ISSN 2286-4822 www.euacademic.org EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6/ September 2014 Impact Factor: 3.1 (UIF) DRJI Value: 5.9 (B+) Human Rights: Are They Just a Tweak for the Policy Makers or Administrators? KIYOUNG KIM Professor of Law and Public Policy College of Law, Chosun University, ROK Abstract: The human rights often are cited as an ultimate goal for the discipline of social science. It guides the UN in the pursuit of its organizational mission, and the civil democratic government generally endorses this paradigm of state rule as supreme. Nonetheless, it seems a mishap if the human rights are thought to be valued only in the courtroom or police office. They are the kind of ubiquitous concept that we could share and must share, who would be the scientists in ideological pursuit, the policy makers and administrators in state engineering, and even the business enterprises in the emerging influence. It is typically regrettable if the human rights are not one of foremost concern, but a penumbra from the callous public officers while the human rights allow them to stand fundamentally. They comprise the magic code they are required to respect than any other priority, and also provide the basis of ethics on which the administrators deliberate. The paper attempts to deal with the theme of human rights, and delineates the elements of them with the aid of history and philosophy as well as comparative summary if adequate. Then the author leads the discussion to any new perspective or suggestion in the face of modern administrative state and social progress. Key words: human rights, public policy, administrative state, positive liberty, negative liberty, liberalism, libertarianism, generations of human right, UN Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7761 Human Rights in the Preview What are human rights? How do we conceive them? We often hear of human rights and their social consequence in various aspect and levels, but we may become less definite what the words precisely denote. Someone may say the human rights are the kind of list in the bill of rights pronounced in the Constitution. Others may illustrate a political control or suppression against the free speech or press in China or North Korea. They, however, often have lacked an awareness if the African states' children are starved and deprived of some of minimal standard to human livings. They also would become less attended that the middle Asian states have a unique culture to abridge the equal right of different sexes for the very reason that they have a religious justification for a different treatment. In the yardstick of western human rights group, their standard or practices would be inconceivable. In this impasse, a legal pluralism would probably be only way to understand their social dynamism. Therefore, the concept of human rights would have no clear cut to define in the aim of universal comprehension, but would be circumstantial and depends on the purpose of users. This leads to six or more families which are considered to describe the concept in most of influence through the history or political diversities (Hunt, L., 2008; SEP: Human Rights, 2013). Asked to give a summary form of definition, the human right is the scope of desired status of humans or some groups to be protected legally or by ways of the high extent of social force which often is deemed fundamental and essential to get along in any of human dignity. As they are fundamental and essential, they are high-priority norms as M. Cranston stated (2013). In this definition, we can derive attributes to entitle the concept as something of human rights. Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7762 A Right: Human Rights as Static First, it is the right, not any of moral command or religious adherence to worship, which is viewed fundamental and essential (2013). Hence, the concept is presumed that the entitlement of human rights enable to claim the holders to pursue a legal protection, and through the vehicle of special institution. The ways to ensure them as a right may vary to cover a legislative enactment, judicial decision, or custom, but eventually leading to being part of the actual human moralities (Maccallum, G.C. , 1993). The statutory rights, in this ambit, are not human rights since they are neither fundamental nor essential. The right to tort damages, claims in many types of civil action, or administrative relief of industries against the foreign dumping practices would not be covered on this ground in view of the human rights concept. The human rights, therefore, often involve the kind of sensibilities found in the words, like sublime, idealistic, inviolable, or inalienable as we recourse the vintage of classic notion. The preamble of US constitution, the article 10th of Korean constitution, Declaration of Universal Rights in 18th France, and many new born constitutions in the 20th century confirmed this approach utilizing the dealings as the heart of national administration. Since it is the right as a conceptual dealing, we need to investigate how they are realized in any of specific ways to enforce. Now most of nations have instituted the constitutional proceedings to review a violation of human rights by way of statutory provision like in Korea and Germany and by the case law as in US. In the United States, Marbury v. Madison pioneered to legitimate a constitutional review of the federal or state laws under the "case or controversy" requirement. It is the right to protect an individual, but the group may be triggered as in the human rights consideration. For example, females would come into play concerning the domestic violence, reproductive choice, and trafficking of women and Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7763 girls for sex work, assistance and care during pregnancy and childbearing, custody issues in the case of children, and the loss of historic territories by indigenous