‘Human rights’ writes Lynn Hunt ‘require three interlocking qualities: rights must be natural (inherent in human beings); equal (the same for everyone); and universal (applicable everywhere). For human rights to be human rights, all humans everywhere in the world must possess them equally and only because of their status as human beings’ Lynn Hunt, Inventing Human Rights: A History (W.W. Norton and Company, 2007) at 20

Using one or more of the topics covered this semester as a reference, critically assess this statement discussing relevant primary sources and appropriate academic commentary.

Note: One of my duties in the various places where I teach is to show students how to write essays – something most young people are not nowadays taught to do. What I like to do in class is to choose a question at random, discuss possible approaches, and then dictate an answer one paragraph at a time. Some of these answers are very short. Some amount to small dissertations. In this latter case, the students take turns at looking on-line for the information we decide is needed. It they cannot find it, I show them how to change the structure of what has already been written, or to strike out in a new direction.

It is a “writing masterclass” approach that makes use of my own strengths, and is often a welcome alternative to formal teaching. It fills up a long morning session. Everyone learns something, and the more attentive will improve their final grades by at least one step.

Here is an example of the finished product. Do not take it as a statement of personal opinion. It is an answer produced for a specific question, and it bears in mind what a possibly unknown examiner will appreciate, and what can be written to incorporate the sources found in class. SIG

PS – If anyone wants to engage my services as a teacher of these skills, please click on the image to the left. Though they are my niche subjects, Greek and Latin are not my exclusive focus as a teacher. I do much else besides.

PPS – If you are a student, and you have come across this in a frantic last minute search, I advise you not to copy and paste and submit. You will be found out in three clicks of a mouse. Examiners were not born yesterday.

In this essay, my critical assessment of what Lynn Hunt says will be broadly negative. In particular, I will focus on the discussion of ‘The Idea of Human Rights’ that took up the first two lectures in this module. I will argue the following points:

  • That the idea of human rights is a largely Western concept, deriving from Aristotelian philosophy and Western Christianity;
  • That this tradition is open to question in purely abstract terms;
  • That the content of human rights law is not agreed in many important details ,and that this has shifted within living memory;
  • That some human rights are impossible to achieve;
  • That attempts to create a universal jurisdiction for human rights have been, and will probably continue to be, a failure.

None of what I will argue involves the counter-claim that it is right and proper to treat people badly. I only argue that what may be called the ideology of human rights is neither clear and simple nor universally accepted.

There is no doubt that Hunt is echoing the consensus among writers on human rights. According to James Nickel, they are:

basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. Calling these guarantees “rights” suggests that they attach to particular individuals who can invoke them, that they are of high priority, and that compliance with them is mandatory rather than discretionary. Human rights are frequently held to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country. (Nickel, 1987, pp. 561-62)

Such rights are written into state constitutions and international treaties .Alleged breach of these rights in any particular country is believed to justify international action against at least the government of that country. There were formal sanctions against South Africa in the days of apartheid. There are informal sanctions against the Government of Israel. Starting with the Serbian intervention in 1999, there are even wars against states that are claimed to be in systematic breach of the human rights of their citizens. (Ignatieff, 2000, p. 297)

In this sense, human rights exist because enough of the people in charge believe they exist. Several former heads of state are in prison or dead for the crime of violating them. But it is worth asking why people believe in them. The answer is belief in human rights is part of the civilisation of the West.

Human Rights: An Ideology of the West

In his Nicomachean Ethics (1893, p. 163), Aristotle (384-322 BC) speaks of a universal moral law that stands beside the laws of nature. From this comes the idea that this universal moral law of nature is superior to any particular set of laws, and that these sets of laws are only legitimate so far as they try to embody the universal law. Cicero (106-43 BC) writes:

This law cannot be contradicted by any other law, and is not liable either to derogation or abrogation. (Cicero, 1841, p. 270)

This was carried into Christianity, and was hegemonic in Europe throughout the Middle Ages. It forms the background against which the English, American and French liberals of the Enlightenment expressed themselves.

