— Theory of Human rights Structure Moving towards Developmentalism 

 

 

Abstract: The practice of human rights in contemporary China puts forward an urgent demand for the innovation in human rights theories. on the basis of summarizing the practice of human rights in contemporary China, the developmental theory of human rights holds that human rights are the value consensus and social norms fostered by the common crisis faced by all human beings under the background of globalization of market economy. The free, comprehensive and harmonious development of all people is the ultimate goal of human rights. Taking “the right to human development” as a purposive right can provide more enlightening explanations for the relational structure of human rights.

 

Keywords: human rights theories      structure of human rights      the right to human development      the developmental theory of human  rights

 

In the practice of human rights in contemporary China, the rights to subsistence and development are regarded as the primary human rights, the promotion of the free and all-round development of human beings as the supreme value pursuit of human rights, and the people’s sense of gain, happiness and security are the test for how well human rights have been promoted, with remarkable achievements achieved. This has not only provided abundant practical resources for the development of human rights theories, but also put forward a higher demand for innovation in human right theories. It is the responsibility of human rights theorists to promote the development and innovation of human rights theories by elevating these practical experiences to the theoretical level. The research group of the Center of the Study of Human Rights at Nankai University has undertaken the sub-project “New Developments of the Theory and Practice of Socialist Theory of Human Rights with Chinese Characteristics since the 18th National Congress of the Communist Party of China” of the Marxist Theory Research and Construction Project “Research on Several Major Basic Theories of Human Rights.” After several years of intensive research on the practice of human rights in contemporary China, the research group has put forward the “developmental theory of human rights.” The theory holds that human rights are the value consensus and social norms fostered by the common crisis faced by all human beings under the background of globalization of market economy. It takes the free, comprehensive and harmonious development of all people as the ultimate goal of human rights and reconstructs the relational structure of human rights with “the right to human development” as a purposive right.

 

 

Contemporary China has adopted a series of practical measures and obtained rich experience in advancing the human rights cause. These abundant human rights practices raise a series of theoretical questions on human rights, which need to be answered from a theoretical perspective.

 

In the report to the 18th CPC National Congress, “human rights should be earnestly respected and protected” was set as one of the goals for completing the building of a moderately prosperous society in all respects and deepening the reform across the board. The word “earnestly” truly reflects China’s clear awareness of the conditions and practical spirit needed to advance the development of human rights. China has worked to lay a solid economic foundation for realizing the right to human development by building a moderately prosperous society in all respects, promoting citizens’ full participation in development in all fields by implementing active public policies, removing institutional barriers to equal access to development by deepening reforms across the board, and expanding the social space for citizens’ independent participation in development by strengthening the protection of citizens’ rights.

 

 

The improvement of human rights protection requires a corresponding material foundation. Under the leadership of the Communist Party of China, China has developed and implemented the national strategy of building a moderately prosperous society in all respects. According to the Statistical Communique released by the National Bureau of Statistics in 2020, the annual gross domestic product (GDP) in 2019 reached RMB 99.0865 trillion yuan, with the per capita GDP reaching RMB 70,892 yuan and the gross national income (GNI) reaching RMB 98.8458 trillion yuan.¹

 

On the basis of sustained and rapid economic growth, the Party Central Committee and the State Council put forward the concept of “targeted poverty alleviation,” which facilitated a major shift in China’s poverty alleviation strategy and significantly improved the basic living standards of poverty-stricken population. According to the Statistical Communique released by the National Bureau of Statistics in 2020, as per the rural poverty standard of RMB 2,300 yuan per person per year (at the constant price in 2010), the poverty-stricken population by the end of 2019 was 5.51 million, with a poverty incidence of 0.6% and the annual per capita disposable income of rural residents in poor areas standing at RMB 11,567 yuan.²

 

In the aspect of the protection of the right to basic living standards, according to the Statistical Communique released by the National Bureau of Statistics in 2020, the annual per capita disposable income of Chinese residents in 2019 was RMB 30,733 yuan, the per capita consumption spending of residents RMB 21,559 yuan and the Engel coefficient 28.2%.³ According to the data of the white paper published by the  State Council Information Office, from 2005 to 2018, China cumulatively solved  the issue of access to safe drinking water for 520 million rural residents and more  than 47 million teachers and students in rural schools, consolidated and improved  the water supply security level for 173 million rural population, with the centralized  water supply rate and tap water penetration rate in the countryside reaching 86% and  81% respectively. In 2018, the per capita living space of urban residents reached 39.0  square meters and the per capita living space of rural residents reached 47.3 square  meters. As of 2018, the length of China’s railways in service had reached 131,000  kilometers and the total length of roads in service nationwide had reached 4.85  million kilometers. In 2018, the total passenger trips carried by railway reached 3.375  billion and the total passenger trips conducted by road nationwide reached 13.67  billion. In rural areas, 99.9% of the households acquired access to road transportation  in their natural villages, and 97.1% of incorporated villages acquired access to bus  transportation.⁴

 

In the aspect of the protection of the right to health, according to the Statistical Communique released by the National Bureau of Statistics in 2020, by the end of 2019, there were, in total, 34,000 hospitals, 960,000 community-based medical and health institutions and 17,000 specialized public health institutions nationwide. By the end of the year, there were a total of 3.82 million medical practitioners and assistant medical practitioners and 4.43 million registered nurses. There were, in total, 6.97 million beds in hospitals and 1.38 million beds in township health centers. The total diagnosis and treatment visits of the year reached 8.52 billion.⁵

 

In the aspect of the protection of social rights, according to the Statistical Communique released by the National Bureau of Statistics in 2020, by the end of 2019, there were 434.82 million participants in the basic endowment insurance for urban workers, 532.66 million participants in the basic endowment insurance for urban and rural residents, and 1,354.36 million participants in the basic medical insurance. A total of 205.43 million people were covered by unemployment insurance, 254.74 million by work-related injury insurance, and 214.32 million by maternity insurance. By the end of the year, a total of 8.61 million people were entitled to minimum living allowances in urban areas, 34.56 million to minimum living allowances in rural areas and 4.39 million to assistance and support for rural population in extreme need, and 9.18 million times of temporary assistance were provided throughout the year.⁶

 

 

In the process of building a moderately prosperous society in all respects, China has adopted active public policies to protect citizens’ right to fully participate in the economic, political, social, cultural and other fields of development.

 

In the economic field, China has implemented an “employment priority strategy” and a proactive employment policy, setting employment as a priority goal in economic and social development and working to drive employment through sustained and sound economic development. A series of measures including policy guidance, employment service, and supply-demand regulation have been taken to adjust and restructure the labor supply and demand. According to the Statistical Communique released by the National Bureau of Statistics in 2020, by the end of 2019, 774.71 million people were employed in China, 13.52 million new urban jobs were created, and the surveyed urban unemployment rate and registered urban unemployment rate stood at 5.2% and 3.6% respectively. The total number of rural migrant workers in China was 290.77 million, of which 174.25 million were outgoing migrant workers and 116.52 million were local migrant workers.⁷

 

In the political field, by constantly improving the system of people’s congresses and consultative democracy, China is working to better protect citizens’ rights to be informed, to be heard, to participate, to supervise and to vote. It is also striving to promote all-round transparency in government affairs, the judiciary and budgets, and constantly improve the system for handling complaints in the form of letters and visits from the public.

 

In the social field, China is striving to build a diversified social governance system, improve the system of social governance featuring the leadership of Party committees, government responsibility, social coordination, public participation, and rule of law guarantee, promote fine-tuned social governance, build a social governance structure that is jointly built and shared by all, and improve the mechanisms for expressing, coordinating and protecting interests. Efforts are being made to guide the people to exercise their rights, voice their demands, and resolve disputes in accordance with the law, strengthen the function of community services, and ensure constructive interactions between government administration, social adjustment and residents’ self-governance.

 

In the cultural field, China is actively working to improve the system of public cultural services, advance the standardization and equal access to basic public cultural services, improve the network of public cultural facilities, strengthen the capacity building for community-level cultural services, continue to promote the free opening of public cultural facilities, and boost the prosperity of literature and arts, press and publications, radio, film and television, and sports.