peoples (SEP: Human Rights, 2013). Emergence as a Protesting Concept The constitutions as a matter of concern often rise in the context of national politics. The classic idea enshrined in the human rights is quite protesting in nature against the power of monarchy or from the fear of mob dictatorship. The constitutional drafters of US notably went that way that they saw the institution of human rights herald their first priority. It is rebellious idea and virtue to question the dominant governmental power. Therefore, the human rights concept is crucially intertwined with the assumption of higher law, national constitutionalism, political democracy and presupposes some of political community. Then it may be connoted in the purview of justified political morality and to identify a preexisting moral consensus. The concept of international constitutionalism had surfaced at the moment of UN inauguration and bitter reflection of the past two world wars. In our characteristics as a right, the international constitutionalism would not be tight unlike the domestic context of constitutional review, but we can witness notable achievements about civil or political rights and economic, cultural and social rights (2013). The regional organizations, Africa, Europe, and South America, also have been proactive in this area of concern (2013).Their extent of engagement would not be ensured by the judicial enforcement or concrete decree, but they are empowered to monitor, propose, and recommend. One cause for the action of UN security council, which would be a unique organ to enforce the mission of UN by a compulsory measure, arises from the violation of human rights. In this point of view, the international constitutionalism is not merely Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7764 a paper tiger but could be supported by sanction or other forcible means. Human rights, as said, emerged as the ethos of protest against the abuse of governmental power. They had been, in the history and tradition, achieved in a revolutionary way and conceded in complicity with the higher law concept as advocated by the ancient common law lawyers, Sir. Coke and Blackstone (Hunt, L., 2008). Two notable incidents are the French and American revolution against then monarchy and exploitation. A British progress undertook a modest nature of evolution centering at the parliamentary system. A comparative view also shows this distinction that the Great Britain still has no written constitution besides the human right statutes while France respected the universal declaration of human rights as their essence of constitution. Other critical event as a protestant ethos of human rights perhaps would be the foundation of new world regime by inaugurating UN. An intolerable abuse of human rights in the two world wars and depraving cruelty, inhumane debase of human dignity drove to envisage some of international constitutionalism (Hicks, D., 2013). UN made several steps to realize that errand as mentioned above in terms of two classes of human rights respectively in 1948 and 1966. Therefore, the emergence of human rights often involves a shame status of politics and basic human dignity. They could be viewed in aspects not to be transhistorical, but minimal, or at least modest standards as Henry Shue pointed out (SEP: Human Rights, 2013). They usually do not include a splendor of policy package, but could well tilt on the metaphor, for example, "how this can be tolerated as in the case of recent Syria?" Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7765 Static, but Dynamic into an Extension of Application and Scope Since it conceptually differs from the moral or religious command, the nature of right deserves more points of review about its legal status. The human rights are a public law concept which deals with the state and an individual. How to circumscribe the scope of individuals in terms of the entitlements or privileges also comes as a matter of constitutional interpretation. Is it to denote "people" as in the case of 18th French declaration or "US citizen" encoded in many provisions of US Constitution? Are foreigners a beneficiary of constitutional shield in the issue of equal protection of laws? Korean constitutional court takes a view in general purview that the right to public office or election is limited to the Korean citizens. That is not the case when they face with an infringement of foreigners' privacy right. The concept, then, is deemed a pillar to support the rule of law ideals against the abuse of state power. If the US Constitution has the nature of dual sovereignty between the federal and state governments, who is the addressee of constitutional dictate to protect the human rights also arises as a constitutional issue. The first ten illustration of bill of rights triggered the federal government, however, it could not reach the ambit of state sphere. This lacking, as we know, contributes to the contentious split of nation in the mid of 19th century, and caused the civil war. The thirteenth and fourteenth amendments, and others were designed to cure this flaw that the mandate prescribed in these amendments was made imposed on the state power. By way of incorporation, the due process requirements, say, the privileges and immunities clause, could not be interfered by the state government. The contemporary problems about the constitution and human rights extend our deliberation on its nature. It contains, as we plainly encounter, many of sublime ideals to merit the extension possibilities as a guide or in a principled Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7766 way (Reichert, E., 2006). In prolegomenon through its current status, it must be public and limited to react against the abuse of governmental power. Hence, they are not ordinary moral norms applying mainly to interpersonal conduct. On the other hand, the social evolution and increase of economic capacity allowed a new