The idea of the right to be left alone as a natural right is clearly stated by John Locke (1632-1704). He says:

To understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man. (Locke, 1764, p. 195)

The next major step comes in 1776, with the American Declaration of Independence. This is heavily influenced by the natural law tradition, as seen in Lockean terms. It restates the existence and natural source of rights. It also claims that, when a government violates these rights, people may ‘throw off such Government, and…provide new Guards for their future security.’ (The Thirteen United States of America, 1776)

Once established, the United States Government did not assert a right of revolution for the safeguarding of natural rights. Instead, it tried to embody these in its Constitution. Then, in 1803, the Supreme Court took to itself the right to judge any particular legislation by the standard of the Constitution. (Marbury v Madson, (1803))

The French Declaration of the Rights of Man and the Citizen (1789) goes further, in its claim that natural rights are possessed by all human beings simply by virtue of being human. (Hunt, 2007, p. 123) The United Nations’ Universal Declaration of Human Rights (1948) goes further still, in asserting the doctrine of human rights as an international norm, to be accepted by all member states. (United Nations, 1948) But these documents and all others stand in a clear and recognisable tradition that took shape in the Ancient World and in Mediaeval and Modern Europe. Amartya Sen says of them:

…a great many acts of legislation and legal conventions (such as the European Convention for the Protection of Human Rights and Fundamental Freedoms) have been clearly inspired by a belief in some pre-existing rights of all human beings. (Sen, 2004, p. 318)

The idea of human rights, therefore, is a specifically Western idea.

Because something was first said by white European males does not make it untrue. We do not reject the Laws of Motion because Newton was an Englishman. But, for reasons that I will discuss later, we cannot say that moral views are of the same nature as scientific truths. The idea of human rights is a Western idea. It took shape in a particular civilisation, governed by particular religious views. It has been imposed on the world by the cultural, economic and military hegemony of the West. It may be a good idea that deserves to prevail. But it is not a natural development of all other civilisations. It is simply not the case that the consensus in other civilisations accepts the claims of the Western liberal tradition.

The Soviet Union and its satellites rejected the idea of natural human rights:

The Bolsheviks proclaimed a Declaration of Rights of the Working and Exploited People in 1918, but it included not  one political or legal right. Its aim was to “abolish all exploitation of man by man,  to completely eliminate the division of society into classes, to mercilessly crush the  resistance of the exploiters, [and] to establish a socialist organization of society.”  Lenin himself quoted Marx in arguing against any emphasis on individual rights. (Hunt, 2007, p. 283)

Or there is what Michael Ignatieff calls ‘The Challenge of Islam.’ The Saudi delegate at the drafting of the Universal Declaration of Human Rights made this point:

The  authors  of  the  draft  declaration  had,  for  the  most  part,  taken into consideration only the standards recognized by western civilization and had ignored more ancient civilizations which were past the experimental stage, and the institutions of which, for example, marriage, had proved their wisdom through the centuries. It was not for the Committee to proclaim the superiority of one civilization over all  other  or  to  establish  uniform  standards  for  all  countries  of  the world. (Cited in Ignatieff, 2000, p. 324)

the Cairo Declaration on Human Rights in Islam (1990) goes further. This offers a radically different view of rights from those of the West. Though following the style of Western declarations, its content is different. Take Article 22 (a):

Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari’ah. (World Conference on Human Rights, 1990)

Though Aristotle is honoured in Islam, his idea of a natural law that can be explored by the use of reason is an alien idea. For Muslims of all sects and persuasions, the Truth is a matter of revelation. All human arrangements are to be judged by this Revelation, and by nothing else. There can be different emphases on the meaning of this Revelation. There can be attempts to reconcile Revelation with the content of Western natural law. But Islam is a different civilisation, with its own approach to rights. (Sædén, 2010)

The same is true of Asia:

Singapore’s Lee Kuan Yew has been quoted as saying that Asians have ‘little doubt that a society with communitarian values where the interests of society take precedence over that of the individual suits them better than the individualism of America. (Ignatieff, 2000, p. 327)

Seen from these perspectives, Western natural law, with its emphasis on individual rights, and its expressions, however disguised, in the big Declarations, is at best alien. It may be seen even as a means of imposing an alien and unwanted hegemony .Such is the view of Edward Said. He accuses the West of producing an ‘otherising’ gaze on the East. He calls the West culturally as well as politically imperialist and argues that non-Western traditions need to be appreciated, even when their conceptions of rights are collectivist rather than individualist. (Said, 1978, p. 132) Or as  Sædén argues:

One of the most frequently asked questions when it comes to the UN declaration of Human Rights is, how universal are they really, are they compatible with the whole world or are they simply a manifestation of Liberal, Western, Christian ideas. (Sædén, 2010)

Self-Evident Human Rights?

So much for the universality of human rights. What about the claim that they are natural, or inherent in human beings? If you are a West European Christian, it may be self-evident ‘that all men are created equal, that they are endowed by their Creator with certain unalienable Rights’ to various things. If you are not, why accept this statement? We know the melting point of lead because we can experiment and measure it. We know that the square of the hypotenuse is equal to the sum of the square of the other two sides because that really is a self-evident proposition. But if A hits B on the head with an iron bar, how do we know that A has violated some natural right of B? A has committed an assault according to the laws of a state. A has violated some international declaration. A has earned some degree of disapproval. But A is not prevented from acting by any law of nature. No bolt of lightning strikes A dead before or after acting. It may be that A will benefit from this act and die, in some remote future, very happy. Take away a particular idea of God, and the claim that A has violated the natural rights of B is just a set of words.

Jeremy Bentham (1748-1832) treated the idea with open contempt:

Natural rights is simple nonsense: natural and imprescriptible rights (an American phrase) rhetorical nonsense, nonsense upon stilts. (Bentham (1792), cited in Sen, 2004, p. 316)

Michael Ignatieff appears to agree that human rights can have no logical foundation in natural rights:

Far better, I would argue, to forego these kinds of foundational arguments altogether and seek to build support for human rights on the basis of what such rights actually do for human beings. (Ignatieff, 2000, p. 321)

This leads to a justification of human rights in terms of their utility. It may be that a respect for human rights as conceived within the Western tradition makes individuals happier. Or it may not. This is a matter for argument Or we can ask why it is good for people to be happy. There may be other and more important goods, such as duty to class or people or obedience to God. The idea of human rights is part of a specific view of the world that may or may not be true, but that is neither self-evident nor accepted by the entirety of the human race or its intellectual leaders.

Indeed, let us look again at Bentham:

Right, the substantive right, is the child of law; from real laws come real rights; but from imaginary laws, from ‘law of nature’ [can come only] ‘imaginary rights.’ (Bentham (1792), cited in Sen, 2004, p. 325)

What He is stating here is the essence of legal positivism, or the view that laws are only worth calling law when they come from an authoritative lawgiver. This is at least as important a strand of Western thinking as the natural law tradition. The underpinnings, then, of much talk of human rights is not only specific to the West, but is specific to a Western ideology that does not itself have universal acceptance within the West.

Human Rights Shifting and Inconsistent

We now ask if the idea of human rights is internally consistent. In Chapter 13 of his Universal Human Rights in Theory and Practice, Jack Donelly raises the possibility of a fundamental conflict between human rights as they are presently conceived. He quotes from the Declaration and Programme of Action of the 1993 Vienna World Conference on Human Rights:

Democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. (Cited in Donelly, 2013, p. 217)

He does not deny ‘that they may be made interdependent,’ but accepts that there is room for tension. Perhaps this tension is inherent to the idea of human rights as presently conceived.

