Universal Declaration on Bioethics and Human Rights[1]: A Confucian critique

(Draft)

Jonathan Chan

I

In theforewordtoUniversal Declaration on Bioethics and Human Rights, which was adopted by the General Conference of UNESCOin October 2005, the then Director-General of UNESCO, Koichiro Matsuura,gave the following remark on the Declaration

“In dealing with ethical issues raised by medicine, life sciences and associated technologies as applied to human beings, the Declaration, as reflected in its title, anchors the principles it endorses in the rules that govern respect for human dignity, human rights and fundamental freedoms. By enshrining bioethics in international human rights and by ensuring respect for the life of human beings, the Declaration recognizes the interrelation between ethics and human rights in the specific field of bioethics.” (Matsuura, 2005)

The remark makes two points. First, the Declaration takes human rights to be the ethical framework of dealing with ethical issues raised by medicine, life sciences and associated technologies as applied to human beings. Second, in adopting such an ethical framework, the Declaration recognizes a certain theoretical or conceptual connection between ethics and human rights in the field of bioethics.

The first point finds its explicit expression in the following Articles: Articles 2, 3, 5, 6, 7, 9, 10, 11, 12, 14, and 22. Article 2 states the aims of the Declaration. According to the article,one majoraim of the Declaration is to provide a universal framework of principles and procedures to guide States in the formulation of their legislation, policies or other instruments in the field of bioethics. The principles affirmed by the framework are stated throughout Articles 3-17. These principles are to a very large extent re-affirmation of the morality of human rights and the extension of the morality to the field of bioethics, which indicates that the Declaration takes the bioethical issues, to a great extent, to be human rights issues.

In what follows, the paper will discuss the moral position of the Declaration which, as we have seen, takes human rights, and its related moral precepts, to be the fundamental ethical framework in dealing with ethical issues raised by medicine, life sciences and associated technologies as applied to human beings. The paper will begin by identifying the fundamental principlesas well as some other derivative and specifying principlesof the ethical framework in question. The paper then moves to discuss some problems with adopting the ethical framework of human rights. The discussion will focus on the rationality of the notion of human rights. The paper then will discuss the moral position of the Declaration from a Confucian perspective.

II

Let us first take a look at some of the principles which areaffirmed by the Declaration,particularly those affirming or invoking the moral authority of human rights. The fundamental onesare affirmed in Article 3under the title of “Human dignity and human rights”.

Article 3(1) Human dignity, human rights and fundamental freedoms are to be fully respected.

(2)The interests and welfare of the individual should have priority over the soleinterest of science or society.

The above two principles of human dignity and human rights are what I call the framework principles, meaning that they serve as the foundational principles of the ethical framework which the Declaration adopts. The two principles are the most abstract and general ones of the framework. They do not tell us what specific actions are morally permissible and what not. The rest of the principles can be either regarded as the derivatives of the framework principles or the specifications of how the principles in question are to be understood in the field of bioethics.Articles 10 and 11,with the title “Equality, justice and equity” and “Non-discrimination and non-stigmatization” respectively, are instances of those derivative principles.

Article 10 The fundamental equality of all human beings in dignity and rights is to berespected so that they are treated justly and equitably.

Article 11 No individual or group should be discriminated against or stigmatized on anygrounds, in violation of human dignity, human rights and fundamental freedoms.

These two derivative principles add no new moral content to the two framework principles. They are simply logical consequences of the principles in question. Some other specific principles which the Declaration endorses, by contrast,are not merely logical consequences but further specifications of the principles in question.Articles 5, 6 and 7, with the titles “Autonomy and individual responsibility”, “Consent” and “Persons without the capacity to consent” respectively,are examples of those specifying principles. These principles focus on the autonomous aspect of human individuals and require this aspect of human individuals be respected. Article 5 states the general principle of respect for autonomy, whereas Articles 6 and 7 state how the principle is to be understood and implemented in the field of bioethics. Another article worth noting is Article 14. The clause (2) of the article asserts by implication that “the enjoyment of the highest attainable standard of healthis one of the fundamental rights of every human being without distinction of race,religion, political belief”. As the right to “the enjoyment of the highest attainable standard of health” is not included in the Universal Declaration of Human Rights of 10 December 1948 (UDHR), the right in question is at most an extension of the list of human affirmed by the UDHR.[2]Other significant specifying principles can be found in Articles 4, 8, 9, 12, 15, 16 and 17, which help either specify the framework principles or how the principles in question are to be understood and implemented in the field of bioethics.

III

As shown in the above discussion, the Declaration holds the moral position whichtakes human rights, and its related moral precepts, to be the fundamental ethical framwork in dealing with ethical issues raised by medicine, life sciences and associated technologies as applied to human beings.In what follows, I shall discuss the rationality of the moral position of the Declaration. The discussion will focus on some general problems concerning the moral position first. Then, I shall move on to discuss some specific problems concerning the moral position from a Confucian perspective.