assessment or perspective how the constitutional affords could be received. It actually provides the moral standards which possess a universal appeal (2011; Donnelly, J., 2013). Furthermore, the classic liberalist view to check and balance as well as to limit the governmental power does not exactly fit within the contemporary passion. We often no longer need to be thrilled at any of tyranny or dictatorship unlike the circumstances of mightier Kings or revolutionary contingency. The practical problems had shown its extension of application that the private nature of contract might be invalidated from the human rights consideration. For example, is the private contract void if it includes a discriminatory clause against the minority? If answered no, how the response would change provided that the contract was enforced in the lower court, and appealed to the superior court? In the latter, the context may transform into a public matter since the lower court enforced such discriminatory contract for the black people. The court now can find an avenue to apply the constitution. Of course the ways or extent of discrimination should be weighed in given that it is private nature of relationship and submissive to the party autonomy. The case actually debated in the courtroom included a shocking arrangement to disable an access to some of residential zoning entirely by the rental agreement. In multiple factors of consideration, the courts now find a violation of human rights within the private sphere by applying the state action theory. This implies that the contemporary constitutions may be the kind of moral document in a limited context, allowing to meddle into some of private dealings beyond the rule of law concept. Therefore, it exists as moral and/or legal rights conceptually. Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7767 On this strand, it is interesting to see T. Pogge's view that we can generate individual duties from human rights (SEP: Human Rights, 2013). Dynamism in a Conceptual Understanding The initial phase of human rights henceforth evolved in progress to address the circumstantial needs and shape a new understanding of this concept. This means that it is dynamic to interact with the wake of history (Donnelly, J., 2013). Its quest to place it as the supreme status of national attention came from the bottom line, but had been conceded with the democratic rule in interplay and development. The government now accepted it as a first priority to respond that the negative cognizance of human rights turned to underlie the state duty to protect. Now the tone, "the government should not interfere with the freedom of individual," changed that "the government has a constitutional duty to design and implement an adequate institution or policy to prevent the crimes." The constitutional document would less be for a check and balance scheme, but could be a positive ground that the public administrators may recourse to base their policy choice or implementation. In this context, the human rights are not static that can be invoked only in the case of infringement or in the purpose to remedy the evils or harms. Given the passive quality of judiciary, however, this aspect of dynamism would range in a limited ambit that only can be addressed by the political branches, the US Congress or Executive (Maccallum, G.C., 1993). The separation of powers principle then factors circumscribing the span of constitutional dynamism. The court has no authority and resources to command positively to realize the constitutional virtues. The aspect of dynamism, as said and not perfect though, would differ if the court strives to connect a nexus in the purpose to apply the constitutional mandates to the powerful private entities. In the state action theory, the court Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7768 tends on the modest stance in progressivism while it comes restrictively if the issue goes to the structure and function of government. The concept should be dynamic in its very aspect of human dignity (Hicks, D., 2013). The notion generally depends on the circumstances and status of society. A desired status of human condition would not be the same as centuries ago although the extent is not on a speedier turns like decades or years. A rapid transformation of society from the technological advancement, notably on the aspect of informative society, may shorten its turns. In any case, the desired human status may be conceptualized in responding to the evolution of society. This context can be evidenced from the generations of human right, i.e., first generation, second generation, and third generation. The waves of this new formulation may correspond with the political history, say, feudal, liberal paradigm of industrialization, and post-modern context of our livings. The feudal governance and social structure incur a serious injustice for the rising class. Their quest to restructure the system was collected into the bill of rights which reflected the fair share of new wealthier class. They then quested to freely express their idea, freely assemble to organize their political voice, and to be ensured of the property right and freedom of contract as well as personal liberty against the unlawful search and seizure, and so on. The second generation of human rights purported to react against the wrongs or social dilemma from the liberal capitalism. Now the human dignity became only to be restored by ways of social right concept (Hicks, D., 2013; Reichert, E., 2006). The right to labor, mandatory labor standard, right to the social benefit, and the kind of collective response were deemed ways to ensure the desired status of human condition. A predominant scope of them would cover the economic justice. The third generation of human rights advanced to ensure a decent living or human condition in this complex and challenging society. Then the class of rights requires a recognition and