Let us take the American Bill of Rights as a statement of negative rights:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. (Bill of Rights of the United States of America, 1791)

This is a right that would have been recognised by John Locke. You see the same kind of wording in the French Declaration of the Rights of Man and in most declarations of rights before the twentieth century. Each clause begins with words to the effect that the authorities shall not…. So long as the authorities do not, then the individual is free, and human rights have been secured.

However ,take Article 24 of the Universal Declaration of Human Rights:

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. (United Nations, 2015)

Denial of these good things is not generally an act of the State. They are denied by other individuals. Moreover, enforcing such rights requires an interference with economic arrangements between individuals that may contradict the more traditional conception of property rights that are contained in the older declarations. I can also be claimed that such rights are practically impossible to secure in less-developed countries. (Donelly, 2013, p. 43)

But let us turn to a present controversy. On the 8th or 9th May 2014, Gareth Lee, a gay man living in Northern Ireland, placed an order for a cake that was to be decorated with the words ‘Support Gay Marriage.’ On the 12th May 2014, he was informed that his order was rejected. The baker said he was a devout Christian, and that decorating the cake in this way was against his conscience. Mr Lee then sued, claiming he been discriminated against contrary to the provisions of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, or the Fair Employment and Treatment Order 1998, or both.

In his evidence, Mr Lee said:

I cannot believe that it is good for our community if one commercial organization with particular political or religious views can refuse to supply services to a member of the public who they identify as having the wrong kind of sexual orientation, politics or religion. (Lee v Ashers Baking Co Ltd, [2015])

In her evidence, the wife of the baker said:

Whilst we are regular churchgoers, our Christian belief affects our lives in a much broader sense. We seek to live at all times in accordance with the doctrines and teaching of the Bible, as we understand them. We consider that it is necessary as Christians to have a clear conscience before God. This means that we must live out our faith in our words and deeds and that it would be sinful to act or speak contrary to God’s law.

Here, we have a conflict between the right not to suffer discrimination and the right to free expression of religious belief. How the case was decided, and how it might have been decided had the facts been different are beside the point now being made. This is that the courts are increasingly required in human rights cases to balance one right against another. If a newspaper is shut down by the authorities, or if someone is tortured into self-incrimination, there is no conflict of rights. There is simply the extent to which the facts of the case fit the relevant section of the enshrined Bill of Fundamental Rights.

This has not been the only case of its kind before the courts – of Britain or elsewhere. Take the recent case of the transgendered Jewish father. (J v B and The Children (Ultra-Orthodox Judaism: Transgender), [2017]) The argument was between the human right of the father to have access to her children, and the right of the children to live a reasonable life in their community. According to the reporter’s comment on the judgment:

This case shows an insightful analysis where the judge balanced the rights of a transgender person and the importance of contact in this context, as against the needs of the children to be accepted by the community in which they were born and which was their chosen way of life (chosen by both mother and father).

A balancing of conflicting human rights, all enshrined in human rights law. The emerging possibility of a hierarchy of human rights that would have been unthinkable in the older conception of human rights. This surely conflicts with the idea of equal rights for all.

Moreover, the idea of human rights has changed over time. Until about 1970, homosexual acts were illegal in many Western countries. They are now human rights. Gay marriage is an established fact. The idea of transgender rights was almost unknown by the public until about 2010. They are now taken seriously by the English courts. Also worth adding is that the older idea of human rights was about the relationship between people and their government. Courts are increasingly recognising a ‘horizontal effect of human rights,’ in which disputes between non-state actors take on human rights implications.

Lynn Hunt speaks of ‘The bulldozer force of the revolutionary logic of rights.’ (Hunt, 2007, p. 152) Perhaps there is a logic. On the other hand, there can be a suspicion – especially for those outside the assumptions of Western civilisation – that human rights are a façade behind which ideological disputes are worked out, and that there is nothing universal about them.

