Human Rights: Overview

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Human Rights: Overview

The idea of human rights posits that human beings, regardless of extrinsic differences in circumstance (nationality, class, religion) or physical condition (race, gender, age), possess a basic and absolute dignity that must be respected by governments and other people. Sometimes these rights claims have been grounded in systems of positive law, sometimes in conceptions of human nature or divine creation. Most scholars who study moral and political ideas on a global basis agree that the concept of human rights is Western in origin, although it has spread throughout the world in recent times. The United Nations Universal Declaration of Human Rights of 1948 and other proclamations that have followed from it establish that such rights pertain across the globe regardless of cultural, religious, social, or political differences. In this sense, the very idea of human rights stands logically opposed to moral relativism of any sort. Depending on one's perspective, this hallmark of rights is either a shortcoming or an advantage.

Stoicism and Roman Jurisprudence

The assertion of the modernity of human rights theory must be qualified by the recognition that many of its characteristic elements were present in and elaborated by earlier theorists. For instance, scholars have found in Aristotle (384322 b.c.e.) the logical rudiments of a rights theory, albeit imperfectly articulated and applied. More directly influential were the teachings of the Hellenistic Stoic philosophers. Starting with the founder of the school, Zeno of Citium (c. 335c. 263 b.c.e.), the Stoics held that human beings were subject to a basic law of nature, the dictates of which were accessible to all equally by application of their reason. Of course, most human beings submitted to their passions rather than to reason, meaning that the vast majority were unhappy as well as vicious. The Roman author Cicero (10643 b.c.e.), while not the Stoic sage that he was once thought to be, extended the doctrine of natural law to cover a basic guarantee of justice for all human beings equally and without differentiation. In his De officiis (44 b.c.e.; On duties), Cicero articulated the principle that people have a duty to secure justice for all members of the human race, regardless of their nationality or ethnicity.

The thinking of Cicero and others influenced by the Stoics led to what might be considered the earliest coherent expression of the language of human rights. The language of ius ("right") emerged quite soon after the foundation of the Roman Republic, mainly to denote a form of divine judgment. In later Roman times, ius constituted the basis of valid or obligatory Roman law, such that persons were fundamentally bearers of rights derived from and fixed by law. At the same time, Roman law drew a clear and enduring distinction between ius naturale and ius civile: the latter pertained to specific legal and social systems and might be variable, whereas the former comprised general rules or principles of equity with which all legal codesregardless of time or placewere expected to comply. Thus, ius naturale captures one fundamental element of human rights: the universality of such rights that cannot be overridden by appeal to particular contexts or cultural conditions.

Christianity and Medieval Contributions

Roman legal concepts and terminology carried over into the Christian era in Europe, albeit with important changes and additions. Medieval canon (church) lawyers and Scholastic philosophers insisted that God endowed human beings with basic rights regarding themselves and those goods they required to preserve their divinely created lives. Some recent scholars, most notably Brian Tierney (1997), have identified in the work of twelfth-and thirteenth-century canonists a consistent distinction between "subjective" and "objective" rights. The former resemble modern "natural rights" to life, liberty, and estate, while the latter are moral duties imposed by God regarding fellow human beings. The canonistic texts generally do not support the presence of a rigid and thoroughly examined separation between "subjective" and "objective" components of iura (rights), and no canonist developed a complete theoretical argument on the basis of the distinction. Yet, there is certainly evidence that church lawyers sometimes sought to develop a principle of human rights compatible with human freedom, a connection also central to an encompassing human rights theory.

Many attempts have been made to identify the "first" theorist of human or natural rights in the Middle Ages. The Scholastic philosophers/theologians Jean de Paris (c. 12551306), William of Ockham (c. 1285?1349), and Jean Gerson (13631429) have been among the candidates. Several participants in the fourteenth-century controversy between the papacy and the members of the spiritual wing of the Franciscan order over the status of voluntary ecclesiastical poverty also moved the debate about the humanness of property ownership in the direction of a theory of rights. Yet, in each instance, some of the elements central to a fully "subjective" or individualistic doctrine of human rights associated with modern thought are absent.