awareness as well as Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7769 constitutional protection, which encompasses the right to decent housing, right to education, and right to the pleasant environment, and others. On this point of dynamism involving the human rights concept, we also can note the attitude of concept and current practices, which span over the concern of human rights inflation, God-given natural rights, specific and problem-oriented ways of approach, feasibility to administer, too little or too much of international documents on human rights (SEP: Human Rights, 2013). Differences and Similarities among the Human Rights Civil or Political Rights in the Comparative Viewpoint In a major classification, we have two groups of human rights which include civil or political rights and social rights. The civil or political rights are classic and an antedated group of rights which often are considered foundational through the democratic governance and modern constitutionalism. The attributes of these rights, among others, are (i) their competing virtue against a monarchy or dictatorship, (ii) principally driven to limit the governmental power (iii) negative rights from the abuse of governmental power (iv) to serve the new wealthier class of society (v) to champion the human dignity, autonomy and democratic virtues. Hence, the typology of this first generation of human rights actually has led the world political history to transform the feudal mode of rule to the modern form of Republicanism and democracy. The scope of rights are typical as we often encounter through the modern constitutions and international norms, which span over a writ system against the personhood, freedom of expression, and free exercise of religion, freedom to travel, economic freedom including the sanctity of property right and freedom of contract, equal protection of laws, right to privacy, and others (SEP: Human Rights, 2013). These rights are typically placed in the bill of rights, notably in the State of Virginia and US constitution. A principled spirit Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7770 enshrined in this set of rights are eminently pronounced in the preamble of US constitution or other classic declaration with such beautiful words, like inalienable, inviolable, god-bestowed, and etc. They projected the concept of classic liberty interest and often are considered to include the strands of natural rights. The rights in this group actually worked as a revolutionary thesis that should be achieved, and had been incorporated into the liberal constitutionalism. They are constitutional rights which deserve a special status as a matter of law. Plainly, they could not be repealed or negated by a mere majority of Congress or state legislature. A weightier process of constitutional amendment only could modify or abolish the ideas and requirements. In an in-depth theory, some of modern constitutional scholars argue that the fundamental liberty interest and human dignity could not be derogated even by the constitutional amendment (Hicks, D., 2013). They are the ground in most probabilities to conduct the constitutional review against a suspicious act or statute. Therefore, it has a root nexus with the idea of higher law or hierarchy tenet across a type of norms in order, constitution, statute or treaty, and executive orders. The federal system complicated this structure from the federal laws down through the state laws and in ranks across a type of norms. Practically, the judiciary had performed much role to protect the civil or political rights, nonetheless, it is a prevailing view across the jurisdictions that the rights in this kind are a guideline for all three branches of government to act and comply with. They could only entertain their power and authority under the sanctity of these human rights (2013). The concept, in this stand point of view, would relate with the separation of powers principle and tenet of limited government. The rights are enforceable as a technical matter of law concretely in the courtroom while the social rights are merely declarative or the kind of policy package the nation has to endeavor on programs or as a vision (SEP: Human Rights, Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7771 2013). The rights are not goal-like one nor any moral standard, but can well be framed as a cause of action in a specific litigation. We often experience news stories which arise from the human rights controversy. For example, the accused in the criminal proceedings may argue on a validity of death penalty statute on the ground of Eighth Amendment. White male students may argue on a violation of admission policy practiced in the public university provided if the policy infringes with his constitutional right of equal protection of laws by an unreasonable and affirmative treatment for minority groups. They share similarities that they are rights of public law. This means that the holders of these rights could claim against the state or federal government, and in theory or principle, could not intervene into the interpersonal affairs. This attribute may be revised in a social perception as we see in the state action theory. For the civil or political rights, we now consider that potential violators should not be confined to the government or public entity, but can, in a limited ambit and under the legal coherence in scheme, expand to some of powerful private enterprises or other organizations. For example, a discriminatory policy in the large shopping malls may impact on the society in the similar extent of influence. Then the shopping malls may properly be viewed, in the purpose of constitutional application, as something like the state in their function or activities. This constructive logic, then, enables that the human rights can be applied to the private entities. Of course, the social rights would be less friendly with the concept of application extension