 

In the educational field, China adheres to a policy of giving priority to the development of education and modernizing education, and works to promote the all- round and equitable development of education at all levels. According to the Statistical Communique released by the National Bureau of Statistics in 2020, in 2019, there were 2.864 million postgraduate students, 30.315 million undergraduate and college students, 15.765 million secondary vocational students, 24.143 million senior high school students, 48.271 million junior middle school students, 105.612 million regular primary school students, 795,000 special education students, and 47.139 million preschool students. The retention rate of nine-year compulsory education was 94.8%, and the gross enrollment rate of senior high school students was 89.5%.⁸

 

In the information field, China has worked actively to build a ubiquitous and efficient information network. According to the Statistical Communique released by the National Bureau of Statistics in 2020, by the end of 2019, there were 449.28 million fixed-line broadband Internet users and 122 billion gigabytes of mobile internet access traffic.⁹

 

 

China is working to deepen the reforms across the board to remove all kinds of institutional barriers to equal participation in development and equal sharing of the development outcomes. As President Xi Jinping said, “We need to overcome man- made violations of fairness and justice through innovative institutional arrangements and ensure people’s rights to equal participation and equal development.”¹⁰

 

In the economic field, China is actively working to eliminate discrimination in employment, protect the rights of various economic entities to participate in economic life on an equal basis, and removing institutional barriers for private enterprises to participate in economic activities on an equal basis. A strategy of coordinated development across regions has been implemented to promote more balanced development. According to the Statistical Communique released by the National Bureau of Statistics in 2020, the GDP of the eastern region grew by 6.2% year-on-year in 2019, the central region by 7.3% and the western region by 6.7%.¹¹ At the  same time, China is working to adjust the income distribution pattern by improving  the regulatory system and mechanisms and policy system for income distribution,  protecting legitimate income, regulating excessively high income, cleaning up and  standardizing invisible income, confiscating illegal income, increasing the income  of low-income groups and expanding the proportion of middle-income groups, and  striving to narrow the income distribution gap between urban and rural areas, regions  and industries, so as to foster an olive-shaped social structure.¹²

 

In the social field, China has made great efforts to break down the urban-rural dual structure and make breakthroughs in the reform of the household registration system to facilitate the integrated development of urban and rural areas, and guarantee the equal rights of urban and rural residents. Efforts have been made to protect the legitimate rights and interests of minority ethnic groups, women, children, the elderly and the disabled so that they can fully participate in social life on an equal footing and with equal opportunities and share the fruits of development.

 

In the political field, China has made major revisions to the Electoral Law, which stipulates that “deputies to people’s congresses shall be elected according to the same population ratio in urban and rural areas.” Efforts have been intensified to enforce strict Party discipline, with eight regulations and eight prohibitions, regulations of the Communist Party of China on Intraparty Political Activities under new Situations and regulations of the Communist Party of China on Inner-Party Supervision developed, and regulations of the Communist Party of China on Disciplinary Punishment and  Constitution of the Communist Party of China revised, to exercise strict constraints  and restrictions over the power of leaders and cadres. At the same time, efforts have  been made to strengthen the construction of a socialist rule of law system with Chinese  characteristics, realize the common advancement of the law-based governance of  the country, law-based exercise of state power and law-based administration of  government, and push forward the integrated construction of a country, a government  and a society under the rule of law. Efforts have also been made to make laws through  proper procedures, enforce them in a strict manner, administer justice impartially, and  ensure that everyone abides by the law.

 

 

Through deepening reform, China has continuously strengthened the protection of various citizens’ rights. China has implemented judicial reform to strengthen the judicial protection of citizens’ personal freedom; improved the modern market system to facilitate the free and orderly circulation of goods and factors of production; carried out reform of the household registration system to protect citizens’ freedom of movement; carried out reform of the administrative system and implemented the system of lists of government powers to give citizens greater space for free choice; carried out reform of the scientific and technological system to encourage researchers to conduct independent innovations; strengthened the protection of intellectual property rights to ensure the rights and interests of knowledge producers are fully protected; worked to strengthen the protection of personal privacy and the right to personal information, and to protect the private living space of individuals; and worked to protect freedom of religious belief and maintain social harmony among religions.

 

 

 

Based on the inter-subject constructivist paradigm, human rights should be regarded as an inter-subject consensus and a constantly constructed social norm under specific social and historical conditions. To be more specific, human rights are a social consensus reached and social norms established by people in a specific stage of social development to meet the needs of social members to live together. The formation of such a social consensus and norms has a relationship with the specific social structure, but this relationship is not the unidirectional structure-determining relation advocated by structuralism. Instead, it includes not only the decisive role of a certain social structure on social consciousness, but also the shaping role of social subjects on the established social structure. An examination of the development history of human rights concepts and human rights norms reveals that the human rights concepts and norms are closely related to the social phenomena in four aspects: first, the emergence and development of market economy, which is related to the emergence of human rights concepts and norm; second, globalized communication driven by the market economy, which is related to the universalization of human rights concepts and norms; third, common crises faced by human society, such as World War II, which are related to the establishment of international human rights mechanisms.

 

First, human rights are a question of human subjectivity under the market economy system. The emergence of human rights concepts and norms is structurally related to the emergence and development of the market economy. On one hand, the market economy requires individual independence, freedom and equality in order to meet the requirements of market exchange. On the other hand, the polarization caused by the market economy leads to the revolt of the bottom groups, demanding the establishment of a social security system to protect the rights of the disadvantaged groups in the market economy. As Marx pointed out when analyzing the nature of freedom and equality in capitalist society from the perspective of productive relations in Economic Manuscripts 1857-1858, when the economic form and exchange posit the all-sided equality of its subjects, then the content, the individual as well as the objective material which drives toward the exchange, is freedom. Equality and freedom are thus not only respected in exchange based on exchange values but, also, the exchange of exchange values is the productive, real basis of all equality and freedom. As pure ideas, equality and freedom are only idealized manifestations of the exchange of exchange values. As things developed in legal, political, and social relations, equality and freedom are only such a basis at another dimension. Exchange value, or more accurately, the monetary system, is in fact a system of equality and freedom.¹³

 

Through an analysis of the human rights protection system in 21 countries with a market economic system, the research group found that there is an internal correlation between the market economic system and human rights protection system. The establishment and development of a market economic system facilitates the establishment and perfection of human rights protection system. First of all, the market economic system and individual freedom and rights are mutually reinforcing, and in particular, the right to a legal personality, the right of personal freedom, the right to free migration, the right of property, the right of privacy and the right of equality are more intrinsically related to the establishment and development of the market economic system. At the same time, the establishment and development of the market economic system has also facilitated the protection of citizens’ political rights, especially the right to be informed, the right to be heard, the right to participate, the right to supervise, the right to vote, etc. Second, the establishment and development of the market economic system and the protection of economic and social rights restrict each other, and promote each other under relatively balanced conditions. The polarization between the rich and the poor caused by market competition will lead to social fragmentation and make the market economy system unable to operate sustainably. Therefore, it is necessary to further strengthen the protection of economic, social and cultural rights while safeguarding individual freedom and rights. A review of the history of human rights protection in different countries shows that the protection of the right to work, basic living conditions, social security, health and education provides a healthy and sustainable labor force for the market economy, and the increase in the government tax revenue brought by the market economy also provides a relatively sufficient economic foundation for the protection of these rights. However, the national welfare system also, to a certain extent, reduces the working motivation of workers and weakens their competitiveness in the global market. Therefore, economic, social and cultural rights and market economic development are mutually restricting, and only under balanced conditions can they reinforce each other. Finally, the protection of the rights of specific groups and the development of a market economy also show a mutually restrictive relationship. On one hand, the protection of the rights of specific groups including women, children, the elderly and the disabled can provide a harmonious social environment for the operation and development of a market economy; on the other hand, the development level of a market economy determines the economic foundation for the protection of the rights of specific groups. The welfare policy intended for protecting the rights of specific groups needs to be based on transfer payments through taxation, which will not only reduce funds used for investment, but also boost consumer demand, and only under relatively balanced conditions will this policy advance the development of a market economy.