It is perhaps best to examine the development of the theory of human rights as an incremental process. Various thinkers contributed important dimensions to its history without necessarily enunciating the idea in its final form or perhaps even appreciating the wider significance of their particular contributions. One such source may be found in the work of a group of theologians of a Thomist orientation working at the University of Paris in the later fifteenth and early sixteenth centuries, most prominently Konrad Summenhart (c. 14551502), John Mair (14691550), and Jacques Almain (c. 14801515). In a number of writings, these authors equated ius with dominium (lordship or ownership), which was understood to reside in people naturally and to license in them the power or faculty of acquiring those objects necessary for self-preservation. Their argument was as much theological as legal or philosophical: just as God enjoyed ultimate ownership of the earth and the rest of his creations by virtue of his will, so human beings, in whom God's image resided, could claim dominion over themselves and their property.

Modern Natural Rights

Arguably, the idea of human rights culminated in the natural rights theories that characterize modern legal and political thought. The idea of natural rights may be contrasted with earlier teachings about natural law that were grounded in more robust principles of reason and natural or divine teleology. Many important thinkers of early modern Europe subscribed to a version of natural law without endorsing a doctrine of human rights. Central to the concept of natural rights is the view that each and every human being enjoys a complete and exclusive dominion over his or her mental and bodily facilities and the fruits thereof in the form of personal property. Thus, a human rights theory entails a conception of private ownership grounded in the subjective status of the individual human being. The rights arising from such human subjectivity are both inalienable and imprescriptible, in the sense that any attempt to renounce or extinguish them would constitute the cessation of one's personhood. Thus, for example, human rights theory renders incoherent arguments for slavery based on alleged human inequalities of intellect or physique.

Consequently, an important feature of the fully developed idea of natural rights is its direct and immediate political bearing. Given that natural rights may not be curtailed or eliminated without the denial to a person of his or her very humanity, any government that attempts to suppress them has no claim to the obedience of its citizens. Natural rights always take precedence over artificial communal or public rights that might be imposed by political institutions. In this way, the doctrine of natural rights circumscribes political power and may even generate a defense of resistance to or revolt against systems of government that violate the rights of persons.

One of the epochal moments that posed a challenge to the doctrine of human rights was the European encounter with the Americas. While the Roman Church had long experience with questions arising from the legal status of "infidels," the discovery of entire civilizations that had experience neither of European culture nor of Christian religionin conjunction with the fact that they were rich in natural and mineral resourcescreated a severe intellectual crisis, especially in the Iberian world. Some thinkers were willing, on slender evidence, to equate the inhabitants of the Indies with Aristotelian "barbarians" or "slaves by nature." But Bartolomé de Las Casas (14741566), a member of the Spanish conquering class in the New World who experienced a profound change of heart, produced a voluminous body of writings that argued in favor of the "rights" of indigenous peoples. Las Casas drew on canonistic and civil legal literature, as well as scholastic and humanistic political discourse, to develop a polemical case that the inhabitants of Central and South America enjoyed an unfettered right (individually and collectively) to live unmolested by Europeans and to resist with force those who would kill or enslave them. Las Casas's clear invocation of human rights suggests that a water-shed had been reached.