as a matter of nature. Social Rights in the Comparative Viewpoint Other group of human rights would be called social rights, which possess the nature and quality as distinct from the first generation of civil or political rights. The paradigm would have a different basis where each concept respectively corresponds Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7772 with the liberal statism and social welfarism. The social rights would differ in notion and attributes, which are (i) positive rights to claim an intervention and social programming of government (ii) cherishing a more focus on the social justice than a liberty interest, (iii) of collective and social nature for the common prosperity (iv) principally driven to expand the governmental roles (v) to serve a socially vulnerable class such as the working class, consumers, and post-modern context of individual realities. The class of rights would spread from the right to labor, humanly labor standard, right to the collective action, right to the basic education, right to the pleasant environment or decent housing, etc. In view of its practical operation, one illustration would serve as charted from the news paper stories. An issue of the child or prison labor would rise to the global attention. It is concerned of the labor standard, and hence entails a social right controversy. It also comes into play as one of international constitutionalism while the underdeveloped countries often perpetrate the kind of inhumane violation. As T. Talbott stated, however, we may see the issue likely as some of structuralist perspective and turn it within a possibly distinct context of compassion, culture, economic capacity of nation, and etc. (2013). Therefore, an argument would be unwise if to compel a universal standard of labor as enforced by the developed countries. The problem also relates with the international trade issue which involves the WTO and ILO. The social rights have emerged to restore from a fundamental injustice and gross disparity which a laissez faire system of capitalist economy had brought in the 20th century. Therefore, we often call them as a second generation of human rights which is in contrast with the 18-19th prevalence on the civil or political rights. The idea of social rights was officially recognized in the adoption of 1949 Bonn constitution, and many new born states after two world wars have imported that way of dealings in shaping their national framework. It later developed in the context of Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7773 international constitutionalism in the leadership and initiative of United Nations. So we have two significant achievements to encompass both sphere of human rights, what are known the Universal Declaration of Human Rights (United Nations, 1948b) and International Convention on Economic, Cultural and Social Rights (United Nations, 1966). A constitutional status of social rights would differ in US, so that they had not been entitled to the place of written constitution and pursued in the leverage of US Congress and Executive (Maccallum, G.C., 1993). Notably, new deal programs ambitiously elaborated to rescue the national economy and promote social rights were framed within the series of federal statute. Some critiques would also raise a suspicion about its status as a right since they could not be claimed in the courtroom. Other reason to question its status lies in the tremendous expense and financial burden that make them at least be programmatic or package of idealistic state vision. A counter argument would point the similarities of both groups on this point as we see a positive aspect of state engagement in instituting a criminal justice system, costly public measure to ensure a liberty interest, and so. A Summary of Comparison From a foregoing brief on two groups of rights, we can illuminate a summary in view of the similarities and differences. First, it is similar that they concern human rights the standard of which centralizes on the concept of human dignity. Therefore, they are dynamic and evolutionary to respond with various factors, to say few, a political concept of society, circumstances and intellectual leverage of society (Donnelly, J., 2013). Therefore, the human rights student needs to see its attribute of dynamism and static aspect across the global jurisdictions. As a representative example in this concern, it is noteworthy that the constitution explicitly provides a concept of Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7774 "unenumerated" rights. The rights set forth in the constitution are just illustrative that the policy makers can exercise their wisdom to define each specific human right. The right to privacy has had no language in the constitutional text, but a product of judicial wisdom. The right to die, right to know, and many others had been shaped and endorsed on this ground by the pertinent authority. Second, both enjoy a constitutional status except for few cases that could not be tarnished from the normal political power. In reverse, the governmental power is required to respect the spirit and command arising from the human rights purpose. A universal and regional covenant also confirms its status as fundamental and essential although the enforcement context would come meeker unlike the national dealings. Third, the idea of human rights presupposes a political community, and generally corresponds with, then, prevailing political virtue. Our dualism of human rights classification corroborates with this assumption. A liberal capitalism and social welfarism had driven to realize the two groups of human rights. Fourth, as a matter of definition and practical operation of those rights, there could we note a plethora of differences as described above. A Comparative Understanding of Liberalism and Libertarianism The Main Profile of Two Thoughts Liberalism and Libertarianism are close concepts, but distinguished