What is the most fundamental human right? Part 3: Three contenders

Josef Seifert | May 4, 2013 | 3 cmts

We have said that in a certain sense the right to life is the most fundamental and basic natural human right. Now we have to clarify in which sense this is true and which are other points of view perceived from which it is not the most fundamental one, and whether these other points of view to determine the most basic human right are more foundational or fundamental ones. We will here omit the purely historical point of view, which basic human right was the first one to be included in a modern human rights catalogue because we do not deem this question to be relevant for our analysis. (From this point of view, at least if one prescinds from all ancient and early medieval human rights catalogues, Martin Kriele may be right or also his critics, but I will exclude this purely historical criterion here altogether).

A. The most basic good that is condition of all other goods and rights as referent of the “Urgrundrecht” and the “right to life”

The first point of view for determining which is the most basic human right (the point of view we have considered until now) is: Which right refers to the most basic good that is the condition of all others? Now if vivere est esse viventibus and the existence is the condition of all other goods of a person, there is no other good more fundamental than existence and life and hence the right to life is the most basic one. In support of this thesis we also refer to the three arguments we have given above against the habeas corpus right being the most foundational and most basic human right.

B. The most universal and comprehensive right as “Urgrundrecht”

The second point of view under which the most basic human right could be determined would correspond to the question: “Which human right is the most universal and comprehensive one and includes all others?” This is not at all true to say of the right to life which refers to a very specific and most basic good but does not say anything about any other right a person might possess; and obviously if one only recognized the right to life but would violate all other rights of a living person, one would still violate a human being’s fundamental human rights in the most horrible way, by torturing a person, sexually abusing her, refusing to grant her right to education, to freedom, etc.

From this point of view therefore the right to life is in no way the Urgrundrecht, but rather “the right to be respected in one’s human dignity,” as well as “the right not to be harmed” (which includes, besides the right to life many other rights such as not to be calumniated, sexually abused, to be deprived of freedom of conscience or religion, etc.), or even the “right of everyman never to be just treated as a means but always as an end in himself” are much better candidates for the claim to be the most basic human right.

Another potential candidate for being the most universal and basic human rights would be “the right not to have any objective evil inflicted upon ourselves”. To claim that this right (which seems to amount to another formulation of the right not to be harmed) is the most basic human right would concord well with the first moral obligation of the physician according to the Hippocratic Oath, (primum non nocere). This right could well be considered the most basic one which includes the right to life as well as all other fundamental human rights. The problem with saying that the “right not to be harmed” is the most basic human right is twofold: a) first, not all objective evils inflicted on us correspond to rights, for example being given a bad example by our friends; b) Second, this right is very abstract and lacks the concreteness of the right to life, but because this second objection refers to all rights of this group and to the very idea of “the most fundamental” character of an “Urgrundrecht,” it is not relevant here.

Thus I propose to give the most basic human right, under this point of view, both a positive and a negative formulation and say that it is “the right to be respected in one’s human dignity,” as well as “the right not to be harmed.”

C. The third point of view for determining the “Urgrundrecht”: the sublime rank of a good in which a right is founded<

The third point of view would be the sublime rank of a good in which case to violate the right that refers to the highest intrinsic value and to the highest good for the human person would be the highest and most fundamental right. From this point of view the now much debated “right to freedom of conscience” – that is, because of the legalization of “naturally criminal acts” such as abortion and euthanasia – is a crucial right for members of the medical profession today –  or the “right to religious freedom” would be far higher and more basic human rights than the right to life because to just live without any other value and good in one’s life is certainly not the highest though the most basic good for a human person.

Hence the right to realize freely those values which exceed the value of life and which are connected with human freedom and with the spheres of moral and religious values are excellent candidates to be called the most fundamental human right.

The Right to Life, unlike some other basic and inalienable human rights such as the right to ownership, is an unrenounceable fundamental human right

The right to life is, under the first point of view, not merely the most foundational and basic human right (Urgrundrecht) but it is also, just as the most fundamental rights according to the second and third point of view, an unrenounceable human right, and this in a twofold sense: like all basic human rights, being rooted in the nature and dignity of persons, also the right to life inalienably belongs to every human person. Above and beyond this, and in contrast to other basic human rights such as that to have property, which a monk may freely renounce by taking a vow to radical poverty, the right to life is irrenounceable also in the sense that I cannot renounce receiving what this right entails by giving other persons a “carte blanche” to kill me, which does not exclude that I may, and that it is often extremely noble to do so, sacrifice my life for another person, but this act can be distinguished from renouncing my right to life. For example, Maximilian Kolbe who took the place of a family father condemned to die in a hunger bunker in a concentration camp, did not allow the Nazis to take his life or renounce his right to life but he offered himself as innocent victim to the Nazis in place of another man whom they would equally unjustly have killed. This act does no renounce one’s right to life or authorize the evil authorities of the camp to violate any person’s right to life, which precisely is irrenounceable. In contrast, I can dissolve legal obligations of other parties towards me, for example by renouncing my legitimate claims from a contract[1] and can even renounce some fundamental human rights such as the right to have private property.

While I can legitimately sacrifice my life by taking the place of an unjustly murdered person, as did Maximilian Kolbe, I cannot tell another person that he can legitimately kill me because I have renounced my right to life. Not even in relationship to my own action I can abdicate this right and legitimately commit suicide, even though here it is more the question of the pure moral obligation “do not kill” than a question of rights which make no sense in relation to my own action. Also this fact sheds light on what was mentioned above: that moral obligations do not only consist in respecting rights.

The limits of this post do not allow us to discuss at greater depth the relations between (the impossible) renouncing or foregoing the right to life and the noble act of sacrificing one’s life for others, nor to discuss more deeply the two other senses of the Urgrundrecht (most fundamental human right) discussed above and the ways in which these are absolutely irrenounceable.

[1] See Adolf Reinach, „The Apriori Foundations of the Civil Law,“ transl. by J. F. Crosby, Aletheia III (1983), pp. xxxiii-xxxv; 1-142, of Adolf Reinach: „Die apriorischen Grundlagen des bürgerlichen Rechtes“, in: Reinach, Adolf, Sämtliche Werke. Texkritische Ausgabe in zwei Bänden, Bd. I: Die Werke, Teil I: Kritische Neuausgabe (1905-1914), Teil II: Nachgelassene Texte (1906-1917);  hrsg.v. Karl Schuhmann Barry Smith (München und Wien:  Philosophia Verlag, 1989), 141-278.