The Reformation and Its Aftermath

At nearly the same time that Las Casas was grappling with Spanish imperialism, the idea of human rights also received refinement and application in the context of the religious Reformation. On the Protestant side, rights theory became a major element of late-sixteenth-century Huguenot efforts to ground their justification of resistance to governments that imposed doctrinal conformity on religious dissenters. While the earliest generations of Reformers had looked toward duty to God in order to justify acts of political disobedience, a noticeable change in language and concepts occurred in the wake of the St. Bartholomew Day's Massacre of 1572. In this vein, Théodore de Bèze (15191605) and Philippe de Mornay (15491623), as well as a large body of anonymous texts, argued for a condition of human libertya privilege of nature whose rightful withdrawal is impossiblethat precedes the creation of political society. Therefore, any subsequent government must result from, and must be consonant with, the basic natural state of humanity. Those who would use political power to deny to human beings the exercise of their libertyincluding the freedom of conscience to dissent from the established Roman Churchmay properly and licitly be challenged with forms of resistance to their tyranny. The Huguenots stopped short, however, of advocating popular rebellion. Instead, they looked to "intermediary magistrates" as the appropriate instigators of resistance to tyrannical conduct. Hence, for sixteenth-century Reformers, the idea of human rights became a stimulus for a religio-political movement that directly opposed forms of religious intolerance and suppression of dissent.

The Counter-Reformation produced its own version of human rights theory that developed out of the language and concepts pioneered by the Parisian theologians Mair and Almain. This is especially evident in the work of the "Second Scholastic" thinkers associated with the School of Salamanca, such as Francisco Vitoria (1486?1546), Domingo de Soto (14941560), and Francisco Suárez (15481617). Vitoria had been trained in Paris and returned to Spain to spread the ideas to which he had been exposed there. Although Vitoria himself wrote nothing, leaving only lecture summaries, his students and their intellectual progeny produced some of the fullest and most enthusiastic elaborations of human rights (Las Casas, for example, was influenced by him). In particular, Vitoria and de Soto explored the complexities of rights theories, moving away from the traditional Thomistic conception of rights as objective duties required by reason. Vitoria's work seems to have contained two differing conceptions of subjective human rightsone connected with individual dominium, the other defined in relation to communal law. Each position involved notable limitations and flaws, which led de Soto to attempt to resolve them into a coherent formulation of rights that incorporated both public and private dimensions. Suárez added further to the theory by identifying ius with self-preservation and drawing from this some, albeit limited, political implications. He held that a human right existed to resist extreme forms of tyranny, construed as those circumstances in which the survival of the community as a whole was endangered. Otherwise, the misbehavior of government was to be tolerated, lest communal destruction result from acts of disobedience and resistance.

While the School of Salamanca remained steeped in the neo-Aristotelian doctrines of the later Middle Ages, other thinkers attempted to replace this framework with a paradigm for human rights rooted purely in legal principles. Especially celebrated in this regard were Hugo Grotius (15831645) and John Selden (15841654). Grotius proposed that rights should be grounded solely on the universality of the propriety of human self-preservation, thereby placing self-interest at the center of a human system. He reasoned that human beings enjoy dominium over those goods that are immediately necessary in order to preserve themselves: rightful private ownership is directly licensed as a human right. Moreover, he attacked the Aristotelian doctrine of the naturalism of political society. Instead, for Grotius social order must be voluntary, and the only reason that people would join civil society would be for self-protection. As a consequence, the individual does not surrender human rights by entering into a communal arrangement and, indeed, may resist a direct attack on those rights by a magistrate. While Selden enunciated a sustained critique of Grotius, he ultimately embraced an account of human rights derived from his adversary. Selden devalued reason in sense of a moral force with the power to bind and compel the actions of individuals. Rather, he stressed that human rights are directly correlated to natural liberty, such that the only basis for individual obligation is free assent to contracts and compacts, which, once agreed to, must be maintained without exception. For Selden, in contrast to Grotius, natural liberty itself could be renounced by a valid act of human will.