in the basis and its present effect on the community. A libertarianism begins with the self fullownership and penetrate the kind of property or physics origin of metaphor through the discourse (SEP: Libertarianism, 2013). It provides the ways to understand a personal autonomy, and its relations Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7775 with the community and governance. Its contemporary evolution would be less extensive and took the nature of countervailing theme against the paradigm of welfare state or egalitarian liberalism. It tends to seek some of strengthened or defensive logic concerning a lesser intervention, more enhanced conception of personal autonomy from the social justice, as well as an emphasis on distinction between the society and polity or government. Hence, the ideas of libertarian adherents may go into an anarchy or requires a stern justification about the intervention, any scheme of administration on justice or new community ideals. Its tradition, in due course, can be traced back to Lockean ideas and its contemporary leading theorist would be Nozick (2013; R. Nozick, 1977). A liberalism would begin to perceive one as an agent more than the libertarianism that it spans widely thorough the human nature and interaction within the polity or political community (SEP: Liberalism, 2013). This ideal generally is considered to play a foundational role in the evolution of western democracy through 18 and 19th centuries in UK and US. Its origin should get more extended, but its significance as an ideal was framed in the moment as a new social idea in the 16-19th century western community. It is the kind of rebellious understanding from the prevailing purview of those times from the feudal subjectivity and later a divinity of monarch. One or agent is not autonomous or self-willed to be liberal, and current form of freedom or liberty would only be attributed to the limited scope of people. This perception had broken at first with the struggle between the King, a representation of new nationalism in Europe and Pope, and resolved in the Westphalia peace regime. A next phase would be the contention between the wealthier class and ancien regime as represented by the feudal system and monarchy. In this phase, the contractarian theory offered the ground to liberalize the class of commercial merchants, industrialists, and local agrarians, and other class of bourgeois. It reshaped a dominant version of Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7776 nobility, divinity and feudal ethics into a new paradigm and ways of understanding. Hobbes, Locke and Rousseau are considered as leading three originators of this ideal, who had, nonetheless, subtle differences in proposing their social contract in theory and basics (2013). From this social contract frame, a limited government could be enabled and the abuse of power may be checked or kept in balance in its structure and function. That means that the people turned to become qualified to enjoy their inalienable rights, such as rights to life and liberty as well as property right. The divinity of monarch was said of illusion to be replaced by a new hypothesis of social contract while Hobbes did not advance to this extent. The ideal of liberalism made a profound impact on the basic structure of democratic rule in the late of 18th , notably on the constitutionalism in US and universalism of human rights in France. This ideal, philosophically enriched by the work of JS. Mills, served as a dominant perspective to rule the conquered lands and countries by the British power in the Victorian age. From the idea of J.S. Mills on liberty, we can learn much of human condition, the duty and responsibility of agent, ethics, and ways of interplay to implant or inculcate himself and neighbors (J.S. Mill, 2002). In his conception, therefore, the liberty is not restrictive to the negative concept from coercion or compulsion. Beyond this basic liberty, he evangelized many intrinsic in his philosophical deliberation to substantiate the views of liberty or liberalism to bridge toward the positive concept of liberty. For example, he saw that the context of individual to grow and learn is essential to ensure the liberalism. He also distinguished the doctrine of free trade from the principle of individual liberty, and taught that the justification of personal and economic liberty was distinct (2002). He diversified the true nature of one or agent, and enabled to explicate the unraveled dimension of humanity if just philosophically or as unsupported by the contemporary science on humanity or psychology. Mill's perfectionism and his Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7777 conception about the two ways of pleasure, hedonic and higher ones has likely echoed in consonance with the modern views on the Maslow's hierarchy of human needs. He is also available in contrast with the Marxism provided that Marx is purely mercantile and economic in viewing the society on its basics. Millian concept might be received as a false consciousness from the communist adherents in one way, and may bring a structural distaste for the scholars of colonial experience. In his words, we can read, "Despotism is a legitimate form of government in dealing with barbarians, provided the end be their improvement..." (SEP: Liberalism, 2013). This view yet would likely be disfavored by Koreans in the context of Japanese imperial rule or US in the context of British rule. I consider, however, his idea is pioneering to flourish a reasonable pluralism and also interesting as if he whispered the Victorian glory of larger opportunities and ample space to fill the civilization errand in the ruled lands. That comes, for example, by mentioning about developing individuality and cultivating capacities. He therefore saw the barbarians not be qualified to entertain a genuine nature of liberty, but could be improved by ways of contact and interaction, which