 

Second, the content of human rights evolves with the development of the market economy. The development of human rights has gone through a series of stages. In the aspect of the subject, it has shifted from the non-universal subject to the universal subject and extended from the individual subject to the collective subject; in the aspect of content, it has extended from freedom and political rights to economic, social and cultural rights, and from individual rights to the collective rights of nations, peoples and mankind; in the form of protection, it has extended from national mechanisms to regional and international mechanisms; in the aspect of the bearer of obligations, it has extended from the state and government to enterprises and non- enterprise social organizations. The research on human rights protection system in different development stages of market economy in 21 countries shows that there are differences in human rights protection in different development stages of market economy: civil and political rights are the main human rights demands in the initial development stage of market economy, and economic, social and cultural rights require further protection in the balanced development stage of market economy.

 

Third, globalized communication resulting from the market economy provides an important foundation for the universalization of human rights. With the advent of the era of globalization, the globalization of communication requires the formation of some common rules of interaction observed by all. It is in the context of this era of globalized communication that the concept of “human rights” with a more universal significance emerged. Sociologist Bryan Turner points out that human rights are an important feature of the process of a globalized society. Globalization has created many problems that are not entirely internal to the nation or state.¹⁴ Since the problems  arising from globalization are not confined to the nation or state, the concept of civil  rights has to be extended to the concept of human rights.¹⁵ In the context of globalized  communication, more and more countries have included the respect for and protection  of human rights into their national constitutions and formulated corresponding laws to  protect human rights.

 

Fourth, common crises faced by mankind in the context of globalization have driven the establishment of international human rights mechanisms. In the context of globalization, mankind is also faced with common crises brought by globalization. The most devastating crises faced by mankind in the 20th century were the two  world wars. As World War II was coming to an end, people around the world drew a  lesson from the painful experience and felt the necessity and urgency of establishing  binding international human rights norms and mechanisms. In the preamble to the  Charter of the United nations adopted by the UN Constituent Assembly in 1945,  it is clearly stated that, “We the peoples of the United Nations determined, to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small...”¹⁶ In the preamble to the Universal Declaration of  Human rights, which was formulated and adopted by the United Nations in 1948,  it is also clearly stated that, “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...”¹⁷ On the basis  of the Universal Declaration of Human rights, the United Nations has formulated a  series of international conventions on the protection of human rights and established  corresponding treaty-based mechanisms. Since the establishment of the UN Human  Rights Council in 2006, the Universal Periodic Review of Human Rights mechanisms  have been established successively.

 

 

To summarize the development and practice of human rights in contemporary China requires a corresponding theoretical analytical framework. However, the current mainstream theories of human rights are neither sufficient nor effective enough to explain the practice of human rights in China, showing obvious limitations in vision and framework.

 

First, the development of human rights in China obviously corresponds to the development needs of the socialist market economy since the launch of reform and opening up, and it is developing and evolving with different stages of development of the market economy. However, the current mainstream theories of human rights deduce from the subject attribute of man or creator the basic human rights that should be enjoyed by people. The theoretical question of human rights arising from this is: how to understand the special social consciousness and social norm of human rights?

 

Second, Western liberalism regards individual freedom as the core right and ultimate goal in the human rights system, while China has always emphasized that the rights to subsistence and development are the primary human rights in the process of promoting human rights. The resulting theoretical problem is: how to understand the ultimate purpose and core value of human rights protection?

 

Third, although China has always maintained that the rights to subsistence and development are the primary human rights, there is no clear official definition of the rights to subsistence and development, and scholars differ on their definitions. The resulting theoretical questions include: how to define the meaning and content of the rights to subsistence and development? How to understand “primary”, and does it refer to “primary” in theory or in strategy? How to understand the relationship between the right to subsistence and the right to development, and which one is more “primary” or are they equally “primary”?

 

Fourth, the international community divides human rights into two categories of economic, social and cultural rights on the one hand and civil and political rights on the other hand. Western scholars generally agree that there are three generations of human rights. The resulting theoretical questions include: how to clarify the relationship between the right to subsistence, the right to development and the two categories of human rights? How to structure the relationships among human rights?

 

Fifth, to answer these theoretical questions, we need to not only exhaust and fully absorb the reasonable resources of previous human rights theories, but also transcend and innovate in theories according to the development of practice. The resulting theoretical questions include: how to view and choose the various research paradigms adopted in the previous human rights theories? How can we achieve theoretical breakthroughs and innovations on the basis of fully absorbing the reasonable resources of previous human rights theories?

 

It is the responsibility of contemporary human rights theorists to face up to the aforementioned questions of human rights theory and to conduct theoretical exploration and innovation on the basis of fully absorbing the existing resources of thought and rich practice.

 

 

The research on human rights theory must focus on the research paradigm adopted in the construction of human rights theory, understand the theoretical assumptions, analysis framework, demonstration methods, advantages and disadvantages of various research paradigms, and clarify the competition and change trend of such research paradigms.¹⁸

 

The concept of paradigm, proposed in 1962 by Thomas Kuhn, the US scientific philosopher, in the book The Structure of Scientific revolutions, refers to the belief  accepted by the scientific community in a certain historical period, including  hypothesis, theory, criterion and method, which involves the basic commitment  to some ontology, epistemology and methodology. A breakthrough results in the  transformation of the paradigm.¹⁹ The research paradigm of human rights theory mainly involves the basic assumption, analysis framework, mode of argument, and core issues of human rights theory. There are many different paradigms in the study of human rights theory, resulting in “paradigm competition.” The result of this competition does not simply determine whether the paradigms are right or wrong or whether they survive or die out, but lead to predominance changes, which produces a “paradigm transformation.” The transformation of the research paradigms provide the conditions for the breakthrough innovation of the theory.

 

 

By summarizing the evolution of the research paradigms for human rights theory, we can find that the research paradigms for human rights theory have experienced several great competitions and transformations, namely, from theological paradigms to humanological paradigms, from objective and subjective paradigms to inter-subjective paradigms, from fundamentalism paradigms to constructivism paradigms, and from deontological paradigms to teleological paradigms.

 

Firstly, from theological paradigms to humanological paradigms: The so-called “theological paradigm” is to treat God as the ultimate source of human rights, regard the relationship between God and humans as an analytical framework for human rights demonstration, and use the “divinity” given to human as the basis of the legitimacy of human rights norms. In contrast, the so-called “humanological paradigm” no longer takes the relationship between humans and God as an analytical framework, but treats the human characteristics, needs, living environment or mutual relations as the final basis for the legitimacy of human rights.

 

In the West during the Middle Ages, the research paradigm of social norms theory is dominated by the theological theory of Christian schools, whose core proposition is the “divine rights of kings”. The original Western human rights theory did not abandon the theological demonstration paradigm of Christian schools, but changed the content of “divine rights” from feudal power and hierarchical obligations to equal human rights. Such transformation is realized by reinterpretation of the concept of “natural law” in the scholasticism, which produced the classic theory — the theory of “natural rights” with far-reaching influence. The Enlightenment thinkers in modern Western countries stated briefly that human beings had the natural rights given by God by analyzing the natural state and further demonstrated the existence of natural rights in human laws by means of social contracts. Such a demonstration method of divine human rights or natural rights laid a theoretical foundation for human rights, but it also had inherent problems in terms of effectiveness of argumentation, theoretical interpretation and social acceptance. The divine human rights are only a theological assertion and naturally an assumption only. The transformation from the natural state to the social state is not based on the historical facts and the theory of human rights established accordingly cannot stand further examination by later scholars. The natural rights that can be inferred from natural laws are rather limited and the mode of argument for divine human rights cannot provide acceptable theoretical explanation for atheists.²⁰ Due to the above defects in the theological paradigm, human rights  theorists gradually turned from the theological paradigm to the humanological  paradigm, which provided theoretical basis for the legitimacy of human rights from  the perspective of the subjective characteristics of human beings, the relationship  between human beings and the objective world and the relationships between people.

 

Second, the transformation from objective and subjective paradigms to inter- subjective paradigms: The so-called “objective paradigm” uses the objective interests of human beings as the argument basis for the legitimacy of human rights, typically represented by French encyclopedists and British utilitarianism. However, the so- called “subjective paradigm” takes the subjective attribute of human beings as the argument basis for the legitimacy of human rights and uses human beings’ freedom, rationality, autonomy and basic needs to infer the inevitability of human rights, typically represented by the theory of German philosopher Kant.