The Classic Theories: Hobbes and Locke

Selden's best-known adherent was Thomas Hobbes (15881679), who developed the insights of the former into a powerful individualist theory of human rights. In his major works, culminating in Leviathan (1651), Hobbes ascribed to all human beings natural liberty as well as equality, on the basis of which they are licensed to undertake whatever actions might be necessary to preserve themselves from their fellow creatures. Such self-preservation constituted the indispensable core of human rights. Adopting an extreme position against the Aristotelian teaching of political naturalism, Hobbes maintained that the exercise of one's natural liberty leads directly to unceasing conflict and unremitting fear, inasmuch as nature confers on each individual the right to possess everything and imposes no limitation on one's freedom to enjoy this right. Unalloyed nature yields a state of chaos and warfare and, as a result, a "nasty, brutish, and short" life, the avoidance of which leads human beings to authorize a single sovereign ruler in order to maintain peace. The exchange of natural freedom for government-imposed order, constructed through a social compact, requires renunciation of all claims on rights that humans possess by nature (except, of course, for the right of self-preservation itself) and voluntary submission to any dictate imposed by the sovereign. In this way, Hobbes seconds Selden's defense of absolute government, yet upholds the basic right to self-preservation. Moreover, under the terms of Hobbes's absolute sovereignty, subjects are still deemed to retain the right to choose for themselves concerning any and all matters about which the ruler has not explicitly legislated.

John Locke (16321704) crystallized the preceding conceptions of human rights into the quintessential statement of the modern idea. He began his major work on political theory, the Two Treatises of Government (written c. 1680; published 1689), by postulating the divinely granted human rights of individuals, understood in terms of the absolute right to preserve one's life and to lay claim to the goods one requires for survival. Arguing against the patriarchal doctrine of Sir Robert Filmer (15881653), Locke insists that no natural basisneither paternity nor descentjustifies the submission of one person to another. Rather, all people are deemed sufficiently rational, as well as free and equal, in their natural condition that they can govern themselves according to a basic cognizance of moral (natural) law, and, thus, will generally respect the rights of others. In contrast to Hobbes, Locke maintains that the condition of perfect natural liberty does not represent a state of war. In the state of nature, human beings can enjoy unimpeded rights to acquire private property, the ownership of which is asserted on the basis of the admixture of their labor (the natural talents and industry of their bodies) with the physical world. Indeed, Locke's state of nature resembles nothing so much as a fully functioning commercial society, which has introduced a system of exchange relations and money, all perfectly consonant with the recognition of the human rights of individuals.

On Locke's account, then, there is no pressing necessity for people living in the state of nature to eschew this condition for formalized communal life. Hence, should they choose to enter into bonds of civil society by means of a contract, the sole reason that they do so is to avoid the "inconveniences" and inefficiency of the pre-civil world. This does not require parties to the contract to surrender any of their human rights. Indeed, the only government worthy of authorization is that which strictly upholds and protects the rights that persons possess by nature. According to Locke, any magistrate that systematically denies to his subjects the exercise of their natural rights to their life, liberty, and estate is tyrannical and unworthy of obedience. Locke closes the Second Treatise with a discussion of the dissolution of government. In his view, a regime that systematically violates human rights places itself in a state of war with the members of civil society, who severally and individually may renounce allegiance to it and may vote to establish a new government. Some have viewed Locke as justifying revolution on the basis of human rights, but his actual point seems to be less extreme: the retention of one's human rights in civil society affords one the ability to protect oneself from those (whether housebreakers or magistrates) who would try to take one's property or limit one's proper sphere of liberty. Locke's resistance theory represents a chastened, but nonetheless genuine, defense of human rights.

Reception of the Classic Theories

Locke's theory, then, stated an integrated position that drew on many of the earlier strands of human rights thought. In turn, the eighteenth century would see the extension, refinement, and, in some respects, radicalization of the fundamentals of the Lockean doctrine. Locke's language was adopted, for instance, by both theorists and polemicists who sought to halt Europe's complicity in the global slave trade. Likewise, defenders of the equal rights of women to political and social power, such as Mary Wollstonecraft (17591797), framed their ideas in the language of rights. Critics of natural nobility and other claims to inborn human inequality invoked the universality of rights as the basis of their assertion of the equal worth and dignity of all people, regardless of birth, class, or occupation. Among the most famous of these was Thomas Paine (17371809), whose treatise on The Rights of Man (1789) was read and admired on both sides of the Atlantic. Of course, Lockean natural rights theory received its share of criticism during the eighteenth century as well, whether from communalist democrats such as Jean-Jacques Rousseau (17121778) or from more individualistic proponents of political economy such as Adam Smith (17231790).