would likely be a Darwinian understanding of our nature (J.S. Mill, 2002). Then the views from the group of distaste likely said that they become as equal to be civilized but in the limits of British hierarchy and convenience of imperialistic rule. I am not sure if Marx, who might be a close peer as a matter of time with Mill, had that point, but Marxist view may overstate the role and capacity of working class to reject the idea of evolutionism. This hypothetical bridge would not be incorrect if we institutionalized a tripartite convention among the labor, capital and government in Korea and Northern European states. One other attribute in these times would likely be the experimental journey of new democratic rule unlike the Victorian system of world governance. The governments in the Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7778 new continent around the mid of 19th century had been aching to settle their system of rule and contested points about the democratic virtue and desires. Notably, the civil war and women's right to suffrage were lodged to contend and evolved. This means any vulnerabilities and weaknesses in terms of the public policy and administration around the times. As J.A. Hobson phrased, the elected officials now are true representatives of the community in competence, capacity and ethics than a mere defender of their wealth as formerly stigmatized (2013). The concept of social justice and ethics of bureaucrats began to maturate if we are in the D.G Richie's, "genuinely the government of the people and by the people themselves" (2013). This growth of government against the market or wealthier class rule would perhaps notably break into the New Deals around 1930's and the social welfare or justice concept tend to come into some of primacy for the public administrators. A subtlety can be raised between the views of John Rawls and the paradigm of welfare state, and that the term, "egalitarian liberalism" may more properly investigate the current context of humanity, social justice and ethics of administrators. While the welfare thesis highly tilted on any economic discourse, the egalitarian liberalism is prone to see the people and their social justice in some depth of philosophical justification as in Mill's case against the pure market theorists (Laureate Education Inc., 2013). Interestingly, a point developed into the classical idea of Plato and his disciples about the function and role of individual in the community and the kind enabling concept between the deprived nations and affluent ones. A substantive justice or positive liberty would surge in the threshold to practice the liberalism as a matter of polity. For example, Ely asserted a social justice and positive liberty for the working class which replicated the ideas of post-modern constitutionalism about an enabling concept of rights on the labor and social welfare benefits. Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7779 A Summary on Two Thoughts Then, the liberalism may be classified on several of its basics as (i) thoroughgoing methodological individualism (ii) individualistic postulate' against all forms of 'organicism', (iii) expansion of an abstract conception of individual selves as pure choosers and ingratification of ideas on the cultural membership and other non-chosen attachments and commitments (iv) aims at development on a decent hierarchical society (v) horizon to explore the social cooperative structure and justice (2013). Interestingly, Mill adverted on the virtue of non-intervention on the non-liberal states which raises an ambiguities how this proposition could apply to non-British subjects or other powers at his time and contemporaries. For example, a previous illustration about Syria comes to be tested in his thesis. Also we can illustrate other ramifications of liberalism such as public reason liberalism and radical pacifism, which would adaptively propose to respond to the circumstances and demand of environment. For example, Republican liberalism could be epitomized in its new ways about the failure of free market structure globally, and economic in its vast aspect of proposition and arguments. Libertarianism, as above introduced, could be viewed in a protesting thesis against the imprudence of social justice or dominant ethics they consider thematically unproved or overgeneralized. Hence, they question the prevailing ideas of contemporary society from a rule consequentialism and teleology or rule cotractarianism. The impression would likely be the context of Scooridge who churns on the legitimacy and justification of social justice or established course of governmental ethics. They may constantly raise a suspicion and demand any plausible ground to legitimate the actions and programs by the justice-promoting organizations. Nonetheless, they have a cause and rationale that the public administrators should not disregard. Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7780 Two Thoughts and Ethics Ethics, in Aristotelian preaching, was viewed for phasing out of virtuous agent in impression and a paragon to reach the idealistic dimension of mean state (Stanford Encyclopedia of Philosophy: Aristotle's Ethics, 2013). Aristotle showed a contrast within three other characteristics, say, contient, incontinent, and evil. A good person chooses to act virtuously, and transcends the knowledgeable, yet inactive person without a public outreach for justice. Kalon, a Greek word in English meaning "beautiful," "noble," or "fine", would be an ideal that the kind of person pursues (2013). This character of agents or person perhaps would be a best lived life on knowledge and understanding as coupled with the second mode, a devotion to politics. For the public administrators or students on the course of journey, I suppose that the ideals of liberalism would be a central point to tackle with to contest the virtue of administration every constantly. In this nexus, the ethics