 

According to Holbach, a French encyclopedist philosopher, the right or freedom  of action of human beings is restricted by justice. His actions can only accord with  social welfare and only be beneficial to the people. Therefore, the right of a social  person lies in the freedom of his actions accords with his justice to the people in the  society.²¹ Jeremy Bentham, a utilitarian philosopher in Britain, criticized natural rights as “nonsense”, as the logical premise was wrong. He pointed out that rights cannot come from some transcendental hypothesis], but can only be found from real life experience. Rights are interests in themselves, and can bring benefits to the owners.²²  John Muller further developed Bentham’s utilitarian viewpoint. In his view, it is right  that society should protect a person from possessing something, but the reason can  only be social utility.²³ The objective interests taken as the basis of the legitimacy of  human rights have aroused concerns of many human rights theorists. According to  such a theoretical paradigm, as long as the happiness or welfare of the whole society  can be promoted to the maximum extent, certain human rights can be violated.  Moreover, there is another difficulty in this theoretical paradigm, namely, if human  rights are regarded as the tool to promote the greatest happiness, then the recognition  of human rights is not determined in a normative manner, but based on the calculation  and comparison of interests. But the calculation and comparison of interests is  characterized by greater subjectivity and uncertainty, which makes it difficult to form  a universal and stable consensus on human rights.

 

Unlike the objective paradigm, the subjective paradigm infers the existence and legitimacy of human rights from the perspective of human subjectivity. Anthony Langlois summarized six major theories demonstrating human rights based on some characteristics of the subject, including human dignity, rationality, autonomy, equality, basic needs and potency realization.²⁴ Robert Nozick believed that each of  the subjective characteristics seemed necessary but inadequate for generating moral  constraints, and so should be integrated. In summary, human beings are such a kind of  existence that can construct a long-term plan for their lives, and can adjust and guide  their lives according to a certain comprehensive concept of choice. When a person  shapes his life according to a comprehensive plan, he is to give his life something  meaningful. It is just such an ability to pursue a meaningful life that makes people a  special existence and also makes their behavior follow the moral side constraints.²⁵ It  is also theoretically difficult to regard humans as a subject and as the basis of human  rights. As Costas Douzinas, a postmodern human rights theorist, pointed out, human  nature is a vague concept and cannot be used as the source of normative values.  To understand human rights, only if human rights are regarded as relying on others  can human rights return to their true colors and become a post-modern standard.²⁶  Douzinas further believed that we should not attribute our due rights to moral  rationality, but should understand human rights from the perspective of relationship  between rights and obligations, namely, before enjoying one’s own personal rights,  it one must fulfill one’s obligation to respect others’ dignity.²⁷ This means that the paradigm for constructing human rights theory has transformed from subjectivity to inter-subjectivity.

 

The so-called “inter-subjective paradigm” means that subjectivity or objectivity is no longer the source of legitimacy for human rights. Instead, the relationship between subjects is the basis for human rights, and human rights attributed to a consensus among subjects. John Rawls, a British philosopher, believed that the principle of social justice should be made in a fair state. It is a contract reached by those who want to promote their own interests and rationality, in an initial situation of equality, to determine the basic conditions for their cooperation. However, Rawls’ inter-subjective paradigm is implemented at an abstract level, short of the consideration of realistic conditions and the analysis of historical construction process.

 

Third, the transformation from fundamentalism paradigm to the constructivism paradigm: The so-called “fundamentalism paradigm” essentially thinks that “everything has its matrix, which has formed the essence of the existence of things.”²⁸ In terms of epistemology, according to Richard Fumerton, it is argued that  “all knowledge or confirmed beliefs are ultimately established on the basis of the  knowledge or confirmed beliefs not inferred.”²⁹ According to such a proposition, if we can find a “self-evident” belief and infer other beliefs on this basis, a strict and reliable knowledge system can be established. Many theorists who try to make philosophical arguments for human rights adopt a fundamentalism paradigm for research, trying to find a self-evident foundation for human rights. They believe that if such a basis can be found for human rights, it can explain the universality and constraints of human rights.

 

Compared with the fundamentalism paradigm, the constructivism paradigm regards knowledge as social construction, rather than real “images”, “representation” and “presentation.” Any kind of knowledge is formed on the basis of people’s treatment of the cognitive objects. The so-called truth or social scientific knowledge is not “discovered” but “invented” and is the product of construction. Construction is not individual, but social. From the perspective of the constructivism paradigm, human rights are regarded as a kind of social construction with historical contingency and cultural relativity. According to the jurist Kex Martin, only a moral request cannot form human rights and accordingly human rights should be such rights clearly recognized by society. There are no human rights in hierarchical societies without civil rights, especially in a slave society.

 

The sociologist Brian Turner believed that human rights are an important  feature of the process of globalization and a “global ideology.”³⁰ This political form is also affected by various social problems, such as imperialism, globalization, regionalization, migrant workers, refugees and aboriginal peoples. Since the problems arising from globalization are not limited within nations and countries, the concept of civil rights must be extended to the concept of human rights.³¹ The sociologist  Malcolm Waters believed that the sociological theory about human rights must adopt  the social construction paradigm and regard the universality of human rights as a  social construction. He pointed out: “social constructivism holds that a social system  is not universal, but is characterized by historical contingency and cultural relativity.  What I want to argue is that a proper sociological theory on human rights must  actually adopt the view of social constructivism. Human rights, as a system like any  other system, aim at specific cultural and historical situations, and its universality is  precisely that it is a human creation.”32 Jack Donnelly, an American political scholar,  criticized contemporary liberal human rights theorists for treating the history of  human rights development as “the gradual expansion of the inherent logic of natural  rights.” In his view, “there is nothing natural and inevitable in an orderly social and  political life around the concept of human rights. This special list of rights, which we  consider authoritative today, reflects an accidental response to the specific conditions  of history.”³³

 

The transformation of the research on human rights theory from the fundamentalism paradigm to constructivism paradigm make the interpretation of human rights lose some degree of moral absoluteness and increases its relativity to the social history. This kind of “fall” from the altar is a blessing for human rights. Only by taking human rights as the product of the inter-subject construction under the real social and historical conditions, can human rights break away from the utopian fate of absolute universality and enhance its normative binding under complex and diverse realistic conditions.

 

Fourthly, the expansion from the deontological paradigms to teleological paradigms: The teleological paradigm regards human rights as a social norm which must be established to achieve some kind of good. The rationality of human rights lies in whether and to what extent it has promoted some kind of good, for example, utilitarianism defines “good” as the well-being or welfare of mankind, and it is justified if the compliance with human rights norms can maximize the overall or average well-being or welfare.

 

Unlike the teleological paradigm, the deontological paradigm regards human rights as an absolute moral order beyond the consideration of social utility. The absolute obligation to respect human rights is either granted by God or provided by the divine legislator, or regarded as the absolute order based on human reason. For example, the human rights theorist Ronald Dworkin believed that the function of rights in political discourse was like a “trump card”.

 

Individual rights are such trump cards played in front of the overall interests of the society. They do not do not require individuals to make sacrifices to promote public social happiness or satisfy the preferences of the majority of people.³⁴ The  American philosopher Robert Nozick believed that rights should not be regarded as  the goal to be achieved, but as “side constraints” for actions, namely, such constraints  shall not be violated in any action. He pointed out: “I firmly believe that the moral  side constraints on what we can do reflect the fact of our individual existence and  show that no moral flattening can occur among us. It is definitely not moral that  one of us is so overpowered by other lives to achieve more comprehensive social  interests. That some of us will make sacrifices for others certainly cannot be proved.  The following basic idea that there are different individuals who have different lives,  so no one can be sacrificed for others, which is the basis for the existence of moral  side constraints.”³⁵ John Rawls also believed that “every member of the society is  considered to be certain inviolability based on justice or natural rights, and even the  welfare of no one else can go beyond such inviolability. Justice denies that it is right to  deprive others of their freedom in order to make some people enjoy greater benefits.  Moreover, it is excluded to treat different people as one person to count their gains  and losses. Therefore, in a just society, fundamental freedom is taken for granted. The  rights guaranteed by justice are not subject to political transactions or trade-offs of social interests.”³⁶

 

However, the research on contemporary human rights theory has expanded to the teleological paradigm. After the September 11 Attacks in the United States in 2001, people began to rethink the balance between individual rights and public security. Jeremy Waldron believed that the viewpoint “there should be no needle-point pain for those who know the nuclear terrorist attacks even to save 100,000 people from nuclear burning” was a “disproportionate absurdity”³⁷, so the proportion analysis of human  rights should be used to replace the logic that individual rights overwhelm public  interests. In the process of fighting against COVID-19, the academic circles of human  rights generally use the principle of proportionality to demonstrate the rationality  of the rights restrictions on individual freedom, which has greatly weakened the  deontological argument that human rights are regarded as absolute obligations.