Yet, in general, the 1700s may well be regarded as the "century of human rights." The American Declaration of Independence (1776), written by Thomas Jefferson (17431826), reaffirmed the "self-evidential" character of human rights. The elaboration of the Lockean stance during the eighteenth century perhaps enjoyed its European apotheosis in the post-Revolutionary French Declaration of the Rights of Man and the Citizen (1789). The declaration, which forms perhaps the major source for all later declarations of human rights, proclaims that the aim of civil life was "the preservation of the natural and imprescriptible rights of man"they nearly included woman, tooincluding political, economic, social, religious, and cultural rights as well as resistance to tyranny.

Critique and Disuse

The spread of rights language in political discourse was countered at the dawn of the nineteenth century by criticisms of the intellectual foundations of rights theory. Most famously, the major exponent of the utilitarian school, Jeremy Bentham(17481832), denounced the doctrine of natural rights as "simply nonsense," adding that the conjunction of natural and inalienable rights was "nonsense upon stilts." Bentham's objection was at once political and philosophical. Having witnessed the violent consequences of appeals to absolute rights during the French Revolution and its aftermath, Bentham was appalled by the abuse of rights talk in order to justify coercive restrictions and individual "leveling." While sympathetic to democratic reforms, and no friend of conservative values, Bentham believed that legality constituted the only viable means of securing human liberty. Moreover, Bentham found the metaphysics (whether religious or naturalistic) that supported eighteenth-century conceptions of human rights to be hopelessly outdated and even intellectually dangerous, inasmuch as such doctrines could be as easily invoked to inhibit individual calculations of utility as to realize them.

From a very different perspective, social conservatives also strongly condemned the idea of rights. Most famously, Edmund Burke's (17291797) Reflections on the Revolution in France (1790) pointed out the political terror implicit in the invocation of metaphysically abstract human rights as the foundation of social and political order. Such rights could readily be employed to ruthlessly suppress existing institutions (the church, class status, governmental units) that constituted the sources of human identity and solidarity, which Burke took to be the real or concrete basis of human rights. As bearers of abstract rights, but without a context in which to exercise them, Burke expected that the masses would turn to an authoritarian figure who would direct them. In the rise of Napoleon Bonaparte (17691821), his expectations were accurately realized.

On the political left, suspicion of human rights was also rife among socialists, communists, and anarchists. Pierre-Joseph Proudhon (18091865) regarded rights to be the theory, and private ownership the practice, of theft. For Karl Marx (18181883) and many of his followers, "rights" were necessarily "bourgeois rights," that is, an ideological superstructure that bolstered and justified the appropriation of the surplus labor of the proletariat by the economically dominant capitalist class. In Marx's view, the rights posited in capitalist societyeconomic rights to property ownership and to sell one's labor as well as minimal political rightsare partial and cannot be historically distinguished from the interests of capital. By starting with an abstract and unhistorical concept, appeals to human rights thus necessarily covered over and legitimized the base structures of human domination.

Twentieth-Century Developments

Despite the critiques of philosophers and activists, the idea of human rights remains one of the most compelling, salient, and popular political doctrines of recent times. Impetus was given to this by the 1948 U.N. Universal Declaration of Human Rights and the many other attendant international and multinational agreements that have reinforced the notion that human beings as morally dignified persons are bearers of rights. The declaration offered a more robust version of what constitutes basic human rights than did most previous statements and theories. In addition to personal, political, legal, and economic rights, the framers of the declaration included a full set of social rights that they regarded as essential to a minimum level of human flourishing. These included social welfare, public education, workplace protections, and an assured living standardin sum, the way of life to which European social democracies aspire. It is an open question whether such human rights are really more a matter of social justice than fundamental moral dignity.