International Enforcement

Though I am writing about Law, not Politics, we can see this clearly in the international enforcement of human rights. Since the end of the Second World War, a dense network of human rights treaties and agencies has grown up. But all this is open to suspicion of impure motives. For example, it seems that the Nazi atrocities were fully punished. But they were not. Punishment was selective. The Nazi leader Hermann Goering may have been sentenced to death because he was useless to the victors. The rocket scientist Wernher von Braun committed many atrocities, but was protected by the Americans because he was useful to them. (Teitel, 2013) The Nazi leaders were tried for crimes against humanity – and their judges included agents of the Soviet State that had committed crimes of its own against humanity.

More recently, there has been selective enforcement of human rights. Rwanda has no oil. No one stopped the massacres there. Libya has oil. It was invaded. Serbia was invaded for human rights abuses, not Indonesia. African dictators are put on trial before international tribunals. Tony Blair – guilty or innocent – will never face charges. After so much fuss in London, General Pinochet still died in his own bed. So many declarations of human rights, so many international agencies to enforce them, and it is hard to think of a purely disinterested line on human rights abuses. As Donnelly sadly admits:

Human rights advocates also are often critical of ‘inconsistent’ policies that treat comparable human rights violations in different countries differently. (Donelly, 2013, p. 205)

So forget equality where enforcement of human rights is concerned at the international level. Forget it in the foreseeable future.

Therefore, I say that human rights are not natural. They are not equal. They are not universal. Their idea may be better propaganda than legal or moral philosophy. The idea may cloak a more sophisticated form of Western imperialism than the old model of military conquest. It may have no clear intellectual foundation. It may not be capable of full statement without a mass of inconsistencies. It may be a joke at the international level. All these being so, Lynn Hunt’s definition may apply to nothing that is actually real. Human rights are a nice idea. They are like Christmas as it is now celebrated – not for everyone, and not to be taken too seriously.

Bibliography

Aristotle, 1893. Nicomachean Ethics. 5th ed. London: Kegan Paul, Trench, Truebner & Co..

Bill of Rights of the United States of America, 1791. s.l.:s.n.

Cicero, M. T., 1841. The Political Works of Marcus Tullius Cicero: Comprising his Treatise on the Commonwealth; and his Treatise on the Laws.. London: s.n.

Donelly, J., 2013. Univeral Human Rights in Theory and Practice. Ithaca and London: Cornell University Press.

Hunt, L., 2007. Inventing Human Rights: A History. On-line via Scribd ed. New York and London: W. W. Norton & Company, Inc..

Ignatieff, M., 2000. Human Rights and Politics: Human Rights as Idolatry, Princeton: Princeton University.

J v B and The Children (Ultra-Orthodox Judaism: Transgender) ([2017]) EWFC 4.

Lee v Ashers Baking Co Ltd ([2015]) NICty 2 (19 May 2015).

Locke, J., 1764. Two Treatises of Government. London: A. Millar et al..

Madison, M. v., 1803. 5 U.S. 137. s.l.:s.n.

Marbury v Madson ((1803)) 5 U.S. (1 Cranch) 137.

Nickel, J., 1987. Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights. 1st ed. Berkeley: University of California Press.

Sædén, L., 2010. Alternative Islamic Human Rights, s.l.: Lunds Universitet.

Said, E. W., 1978. Orientalism. London: Routledge & Kegan Paul Ltd.

Sen, A., 2004. Elements of a Theory of Human Rights. Philosophy and Public Affairs, 32(4).

Teitel, A. S., 2013. Wernher von Braun: History’s most controversial figure?. [Online]
Available at: http://www.aljazeera.com/indepth/opinion/2013/05/2013521386874374.html
[Accessed 09 12 2017].

The Thirteen United States of America, 1776. Declaration of Independence. s.l.:s.n.

United Nations, 1948. The Universal Declaration of Human Rights. New York: United Nations.

United Nations, 2015. Universal Declaration of Human Rights. New York: United Nations.

World Conference on Human Rights, 1990. Cairo Declaration on Human Rights in Islam, Cairo: United Nations.

 

 

 

 

 

Tags: , , , , , , , , , , , , , , , , ,