 

 

According to the analysis of the development trend of the paradigms for research on human rights theory, we believe that the innovation of human rights theory in China must adopt such a research paradigm suitable for human rights, that is they are a special social norm. Human rights are a special social norm which people make and are widely accepted according to the needs of social governance under the specific historical conditions of human beings, so the research on human rights should start from human beings rather than gods and from the inter-subject relationship among human beings to study the process and methods for constructing human rights consciousness and norms, and study the fundamental purpose it is to achieve. Therefore, the human rights research should adopt such a humanological, inter-subjective and constructive theoretical paradigm with deontology and teleology integrated.

 

First, the research on human rights theory in China should not adopt a theological paradigm, but a humanological paradigm. It should not regard God and Divine law as the source of human rights, but should explore the source of human rights from the practice of human beings themselves. Furthermore, it does not need to assume a supreme, perfect and all-mighty god in the argument of human rights, but endows people with divinity through the creation of God by human beings, thus demonstrating the universality, absoluteness and non-transferability of human rights. Accordingly, it should explore the origin and development of human rights as well as the universality and binding force under the realistic conditions based on the needs of human existence, the means of practice and the historical circumstances.

 

Second, the research on human rights theory in China should not adopt the traditional subjective or objective paradigm, but an inter-subjective paradigm. It should not deduce human rights directly from some subjective or objective factors, but should explore how the needs of the subject can be reached and what kind of human rights consensus has been reached under certain social conditions, and explore which factors have affected the process.

 

Third, the research on human rights theory in China should not adopt a fundamentalism paradigm, but turn to the constructivism paradigm instead. It should not find an absolutely definite basis for human rights, but explore how human rights are actually constructed in the society.

 

Finally, the research on human rights theory in China should not adopt absolute deontology or rough teleology. It should not treat human rights protection as an absolute, unconditional obligation, but as an obligation limited by real social conditions; moreover, it should not have the rationality of human rights protection established on the calculation of individual utility or the realization of the internal freedom of the subject, but on the common purpose of comprehensive and harmonious development of the freedom of all members of the society.

 

IV. Human Development as the Ultimate Goal of Human Rights  
 

Whether human rights exist purposively and what is the ultimate goal of respecting and protecting human rights is the core theoretical problem in the construction of the human rights system. The in-depth study of this problem will help to form a systematic understanding of the internal structure of human rights relations.

 

 

Deontology and teleology hold opposing propositions on whether human rights exist purposively or not. Deontology denies the purposiveness of human rights. For example, Robert Nozik believed that rights should not be regarded as the goal to be achieved, but as “side constraints” to action to be taken.³⁸ However, teleology holds  that human rights exist purposively. For example, utilitarianism believes that the  legitimacy of human rights lies in the ability to increase social utility.

 

Later deontologists and teleologists both trace their views back to Kant’s moral  decrees that “human is the purpose.” Kant once pointed out that “in the ultimate  kingdom of purpose, man is the purpose itself, namely, no one (even God) can use  him only as a means, and he himself will always be a purpose.”³⁹ But Kant did not explain the specific content of “human is the purpose”, which has left a wide space for various theoretical explanations.

 

The first explanation aims at human freedom. Lord Acton pointed out: “freedom is not a tool for achieving higher political ends. It is the highest political end in itself.”⁴⁰ Professor Qi Yanping also advocated that “the right to freedom is the  fundamental purpose of human rights protection.”⁴¹ The second explanation aims at  the development of human personality. The British philosopher Muller once pointed out: “in response to the development of each individual’s personality, each person will  become more valuable to himself and therefore can be more valuable to others. He  has a greater degree of life enrichment in his own existence; when there is more life in  a unit, naturally there should be more life in the group composed of different units.”⁴²  The third explanation aims at the existence of human beings. Professor Xu Xianming  demonstrated the “establishment of the core status of the right to subsistence in the  contemporary human rights system,”⁴³ and tried to explain other human rights from  the perspective of the right to subsistence. The fourth explanation aims at harmony.  Professor Xu Xianming pointed out that the right to harmony is a dominant right in  the human rights system. The value of harmony can generalize the common individual  values which can contain freedom, equality, fairness, justice, interests, order and  security.⁴⁴ The fifth explanation aims at human development. Professor Zhang Yonghe has pointed out that human rights themselves are not of purposive value. Human rights are produced in response to a more fundamental and ultimate problem, namely, the free and comprehensive development of human beings. The key to human rights is not to realize specific rights simply; on the contrary, the realization of specific rights is only a means to human development.⁴⁵

 

 

Marx regarded human freedom and all-round development as the target kingdom  of human development in the process of criticizing the libertarian theory of human  rights. In Das kapital, Marx pointed out that communism was a social form with the  free and comprehensive development of everyone as the basic principle.”⁴⁶ Through communism, “the development of human capacity as an end itself, the real kingdom of freedom, will begin.”⁴⁷

 

While summing up the path of human rights development in China, Xi Jinping  has repeatedly pointed out the relationship between human all-round development and  human rights and between human dignity and human values. On December 4, 2016,  in a congratulatory letter to the “International Symposium to Commemorate the 30th  Anniversary of the Un Declaration on the right to Development,” Xi pointed out: “For many years, China has adhered to the people-centered development thought, promoted the well-being of the people, ensured the people’s ownership in power and promoted the all-round development of human beings as the starting point and foothold for development, which have effectively protected the rights and interests of the people’s development and opened up a road for human rights development with Chinese characteristics.”⁴⁸

 

The report of the 18th National Congress of the Communist Party of China has  comprehensively explained the people-centered outlook on development and treated  “promoting the overall development of human beings” as the goal and requirement  of building a moderately prosperous society in an all-round manner. Moreover, the  expression “promoting the overall development of human beings” has been added  to the general outline of the Party Constitution revised at the 18th national Congress  of CPC?⁴⁹ Recommendations of the Central Committee of the Communist Party of  China for the 13th Five-Year Plan for Economic and Social Development, adopted  by the Fifth Plenary Session of the 18th Central Committee of the Communist Party  of China, put forward that “the improvement on the well-being of the people and the  promotion of the overall development of human beings should serve as the starting  point and foothold of development.”⁵⁰ The report of the 19th National Congress of the  Communist Party of China further stressed the need to “ensure that all people have  a greater sense of gain in the process of joint construction and shared development,  and constantly promote people’s all-round development.”⁵¹ recommendations of  the Central Committee of the Communist Party of China for the 14th Five-Year Plan  for Economic and Social Development and the Long-range objectives Through the Year 2035, adopted by the Fifth Plenary Session of the 19th Central Committee of the  Communist Party of China, treats “people’s equal participation and full guarantee of  the right to equal development” and “people’s all-round development”⁵² as important  content for the long-range objectives of basically realizing socialist modernization.  The white paper Seeking Happiness for People: 70 Years of Progress on Human  rights in China, published by the Information Office of the State Council in 2019,  further regards the idea that “promoting people’s free and all-round development is  the highest value pursuit of human rights” as an important content of “people-centered  concept of human rights.”⁵³

 

According to the above argument, we have reason to believe that, according to the Marxist point of view, the free, comprehensive and harmonious development of all people is the ultimate goal and value pursuit of human rights. This concept can be developed from the following three aspects.