Since the moral position of the Declaration presupposes the moral authority of human rights, to assess the rationality of the moral position of the Declaration requires us to assess the rationality of human rights. To assess the rationality of human rights, in turn, requires us to consider the following questions: Does the notion of human rights have a clear sense? What is the moral basis for human rights? Are they universal? Obviously, these questions are the ones which need to be answered if human rights are to have the rationality which they are supposed to have.

Does the notion of human rights have a clear sense? The answer seems to be obvious: human rights, by definition, are rights that we have simply in virtue of being human.That this is the intension which the notion of human rights has is uncontroversial. However, is the intension in question clear, or clear enough? In his recent book, James Griffin argues that the notion of human rights is an incomplete “historical notion”, which acquired its present sense only at the end of Enlightenment. Although the notion, according to Griffin, has undergone some development since the end of Enlightenment, it never reaches its perfect form. In Griffin’s view, one of the problems with the notion of human rights is that it lacksa determinate sense.“The term was left with so few criteria for determining when it is used correctly, and when incorrectly, that we often have only a tenuous, and sometimes a plainly inadequate, grasp on what is a issue.” (Griffin, 2008, p. 2) Without an adequate set of criteria for the use, i.e.,without a determinate sense, of the notion of human rights,we are unable to settle debates over human rights issues in a rational and fruitful way. We cannot tell, say, whether parents have a human right to decide the number and spacing of their children or whether a woman has a human right to determine what happens in and to her body or whether we have a human right to health. It needs more explanation if the notion is to have any moral force. (Griffin, 2008, p.14)

Griffinproposes to remedy the incompleteness of the notion by working on “the idea that human rights are protections of our human status and that the human status in question is our rational or, more specifically, normative agency.” (Griffin, 2008, p. 2) Human rights, according to Griffin, can be understood as protections of our normative agency. And the idea that we are normative agents can be explained by referring to the following picture of who we are

“We human beings have a conception of ourselves and of our past and future…We form pictures of what a good life would be...And we value our status as human beings especially highly, often more highly than even our happiness. This status centres on our being agents – deliberating, assessing, choosing, and acting to make what we see as a good life for ourselves.” (Griffin, 2008, p.32)

From the above, it is clear that for Griffin, the notion of normative agency is not very different from the notion of personhood. To be a normative agent is to be a person. To protect our normative agency is to protect our personhood. Griffin argues that our personhood or agency depends on three things: (1) our being autonomous; (2) our having minimum provision of resources and capabilities and (3) our having some basic liberties. (Griffin, 2008, p. 33) To protect our personhood, then, is to ensure these three human conditions not being violated.

By specifying human rights as protections of our personhood, Griffin’s account of human rights seems to be able to provide some useful criteria for governing the use of the notion of human rights. The notion of personhood, for instance, can help generate most of the conventional list of human rights as well as explain their moral force. By using the three criteria provided by the notion in question, we are, at least, able to tell what is at issue in a human rights dispute.

IV

In what follows, I shall discuss the moral position of the Declaration with reference to Griffin’s account of human rights.[3]Griffin’s account of human rights does help clarify some moral principles which the Declaration affirms. By taking human rights to be protections of personhood, the meaning of Articles 3, 10 and 11 become clearer. Also, Articles 8, 9,12,15 and 16 can be given a clearer interpretation based on the above understanding of human rights. We may take, say, Article 16 to be saying that the impact of life sciences on future generations should be given due regard so that their personhood would not be violated.Article 5 and 6 which put so much emphasis on individual autonomy can be explained in terms of Griffin’s account as well.

However, there are some other articles which seem to be unable to get support from Griffin’s account. For instance, Article 5 states

“…For personswho are not capable of exercising autonomy, special measures are to be takento protect their rights and interests.”

The notion of personhood is understood in terms of a person’s status as an autonomous being, in the sense that he or she is capable of exercising autonomy. If an individual lacks such a capability, he or she cannot be called an “autonomous” being and therefore lacks personhood. In that case, there is no question of protecting that individual’s human rights, since the individual would have no human rights at all, according to Griffin’s account of human rights. Article 7 with its intention to protect the rights of “persons without the capacity to consent” encounters similar difficulty too. Another difficulty is to explain the right to “the enjoyment of the highest attainable standard of health” which Article 14 asserts by implication. Although health is important to our personhood, to maintain our personhood does not require “the enjoyment of the highest attainable standard of health”. Many of us do not enjoy “the highest attainable standard of health”, and their personhood is left intact.

