not interfere with how the
parents teach their children.
• You can also give your own case where the
respect for privacy involves a dilemma of
Positive Obligations
• Government’s obligations as giving rise to
duties to protect individuals even from attacks
on their rights by private individuals and other
non-state entities.
• In 2001, there was a complaint against the
noise of the Heathrow airport (希思羅機場)
as invading the privacy of the residents
nearby. Finally the court judged that the
status quo maintains a correct balance
between the rights of the residents and the
rights of others to travel and pursue
competitive commercial operations.
• Rights to know (media infringement of
• Rights to health (incarceration of bird flu
• Rights to security (stripe searching at the
• How can we reconceive the opposition
between the public and the private in order to
see the right to privacy not at odds with other
The Universal Declaration of Human
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, Whereas
disregard and contempt for human rights have resulted in barbarous acts which have outraged the
conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of
speech and belief and freedom from fear and want has been proclaimed as the highest aspiration
of the common people, Whereas it is essential, if man is not to be compelled to have recourse, as a
last resort, to rebellion against tyranny and oppression, that human rights should be protected by
the rule of law, Whereas it is essential to promote the development of friendly relations between
nations, Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in
fundamental human rights, in the dignity and worth of the human person and in the equal rights of
men and women and have determined to promote social progress and better standards of life in
larger freedom, Whereas Member States have pledged themselves to achieve, in cooperation with
the United Nations, the promotion of universal respect for and observance of human rights and
fundamental freedoms, Whereas a common understanding of these rights and freedoms is of the
greatest importance for the full realization of this pledge, Now, therefore, The General Assembly,
Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all
peoples and all nations, to the end that every individual and every organ of society, keeping this
Declaration constantly in mind, shall strive by teaching and education to promote respect for these
rights and freedoms and by progressive measures, national and international, to secure their
universal and effective recognition and observance, both among the peoples of Member States
themselves and among the peoples of territories under their jurisdiction.
Article 1
• All human beings are born free and equal in
dignity and rights. They are endowed with
reason and conscience and should act towards
one another in a spirit of brotherhood.
Article 2
• Everyone is entitled to all the rights and freedoms
set forth in this Declaration, without distinction
of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or
social origin, property, birth or other status.
Furthermore, no distinction shall be made on the
basis of the political, jurisdictional or
international status of the country or territory to
which a person belongs, whether it be
independent, trust, non-self-governing or under
any other limitation of sovereignty.
Article 3
• Everyone has the right to life, liberty and
security of person.
Article 4
• No one shall be held in slavery or servitude;
slavery and the slave trade shall be prohibited
in all their forms.
Article 5
• No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or
Article 6
• Everyone has the right to recognition
everywhere as a person before the law.
Article 7
• All are equal before the law and are entitled
without any discrimination to equal protection
of the law. All are entitled to equal protection
against any discrimination in violation of this
Declaration and against any incitement to
such discrimination.
Article 8
• Everyone has the right to an effective remedy
by the competent national tribunals for acts
violating the fundamental rights granted him
by the constitution or by law.
Article 9
• No one shall be subjected to arbitrary arrest,
detention or exile.
Article 10
• Everyone is entitled in full equality to a fair
and public hearing by an independent and
impartial tribunal, in the determination of his
rights and obligations and of any criminal
charge against him.
Article 12
• No one shall be subjected to arbitrary
interference with his privacy, family, home or
correspondence, nor to attacks upon his
honour and reputation. Everyone has the right
to the protection of the law against such
interference or attacks.
Article 30
• 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.
Selected References
• Donnelly, J. The Concept of Human Rights
(London: Croom Helm, 1985).
• Dworkin, R. Taking Rights Seriously (London:
Duckworth, 1978).
• Nozick, R. Anarchy, State and Utopia (NY: Basic
Books, 1974).
• Rawls, J. A Theory of Justice (Cambridge, MA.:
Harvard, 1971).
• Sen, A. “Rights and agency”, Philosophy and
Public Affairs, 11 (1982), 3-39.

Human Rights and Privacy