THE PHILOSOPHIC FOUNDATIONS OF HUMAN RIGHTS
The Nature of Human Rights
To speak of human rights requires a conception of what rights one possesses by virtue of being
human. This means the rights that human beings have simply because they are human beings and
independent of their varying social circumstances and degrees of merit.
Right is a chameleon like term that can describe a variety of legal relationships. Sometimes
‘right’ is used in the strict sense of the right holder being entitled to something with a
correlative duty in another. Sometimes it indicates a privilege to something. Sometimes it
refers to a power a power to create a legal relationship. Although all of these terms have been
identified as rights, each invokes different protections.
Modern human rights theories
Rights based on natural rights: Core rights
The common theme within this approach is that a minimum absolute or core postulate of any just
and universal system of rights must include some recognition of the value of individual freedom
or autonomy. Underlying such foundational or core rights theory is Immanuel Kant’s ethic that
the central focus of morality is personhood, namely the capacity to take responsibility as a free
and rational agent for one’s system of ends. A natural corollary of this Kantian thesis is that the
highest purpose of human life is to will autonomously. A person must always be treated as an
end, and the highest purpose of the state is to promote conditions favouring the free and
harmonious unfolding if individuality. Rights then flow from the autonomy of the individual in
choosing his or her ends, consistent with a similar freedom for all.
This approach is anchored on concepts of necessity. By necessity one means prescribing a
minimum definition of what it means to be human in any morally tolerable form of society. This
views human life as encompassing certain freedoms and sensibilities without which the
designation ‘human’ would not make sense.
The philosophic justification and affirmance of the core principles of human rights as universal
principles are highly significant for the vitality of human rights in rules. Rights that preserve the
integrity of the person flow logically from the fundamental freedom and autonomy of the person.
The influence of the qualified natural rights approach is evident in conventional international
human rights norms and several Constitutions. These normative instruments reflect the
universalist foundations of natural law rights by laying emphasise on the twin concepts of
‘inherent dignity’ and ‘inalienable rights’.
This is evident in articles 10 and 19 of the Constitution of Kenya, which stipulates that: “(1) The
Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social,
economic and cultural policies.
(2) The purpose of recognising and protecting human rights and fundamental freedoms is to
preserve the dignity of individuals and communities and to promote social justice and the
realisation of the potential of all human beings.
(3) The rights and fundamental freedoms in the Bill of Rights—
The Nature of Human Rights
To speak of human rights requires a conception of what rights one possesses by virtue of being
human. This means the rights that human beings have simply because they are human beings and
independent of their varying social circumstances and degrees of merit.
Right is a chameleon like term that can describe a variety of legal relationships. Sometimes
‘right’ is used in the strict sense of the right holder being entitled to something with a
correlative duty in another. Sometimes it indicates a privilege to something. Sometimes it
refers to a power a power to create a legal relationship. Although all of these terms have been
identified as rights, each invokes different protections.
Modern human rights theories
Rights based on natural rights: Core rights
The common theme within this approach is that a minimum absolute or core postulate of any just
and universal system of rights must include some recognition of the value of individual freedom
or autonomy. Underlying such foundational or core rights theory is Immanuel Kant’s ethic that
the central focus of morality is personhood, namely the capacity to take responsibility as a free
and rational agent for one’s system of ends. A natural corollary of this Kantian thesis is that the
highest purpose of human life is to will autonomously. A person must always be treated as an
end, and the highest purpose of the state is to promote conditions favouring the free and
harmonious unfolding if individuality. Rights then flow from the autonomy of the individual in
choosing his or her ends, consistent with a similar freedom for all.
This approach is anchored on concepts of necessity. By necessity one means prescribing a
minimum definition of what it means to be human in any morally tolerable form of society. This
views human life as encompassing certain freedoms and sensibilities without which the
designation ‘human’ would not make sense.
The philosophic justification and affirmance of the core principles of human rights as universal
principles are highly significant for the vitality of human rights in rules. Rights that preserve the
integrity of the person flow logically from the fundamental freedom and autonomy of the person.
The influence of the qualified natural rights approach is evident in conventional international
human rights norms and several Constitutions. These normative instruments reflect the
universalist foundations of natural law rights by laying emphasise on the twin concepts of
‘inherent dignity’ and ‘inalienable rights’.
This is evident in articles 10 and 19 of the Constitution of Kenya, which stipulates that: “(1) The
Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social,
economic and cultural policies.
(2) The purpose of recognising and protecting human rights and fundamental freedoms is to
preserve the dignity of individuals and communities and to promote social justice and the
realisation of the potential of all human beings.
(3) The rights and fundamental freedoms in the Bill of Rights—