In the above, I have discussed some general problems with the moral position of the Declaration. In what follows, I shall discuss the moral position in question from a Confucian perspective. I shall first sketch the general position of Confucianism with regard to human rights. For the Confucian, individual rights can never be the ground of morality.[4]It is because the notion of individual rights requires a social structure in which a sharp distinction between individuals exists.[5]However, it is exactly such a sharp distinction between individuals that is absent in the Confucian society whose social structure is designed in such a way thatevery member of the society will become a person ofren.[6]In such a society, the interests and welfare of the individual do not have priority over the interest of society, given the interest of society is to turn the individual to be a person of ren. Nor does individual autonomy have the normative priority over other moral considerations which the Confucian takes to be essential to cultivating the individual to become a person of ren.

That the Confucian takes the virtue of ren to have the moral priority over the interests and welfare or the autonomy of the individual has significant implications for the acceptability the Declaration from the Confucian standpoint. It is evident that from the Confucian point of view, Article 3 is unacceptable.The article has a clause that “[t]he interests and welfare of the individual should have priority over the sole interest of science or society.” It is exactly this clause that the Confucian finds problematic. As we have seen, the Confucian takes the cultivation of the virtue of ren in people to be the ultimate goal of society. The goal in question thereby is an important interest of a Confucian society. Along this line of thought, for the Confucian, it is never true to say that “[t]he interests and welfare of the individual should have priority over the sole interest of science or society.” Articles 5, 6 and 7 are unlikely to be accepted by the Confucian as well. For the articles gives personal autonomy a kind of top moral priority, which, as we have seen, is contrary to the ethical orientation of the Confucian ethical framework. To say this does not mean that personal autonomy has no place at all in the Confucian moral framework. The point is that the value of personal autonomy within the Confucian ethical framework does not have the high priority which the Declaration accords to it. Along this line of reasoning, Article 12 would not be accepted by the Confucian either. It is because the Confucian takes the Confucian values to be representing an aspect of a certain culture, gives them higher priority than anything else.

References:

Confucius. The Analects: A Bilingual Edition, D.C. Lau (Trans.), ChineseUniversity Press, Hong Kong, 1992.

Donnelly, J. “Human Rights and Asian Values: A Defence of ‘Western’ Universalism.” In The East Asia Challenge For Human Rights, edited by Joanne R Bauer and Daniel A. Bell. Cambridge: CambridgeUniversity Press, 1999.

Griffin, James. On Human Rights. Oxford: OxfordUniversity Press, 2008.

Legge, James (trans.) (1960). Confucian Analects, the Great Learning, the Doctrine of the Mean, vol. 1, The Chinese classics: with a translation, critical and exegetical notes, prolegomena, and copious indexes. 3rd edition, with a biographical note by Lindsay Ride. Hong KongUniversity Press, Hong Kong.

Matsuura, K. Forward toUNESCO. Universal Declaration of Bioethics and Human Rights. 2005.

UNESCO.Universal Declaration of Bioethics and Human Rights. 2005. (accessed October 31, 2012)

United Nations.International Covenant on Economic, Social and Cultural Rights. 1966.

[1] UNESCO, Universal Declaration of Bioethics and Human Rights (2005). Available online at

[2] The right in question, however, is affirmed by the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 12 of ICESCR states: “The States parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” United Nations, International Covenant on Economic, Social and Cultural Rights (1966). Available online at:

[3]That the present paper focuses on Griffin’s account of human rights does not mean that there is no other account of human rights worth our attention. But in my view, Griffin’s account is the clearest and best capturing the idea of human rights as advocated by the human rights tradition among others. For a critical review of other accounts, see Griffin 2008, pp. 20-28.

[4]I take individual rights and human rights to be the same things.

[5]The distinction might not necessarily be a metaphysical one. Its existence can be due to adopting a certain social or political practice. To see this, we only need to focus on some of the functions of rights: rights are concerned with the distribution of power and status. Those with rights have enforceable claims, and need not rely on the good will of others. (Donnelly, 1999, p. 61) To emphasize on the distribution of power and status of the individual is to emphasize the distinction between people. However, for the Confucian, distribution of power and status can never be a central issue of our moral concern. What we have to concern about is harmony. To emphasize harmony is to emphasize the interdependence of people.

[6] The idea hat the fundamental aim of society is to cultivate people such that they become a person of ren can be discerned in a passage from The Analects: “Yan Hui asked about ren or humaneness. Confucius said, ‘Discipline yourself and return to ritual is what constitutes ren. If for a single day people could discipline themselves and return to ritual, all under heaven would return to ren.’’’ (Confucius, The Analects 12:1) The same idea can be found in The Great Learning

“From the Son of Heaven [the ruler] down to mass people, all must consider the cultivation of the person the root of everything besides.”(Legge, The Great Learning, sec 6)