 

First, taking “human free, comprehensive and harmonious development” as the purpose of human rights is an alienation tendency relative to the era of market economy which regards economic development as the purpose. Economic development should provide material conditions for realizing human development and serve as a means to realize human development. However, market competition driven by the capital often regards economic development as the purpose itself, and human and human development as a means only. Therefore, it is the core content emphasized by Marxism to regard human and human development as the purpose of economic and social development. Marxism not only emphasizes the development of human beings, but also particularly emphasizes the free and comprehensive development of human beings, which is proposed in view of the forced distortion and one-sided development of human beings under the capitalist system.

 

Second, taking “free, comprehensive and harmonious development of all people” as the purpose of human rights is relative to the concept of taking survival, freedom or happiness as the purpose of human rights. Human development is a process in which human potential is transformed into reality. Namely, it is the process of human growth. In order to realize human development, we need to guarantee people’s survival, material conditions and free space, but those are all the conditions for humans to realize their own development, and are the important contents of human rights protection, not the proper purpose to be realized by human rights.

 

Finally, taking the “free, all-round and harmonious development of all people” as  the ultimate goal of human rights is opposite to the concept that only emphasizes the  free development of individuals. The requirements and behaviors of each person’s free  development will conflict with those of others. In such a conflict, the powerful group  in the society will take the lead, and it may even result in “winner takes all.” And  since the disadvantaged in a society cannot enjoy the fruits of development equally,  and they will become increasingly “marginalized”. Therefore, the “free and all-round  development of human beings” taken as the purpose of human rights by Marx is not  the free development of isolated individuals, but the harmonious development of all  people. Classical Marxist writers emphasize that the free development of an individual  should not be guaranteed at the expense of the free development of others, but should  be guaranteed that “the development of an individual depends on the development  of all other people who have direct or indirect contacts with him” ⁵⁴ and should be  guaranteed that “everyone’s free development is the condition of all people’s free  development.”⁵⁵ In the Manifesto of the Communist Party, Marx and Engels clearly pointed out: “What is to replace the old bourgeois society with various classes and class antagonism will be a union with the free development of each individual as the condition for the free development of all.”⁵⁶

 

As can be seen, taking “all people’s free, comprehensive and harmonious development” as the ultimate goal of human rights does not deny such important values as freedom, survival, happiness and harmony, but takes human development as the core with freedom, survival, happiness and harmony integrated in the important dimensions and conditions for human development.

 

Taking “all people’s free, all-round and harmonious development “as the ultimate goal that human rights aim to achieve means that human development should be regarded as the ultimate value conversion of other human rights, as the determiner of the nature and functions of other human rights, as the coordination basis of human rights conflicts, and as the final test standard for the overall realization of human rights.

 

 

Taking human development as the purpose of human rights requires the clarification of the relationship between “human development” and the “right to development” as proposed by the United Nations.

 

The “right to development” cannot simply be equated with the “right to  human development.” A distinction should be made between the “right to human  development” as an end in itself and the “right to participating in and sharing  development” as a means to an end. The Declaration on the right to Development,  adopted by the United Nations General Assembly in 1986 (resolution 41/128), clearly  proclaimed that “the right to development is an inalienable human right by virtue of  which every human person and all peoples are entitled to participate in, contribute  to, and enjoy economic, social, cultural and political development, in which all  human rights and fundamental freedoms can be fully realized.”⁵⁷ It is clear from this definition that the right to development, as referred to in the UN resolution, is about guaranteeing equal opportunities for every human to participate in development, to enjoy the right to promote development, and to enjoy the fruits of development. The “development” mentioned here is not in terms of human development itself, but economic, social, cultural, and political development. Although participation in, promotion of, and enjoyment of economic, social, cultural, and political development is aimed at achieving human development itself, it is only a means to achieve human development and not an end in itself. As Professor Zhang Yonghe has pointed out, unlike development as a means of realizing the right to development, which refers mainly to the economic, social, and cultural development of a country, development as the end of the right to development refers to the human development itself, that is, the free and comprehensive development of a human.⁵⁸ In this sense, a strict distinction should be made between the right to “human development” as an end in itself and the right to “participating in, contributing to, and enjoying development” as a means to an end.

 

 

Chinese scholars have conducted in-depth studies of the status of the right to human development in the human rights system and have proposed four positionings.

 

First, sequential positioning: It is the primary human right as a foundation  and prerequisite. In a congratulatory letter to the “International Seminar on the 30th Anniversary of the Adoption of Un Declaration on the right to Development” on December 4, 2016, Xi Jinping pointed out that “China insists on a combination of the principle of human rights’ universality and the nation’s actual conditions, and insists that the rights to live and development are primary basic human rights.”⁵⁹

 

Professor Wang Xigen provides a more in-depth argument for the view that  the right to development is the primary human right. He holds that the right to  development and the right to subsistence have together become primary rights in the  human rights system for the following four reasons: The first is an external basis. “For  peoples in the developing countries, the most urgent human right issue is still the right  to subsistence and the right to economic, social and cultural development. Therefore,  the right to development should be prioritized.”⁶⁰ The second is historical basis. China  is the country with the largest population in the world with relatively poor per capita  resources and unbalanced development. Like other developing countries, for a long-  time China was subjected to foreign invasion, occupation, plunder and oppression;  and after the Second World War, China was contained by “Cold War” ideology, and  its economic and social development was seriously blocked.⁶¹ “To enjoy the right  to subsistence and the right to development has historically become the most urgent  demand of Chinese people.” The third is a theoretical basis. Fairness and justice are  core social values. To comprehensively and equally enjoy the right to development  meets the national conditions and the basic interests of all people in China. The fourth  is a realistic basis.⁶² Since reform and opening-up, “the Chinese government has been prioritizing the solution to people’s problems with the right to subsistence and the right to development” and vigorously developing the economy. The miracle of becoming the country with the highest average annual growth rate in its national economy has been achieved, and people’s living standards have been greatly improved.

 

Second, morphological positioning: It’s a comprehensive right that is general, complementary, all-sided. In terms of the morphology of the right to development, many domestic and foreign scholars regard the right to development as a comprehensive right. Arjun Sengupt, an independent expert on the right to development, sees two distinctive features in the right to development: “First, the right to development is a comprehensive right on which various rights rely. To realize the right to development, all rights, rather than the summation of rights merely, are required to be realized together;” “Second, only when at least one right has been improved and other rights have not been infringed upon, can the right to development be enhanced. The right to development includes civil, political, economic, social, and cultural rights, the violation of any one of which is a violation of the right to development as a whole.”⁶³ However, scholars differ in their opinions on how to  understand the comprehensiveness of the right to development. In the discussion of  the right to development in 2016, Chinese scholars offered some new understandings.

 

In her explanation on the comprehensiveness of the right to development, Professor Xia Qingxiao said that the right to development covers all other human rights. She notes that “the right to development breaks the ideological separation of civil rights, political rights and economic, social and cultural rights, unifies the two groups of human rights into the development process, and admits that all human rights are correlative and interdependent. The process to realize the right to development is exactly the process to realize all human rights.”⁶⁴ Professor Ye Chuanxing points  out that the right to development as a comprehensive right means that the right  to development is part of all rights and reflects a value orientation among these  rights. In this sense, the right to development embodies mutual interdependence and  indivisibility of various rights. He further argues that the right to development is also  a supplementary right. The right to development allows for putting forward specific  rights to development that are not yet explicitly recognized in the existing rights  system. The supplementary nature of the right to development allows it to contribute  to the ongoing development of the human rights system, promote the inclusion of new  rights into the human rights system, or add new interpretations for the fact that rights  are derived from the right to development.⁶⁵

 

Professor Qi Yanping expounded the comprehensiveness of the right to development from its generality and all-sidedness. In his view, the right to development is a category of general rights with similar requirements, qualifications and interests in the human rights system.⁶⁶ The all-sidedness of the right to  development indicates that no matter how complete and elaborate the human rights  system consisting of various secondary rights is, there will always be gaps between rights which can hardly be offset. In this case, the right to development as a catch-all right can appropriately fill in the gaps and cracks.⁶⁷

 