Stripped of theological and metaphysical connotations, rights in the postWorld War II era again became intellectually respectable among certain legal and political theorists. Some thinkers interpreted rights in a positivistic fashion, namely, a "right" properly connotes a power that an individual might reasonably expect to have vindicated by the judicial system in a particular political system. Thus, it is meaningless to assert one's "right to free speech" in an authoritarian regime or to claim a "right to same-sex marriage" in a society that has constitutionally prohibited such unions. Hence, in the positivist interpretation, the appeal to human rights cannot be deployed as the grounds for social criticism or civil disobedience.

Likewise, the analytical school of philosophy that has predominated in the English-speaking world from the middle of the twentieth century has shown an interest primarily in examining the various contexts in which rights language is asserted. Perhaps the best-known figures on this score are H. L. A. Hart (19071992) and A. I. Melden (19101991), for whom the assertion of a right is the ground of a claim, in others, an appeal to a fundamental or irreducible principle. That such grounds are not always recognized, or that they are on occasion overridden, does nothing to contradict the linguistic observation that when a person appeals to a right he or she is affirming a precept that is deemed antecedent to, rather than created or authorized by, law. Analytical theory, of course, takes this to be a point about the use of human language or logic, not about an idea that must be rooted in metaphysical truths.

One finds an analogous, if more extreme, attitude toward rights arising from postmetaphysical schools of philosophy such as poststructuralism, multiculturalism, and neopragmatism. In the view of adherents to these antifoundationalist approaches, the very attempt to impose a universal category such as "human rights" takes on authoritarian overtones. From the inherent rights perspective, Muslim women who wear traditional headdress and garb must be oppressed by their religious and patriarchal society and are in need of liberation to dress however they wish. Such a claim, for postmetaphysical theorists, reveals the inherent secular, individualistic and, ultimately, paternalistic biases of human rights doctrines.

The denial of an extraconventional grounding to rights has, however, been challenged since the late twentieth century by neonatural law theorists such as John Finnis, Germaine Grisez, and Robert George. For these thinkers, appeal to rights without some theological or metaphysical foundations is incoherent. Robert Nozick's (19382002) influential Anarchy, State, and Utopia (1974) sought to reclaim for libertarian political thought the Lockean version of natural rights theory, albeit in a modified form that circumvented the metaphysical issues implicit in Locke. The politician Tom Campbell and others attempt to capture rights language for the political in order to support progressive causes in the realms of workers' organization, indigenous peoples, and the environment. While some liberal feminists also invoke rights language, there remains skepticism about the gendered history of the promulgation of human rights that makes it difficult for many academic feminists to include rights in their intellectual arsenal.

In comparison with lingering ambivalence among contemporary thinkers concerning the assertion of human rights, popular social and legal discourse in the Western world is permeated with declarations of personal and group rights. In a famous attack on the current prevalence of rights talk, Mary Ann Glendon (b. 1938) points out the corrosive effects of constant appeals to rights. Citizens who constantly seek "their" own rights tend to think of their fellows as obstacles to fulfillment rather than partners or persons with whom they share important qualities. In this quasi-Hobbesian world in which everyone primarily seeks his or her own rights, all are ultimately frustrated in their ability to attain what they believe is rightfully "theirs."

See also Abolitionism ; Authority ; Citizenship ; Class ; Communism ; Conservatism ; Constitutionalism ; Democracy ; Enlightenment ; Equality ; Feminism ; Hierarchy and Order ; Human Capital ; Justice ; Law ; Liberalism ; Liberty ; Person, Idea of the ; Power ; Property ; Protest, Political ; Resistance ; Responsibility ; Revolution ; Social Contract ; Society ; Sovereignty ; Totalitarianism ; Utilitarianism .



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Cary J. Nederman

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Human Rights: Overview

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