can come into an interplay, and libertarianism also would be an approach of neighbors which advises to communicate for and construct the system into a meaning (Laureate Education Inc., 2013). A Concluding Remark: State Administration and Social Progress I may, in addition, deliver two points which concern a dynamic nature of human rights or constitutionalism. As T. Talbott expounded, the human rights issue would be fairly nationalistic, and reflects a specific culture or compassion that entails the kind of structural issues as less susceptible of any universalistic generalization (2013). This idea has a root ground from the ancient thoughts and primordial intuition of communal primacy. This view is less done on the ages of enlightenment or human attributes that can be shared, which Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7781 may go extreme to betray. The logic and argument, however, have strengths in the practical aspect. For example, the developing status of national economy may lead to a different level of human decency or the non-intervention policy as a matter of international politics may find their theoretical ground from his proposition. It also can be more adaptive to the concept of state sovereignty rather than the international commitments of human rights. This view also offers an easy way to account for the public emergency which threatens the life of the nation. The second point is why a plethora of contemporary constitutions have a written commitment about the second or third generation of human rights. The critiques argue that the scope of those human rights would not be enforced as a matter of legal right. This constitutional policy of direct incorporation would vitiate our understanding as a right. It is merely prescriptive to expose a vision or ideals that the state pursues, hence, is not a right in the strict sense. This goallike dealings would blur the notion of human rights. This perspective, however, relates with the concept that human rights are negative rights, but it would be wiser to consider that the first generation also requires a positive engagement, i.e., creating an effective system of criminal law and property rights (2013). The US constitution would not be subject to this criticism, but it vastly matter with other progenies of contemporary global jurisdictions. The critiques also argue that they incur too much expensive cost to realize and their constitutional status is dubious, particularly for the nonenforceability. We may agree on this criticism as a public policy student, and probably find that the financial burden of poor government come at first. One idea could elicit the cause of this constitutional policy that the classic human rights also face with any same dilemma since the rights, as said, also can be afforded a constitutional protection by incurring costly institutions. Then there would be no explicit reason not to declare those rights as fundamental or essential. Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7782 Acknowledgement This research was conducted as funded by Chosun University 2013 grant No. 2103-204034-1. I have to thank for a benevolent financial support from CU. My earnest respect and gratitude must go to the peer scholar practitioners from the Walden University. REFERENCE Donnelly, J. (2013). Universal Human Rights in Theory and Practice. Ithaca, NY: Cornell University Press. Hicks, D. (2013).Dignity: Its Essential Role in Resolving Conflict. New Haven, CT: Yale University Press. Hunt, L. (2008). Inventing Human Rights: A History. New York/London: W.W. Norton & Company. Laureate Education Inc. (2013). Ethics and Social Justice "Fundamental Concepts" with Amanda Baker (approximately 16 minutes). Maccallum, G.C. (1993). Legislative Intent/Essays. Madison, WI: University of Wisconsin Press. Mill, J.S. (2002). The Basic Writings of John Stuart Mill: On Liberty, the Subjection of Women and Utilitarianism. New York, NY: Modern Library. Nozick, R. (1977). Anarchy, State, and Utopia. Basic Books. Reichert, E. (2006). Understanding Human Rights: An Exercise Book, Thousand Oaks. CA: SAGE. SEP: Aristotle's Ethics (parts 1-4). Retrieved Sep. 7, 2013 from http://plato.stanford.edu/entries/aristotle-ethics/. SEP: Human Rights. Retrieved Sep. 20, 2013 from http://plato.stanford.edu/entries/rights-human/. SEP: Liberalism. Retrieved Sep. 7, 2013 from http://plato.stanford.edu/entries/morality-definition/. Universal Declaration of Human Rights. Retrieved Oct.1, 2013 from Kiyoung KimHuman Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH Vol. II, Issue 6 / September 2014 7783 http://www.ohchr.org/EN/UDHR/Documents/UDHR_Tra nslations/eng.pdf. KIYOUNG KIM currently serves as a full professor of law at the College of Law, Chosun University, South Korea. He worked a judge of Korean Civil District Court, and teaches in various universities in Korea, including Sang-ji, Junng-Ang, Ajou University and others. His main area of interest covers the constitutional law, international trade law, WTO laws, public policy and governance, and international relations. He also was engaged in many of public programs and commissions, the National Bar Exam Committee, University Faculty Board, Association of Constitutional Studies, Public Exam Committee of Local Government, Expert Panel for the Local Water Resource Service. He also published widely on the topic of laws and legal philosophy, the books and articles which appear in the scholarly journals. He was a graduate of Seoul National University (LLB), and a diplomee from the Korean Institute on Judicial Research and Apprentice. He later studied in the graduate law program, University of Wisconsin-Madison (LLM/SJD), and finished a second doctorate in international relations and diplomacy at CEDS, Ecole des Hautes Etudes Internationales, Academie de Paris, in 2003. He is an active member of Bar in the State of New York and Korean Bar Association since 1998 and 1987 respectively.