Third, functional positioning: It governs, coordinates and integrates the human rights system. Chinese scholars have also studied the functions of the right to development in the human rights system, proposing that the right to development governs, coordinates and integrates all human rights. Professor Zhang Yonghe highlighted the coordinating and integrating functions of i the right to development in the human rights system. He pointed out that the right to development is not merely a simple integration of political rights and economic, social and cultural rights. It stresses the coordination among various rights. Infringement of any right within the framework of the right to development is to trample on the overall right to development.⁶⁸ Professor Ye Chuanxing used the concept of “meta-right”⁶⁹  proposed by Amartya Sen and thinks that, with its functions, the right to development  is a “meta-right”. Development is a basic condition to fully realize the right to  development. Without development in terms of economic, social, political, cultural  development and other aspects, it is impossible for an individual to realize all the  rights. Affirmation of the right to development is of great importance for further  promoting full realization of all other rights. In this sense, it is safe to say that the right  to development is a condition or prerequisite for all other human rights and liberty.  The right to development is a qualified right to create conditions or policies for the  realization of other rights. Without the right to development being guaranteed, can the  others rights be enjoyed as much as they should be.⁷⁰

 

Fourth, structural positioning: It is a core right in the human rights system. Chang Jian and Liu Ming have proposed that the right to development serve as the core of the human rights system from the perspective of structural positioning. Their paper argues that there is a structural relationship among various human rights. Though the 1993 World Conference on Human Rights put forward that all human rights should be equally valued if human rights are a system rather than a chaotic cluster of rights, there must be a certain structural relationship among these rights where some serve as the core, and some play a supportive role. The question on which right should be seen as the core of the human rights system involves the understanding of the essence of humans and human rights, the core dimensions of human rights protection, the core structure of the relations among human rights, the core obligations of protecting human rights, the reasonable methods of restricting human rights and the core standards of evaluating human rights development. Based on the critique of the liberal theory of human rights, this paper has proposed placing the right to development at the core of the human rights system, and address such a view as the “developmental theory of human rights.”⁷¹

 

 

The study of the structural positioning of the right to human development has led to more in-depth studies of the overall structure of human rights. In such studies, the right to human development is treated as a purposive right in the structure of the human rights system, with all other human rights serving as supporting rights for the realization of this purposive right.

 

 

There are three main different analytical perspectives on the structure of human rights, namely the intergenerational analytical perspective of the temporal structure, the action analytical perspective of the obligation structure, and the genealogical analytical perspective of the content structure. Moreover, various analytical perspectives present a variety of views and claims.

 

The first is the intergenerational analytical perspective of the temporal structure. The intergenerational analytical perspective of the temporal structure takes the stages of historical development of human rights as a clue, classifies the content of human rights according to the stages in which they were proposed, and asserts that there is an inherent structural relationship among human rights at different stages. The most typical manifestation of this claim is the theories of the three or four generations of human rights. French human rights scholar Karel Vasak first developed the theory of three generations of human rights. He argues that the French Revolution of 1789 gave rise to the first generation of human rights focusing on civil and political rights; the October Revolution in Russia in the early 20th century promoted the second  generation of human rights concentrating on economic, social and cultural rights; and  the colonization and the liberation movements of the oppressed peoples in the 1950s  and 1960s promoted the third generation of human rights featuring the right to self-  determination of peoples, the right to development, the right to peace, the right to the  environment, among others. According to Vasak, the three generations of human rights  correspond to the three main ideas of Liberté, égalité, and Fraternité put forward at  the time of the French Revolution, with their human rights categories respectively  being referred to as the right to liberty, the right to equality, and the right to social  solidarity. From the perspective of their promoting subjects, some scholars also refer  to them as the first-world human rights, the second-world human rights, and the third-  world human rights respectively.

 

From the perspective of structural analysis of intergenerational human rights, some scholars have proposed a fourth generation of human rights. For example, in 2006, Professor Xu Xianming proposed the “right to harmony” as the fourth generation of human rights⁷², arguing that it transcends the confrontational spirit of  the previous three generations of human rights. In 2019, Professor Ma Changshan  and others proposed “digital human rights” as a fourth generation of human rights.  In 2019, Professor Zhang Wenxian proposed the “right to a good life” or “right to  a happy life” as the leading human right of the fourth generation⁷³, which mainly include the human right to security, the human right to a healthy environment, and right to a digital life.⁷⁴

 

However, the chronology of the propositions of human rights is more a reflection of the developmental process of the understanding of human rights and the historical processes that have driven it. It does not directly reflect the structure of human rights. While the classification of historical stages of human rights can greatly enlighten our understanding of the structure of human rights, the historical process of their propositions as a direct way of analyzing the structure of human rights is not sufficient to reveal the intrinsic links among human rights. As a result, the study of the structure of human rights should start from the intrinsic relationships among human rights and reveal their interdependence and mutual checks.

 

Second, the action analytical perspective of the obligation structure Different from the intergenerational structural analysis perspective of human rights, the action analytical perspective of the obligation structure uses the obligations that correspond to human rights as a clue, distinguishes between two different categories of rights with different actions, and explores the structural relationship between the two. It is represented by the division of negative and positive human rights. Negative rights are those that require the state to guarantee only a negative obligation of respect and non- interference, while positive rights refer to those that require the state to take positive actions to guarantee them. Corresponding to the distinction between negative and positive rights is the distinction between liberal and social rights, between citizens’ civil and political rights and economic, social and cultural rights, between negative and positive freedoms, and between the first and second generations of human rights, among others.

 

However, as many scholars have pointed out, this dichotomy is itself ridden with contradictions: the so-called “negative human rights” cannot be achieved by negative actions of the state, while the so-called “positive human rights” equally require the state to fulfill its obligations of respect and the lack of arbitrary interference. “All human rights require both positive actions and negative constraints. The forced separation of the two categories of human rights is not only a disregard for reality, but also a systematic violation and fragmentation of the integrity of human rights.”⁷⁵

 

Third, the genealogical analytical perspective of the content structure. Examining the structure of human rights in terms of their interconnected and mutually conditional content can reveal more profoundly the intrinsic links among human rights. In the past, a genealogical analysis of the content structure of human featured two main claims: the right to subsistence as the core right and the right to liberty as a purposive right.

 

On the one hand, here is an analysis of the structure of human rights with the  right to subsistence as its core. In 1992, Professor Xu Xianming proposed “the  establishment of the core position of the right to subsistence in the contemporary  human rights system”⁷⁶ and strived to explain all other human rights from the perspective of the right to subsistence. He analyzed and pointed out that the right to subsistence has life as its natural form; property as the material condition for its realization; labor as the general means for its realization; social security as its means of relief, development as its necessary requirement; the environment, health, and peace as its contemporary content; and the transformation of state functions as its guarantee. He further considered the rights to life, dignity, property, labor, social security, development, education, freedom, the environment, health, peace and others as expressions and content of the right to subsistence.⁷⁷

 

Professor Yang Geng is also in favor of having the right to subsistence being the most fundamental right, but makes a different genealogical analysis. According to him, there are four fundamental human rights: the right to subsistence, to development, to equality, and to freedom. The relationship among them is that the former right is the basis for the latter right in the series, and the latter develops on the basis of the former. Defined in terms of the intrinsic links of human rights, the primary human rights are the right to subsistence and the right to development, which are the most fundamental rights; the right to equality and the right to freedom are based on and sublimated from the first two rights.⁷⁸

 

It is necessary to point out that this analysis takes the right to subsistence as the logical starting point for all other human rights. However, as Professor Ma Ling pointed out, we need to distinguish between subsistence and the right to subsistence, “Subsistence is a state and a fact, while the right to subsistence is a right. Subsistence is to be alive, and the right to subsistence is the right to be alive. The fact that a person is alive does not mean that his right to subsistence is fulfilled, and subsisting does not mean having the right to subsistence.”⁷⁹ Yang Xin further analyzed on this basis,  stating, “The foundational status of subsistence is expressed in the natural existence of a human, where there is no existence of a human without subsistence. However,  in the real world, the complexity of social relations determines the complexity of the  nature of the humans. A human is not only a natural person, but also a person existing in social relations. Like the former, the latter is the essential provision of human existence. As a result, in the real practice of human rights protection, it is inappropriate to place too much emphasis on the predominance of the right to subsistence, which is contrary to the essential nature of a human as a social being. However, due to the specific socioeconomic conditions of different countries, the priority given to the right to subsistence in a given country at a given historical stage is also a more reasonable strategic arrangement based on reality. But the right to subsistence is only a foundational right, and never the end.”⁸⁰

 

On the other hand, there is an analysis of the structure of human rights with the right to freedom as a purposive right. Professor Qi Yanping applied the method of structural analysis to analyses the content genealogy of human rights. He argues that, in the logical structure of human rights, there are five themes of rights featuring a deep historical basis and a strong practical need. They are interlinked and interconditional, in a logical relationship of interconnection of them as ends and means. Among them, “the right to freedom is the fundamental purpose of human rights protection; the right to equality provides the institutional framework for human rights protection; the right to property is the material basis for the realization of human rights; the right to subsistence provides the bottom-line conditions for human rights protection; and the right to development represents the trend and direction of human rights development.”⁸¹

 

However, the theoretical basis behind regarding the right to freedom as the fundamental purpose of human rights protection and taking the right to development as the trend and direction of human rights development needs to be further questioned. In relation to human development, freedom is only a means to an end; it is a condition for achieving human development, not an end in itself.

 

 

The research group reinterprets the structure of human rights on the basis of taking the free, comprehensive, and harmonious development of all human beings as the ultimate aim of human rights.

 

In order to construct the structure of human rights, it is first needed to distinguish between two categories of human rights, namely, the purposive and the supportive ones. Purposive human rights relate to the ultimate purpose and fundamental values that human rights should achieve, while supportive human rights involve the conditions that must be guaranteed in order to achieve the purposive human rights. The ultimate purposive human rights are the “stabilizing force” of the human rights system and the guide to the relationships among human rights. As mentioned earlier, the ultimate purposive right is seen as freedom by the liberal theory of human rights; as the right to subsistence by the survivalist theory of human rights; as the right to human development by the developmental theory of human rights which considers the free and comprehensive and harmonious development of all humans as the ultimate purpose of the realization of all human rights.

 

By the natures of the rights, purposive rights are the values and purposes to which all human rights are directed, and are subsequently more principled. As the core of all other human rights, they govern, coordinate, and integrate the human rights system. They are the basis for reconciling conflicts among human rights, and the ultimate test of the realization of all human rights. Meanwhile, a variety of supporting rights are needed in order to realize the right to human development as a purposive right.

 

Different from purposive rights, supporting rights feature clearer content provisions and more specific requirements for obligations. Among various human rights that have now been proposed, we can find four categories of supporting rights.

 

The first are the foundational rights represented by the right to subsistence. They guarantee the basic conditions of subsistence of every member of society. They are a prerequisite for the existence of the subject of the realization of the right to human development. The right to subsistence as a foundational right is a bundle of rights that includes, but is not limited to, the right to life, the right to a basic standard of living, the right to basic public health services, the right to medical treatment, the right to social security, the right to a healthy living environment, the right to peace and security, among others.

 

The second are the instrumental rights represented by the right to participation. They guarantee that everyone can participate in all areas of life and development in the economic, political, social and cultural areas, in which human development is achieved through participation in social development. The right to participation includes, but is not limited to, the right to participation in economic life, such as the right to work, the right to property, and others; the right to participation in political life, such as the right to electing and to being elected, the right to holding public office, the right to monitoring, and others; the right to participation in social life, such as the right to education, the right to association, and others; and the right to participation in cultural life, such as the right to culture, the right to intellectual property, and others.

 

Then, there are subjective rights represented by the right to freedom. They prevent arbitrary infringements of individual freedoms and provides the subjective prerequisites for the realization of the right to human development. They include, but are not limited to, the right to a legal personality, the right to personal freedom, the right to freely access and communicate information, the right to freedom of thought, opinion, and belief, the right to freedom of expression, the right to freedom of movement, the right to freedom of marriage, the right to privacy, among others.
 

Finally, there are the binding rights represented by the right to equality. They require equality of rights for all categories of subjects, prompt and effective remedies for those with infringed rights, and special protection for vulnerable groups in society. They include, but is not limited to, the right to equality before the law, the right to non-discrimination, the right to a fair trial, the right to being free from abuse, the right to being free from slavery, and the right to special protection for women, children, older persons, persons with disabilities, and linguistic and cultural minorities, among others.

 

 

By considering the right to human development as the purposive right in the structure of human rights, with the rights to subsistence, to participation, to freedom, and to equality as the four categories of supporting rights, it can give a developmental interpretation of the structure of human rights, as shown in Figure 1.

 

 

The above structure shows that the right to human development as a purposive right is the ultimate purpose of guaranteeing all other human rights. And to realize the right to human development, we need to fully guarantee the right to subsistence as a foundational right and the right to participation as an instrumental right. Meanwhile, the participation to be guaranteed by the right to participation as an instrumental right should not only be full participation, but must also be free and equal participation, so that we can achieve free, comprehensive, and harmonious development of all.
 

On one hand, the developmental theory of the structure of human rights makes explicit the interdependence and mutual checks among various categories of human rights. In terms of the interrelationship of various categories of human rights, the developmental theory of the structure of human rights shows that the realization of the right to human development depends on the right to subsistence to lay the foundation and on the right to participation to provide the pathway. Besides, the realization of the right to subsistence and the right to participation has the realization of the right to human development as its aim and test standards. Meanwhile, the guarantee of the right to participation must be subject to the right to freedom as a subjective condition and the right to equality as a binding condition, while the right to freedom and the right to equality are necessary requirements and means of guaranteeing the free, comprehensive, and harmonious development of all through their autonomous and equal participation in all areas of development. On the other hand, the developmental theory of the structure of human rights also leaves room for the enrichment of the various categories of human rights as they evolve over eras. The rights to subsistence, to participation, to freedom and to equality are not single rights, but a “bundle” of rights of the same kind. The content of each type of bundle of rights will show corresponding changes as the era develops and as inter-subjective needs are enriched.
 

The developmental theory of the structure of relationships among human rights helps to explain and foresee the process and trends in the development of the human rights undertaking in China. The building of a moderately prosperous society on all fronts has marked a new stage in the development of the human rights undertaking in China, laying a solid foundation and favorable conditions for the free, comprehensive, and harmonious development of all. On the one hand, it has substantially raised the protection of the Chinese people’s right to subsistence and laid a solid foundation for the realization of the right to development. On the other hand, it has vigorously reformed the institutional and systemic barriers that prevent members of society from free, full, and equal participation in social life, providing strong institutional guarantees for the realization of the right to participation and creating favorable conditions for the free, comprehensive, and harmonious development of all members of society. The building of a moderately prosperous society on all fronts is only a necessary stage in the development of the human rights undertaking in China. It is not the end of human rights development, but a new starting point. Standing at a new starting line in the development of the human rights undertaking in China, it is necessary to formulate a new human rights development strategy in accordance with the new historical conditions and the new needs of members of society of the new period in terms of human rights protection. On the one hand, we must continue to consolidate and improve protection of the right to subsistence and consolidate the economic basis for the realization of the right to human development. On the other hand, more attention should be paid to the guarantee of the right to participation, so as to more effectively achieve the free, comprehensive, and harmonious development of all members of society by raising protection of the right to participation in all areas.

 

The developmental theory of human rights is still in its early stage, with its content to be enriched and its arguments to be constantly refined. However, judging from the theoretical explanatory power it has already demonstrated, it should have a promising future and growing theoretical competitiveness.

 

(Translated by NIU Huizi & PAN Yingzhao) 

 

 

* This paper is a simplified version of the research report of “New Developments of the Theory and Practice  of Socialist Theory of Human Rights with Chinese Characteristics since the 18th National Congress of the  Communist Party of China” of the Marxist Theory Research and Construction Project “Research on Several  Major Basic Theories of Human Rights”. Leader of the research group and author of this paper: CHANG Jian ( 常健 ), Director of the Human Rights Research Center at Nankai University (National Human Rights Education and Training Base), Professor of Zhou Enlai School of Government, Nankai University. 

 

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3. Ibid.

 

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5. the National Bureau of Statistics. “Statistical Communique of the People’s Republic of China on National  Economic and Social Development 2019.”

 

6. Ibid.

 

7. Ibid. 

 

8. Ibid.

 

9. Ibid.

 

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67. Ibid., 181-182.

 

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77. Ibid., 46-48.

 

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