“Sollte eine Entscheidung kommen oder sollte es vorher nötig werden, Sie noch einmal zu verhören, werde ich Sie holen lassen. Sind Sie damit einverstanden?”
“Nein, gar nicht,” sagte K., “ich will keine Gnadengeschenke vom Schloß, sondern mein Recht.”
1.1 Parameters of Analysis
The concept or idea of a “right” – or, more precisely, a “subjective Right” or “claim right” – is an intricate one.Footnote 2 Moreover, as will be illustrated in the historical reflection below, when dealing with terms such as “ius,” “right,” “Recht,” “droit,” “derecho” and so on, it is important to distinguish – as in other areas of analysis – the words themselves from what they designate. What is referred to by “right” or “subjective right” may also be the meaning of many other terms. It can even be expressed without any such terms, through a circumscription or through the implications of an expression that has very different meanings, too. For instance, the statement “My darling!” tenderly referring to a car parked in front of a house can imply a right (and a complex one at that) called “private property.” It can also refer to something quite different if addressed to a human person. In addition, different normative positions may be all called “rights,” though in different senses: The right to free expression does not mean exactly the same thing as a police officer’s right to fine a traffic offender.
In view of this fact, we need to outline, however roughly, the content of the concept and idea of human rights and other related terms.Footnote 3 This analysis forms the precondition for any discussion of the further questions that need to be addressed in this inquiry – about the history and justification of human rights and what a theory of moral cognition may (or may not) contribute to this important topic. Otherwise, conceptual vagueness will necessarily lead our investigation astray.
Any discussion of these matters needs to take note of legal human rights practice. There is no good reason to snub this practice as tedious, slightly dusty “law stuff” devoid of deeper theoretical interest. After all, the doctrine of human rights has become a rather sophisticated intellectual edifice, built by thousands of industrious legal hands. Examples include intricate concretizations of the scope of different rights, the doctrine of positive obligations, direct or indirect horizontal effects, the principle of the extraterritorial application of human rights, the concept of interference with rights, the doctrine of proportionality and the idea of weighing and balancing rights and interests. Some of these ideas are relevant for a better understanding of the concept of a subjective right, as the discussion in this chapter will illustrate.
This edifice is not simply a descriptive restatement of the content of positive law. Positive law remains silent on many of these issues. And not only that: Core elements of current human rights law are the products of case law and doctrine. Court decisions are not mindless reproductions of what is stated by positive law but demanding examples of often theory-laden normative arguments that incorporate elements of legal doctrine and develop it further. Positive law on human rights is itself often based on these interwoven jurisprudential and doctrinal developments. It is a shortcoming of some discussions in the field that they fail fully to take account of this body of thought.
1.2 Moral and Legal Rights
A first, much-discussed question that requires an answer for the purpose at hand is whether there are moral rights alongside legal rights.Footnote 4 A major issue is the supposed “criterionlessness”Footnote 5 of moral human rights – one cannot identify human rights with sufficient clarity without the determination of their content by positive law. This question was raised in particular at the time of the demise of Natural LawFootnote 6 and has continued to occupy legal reflection ever since. Some scholars regard the ontological status of moral rights as dubious because Natural Law seems the only way to conceptualize nonpositive rights. Natural Law, however, they see as wedded to an outdated metaphysics of normative entities. Consequently, in the view of some theorists, without the basis of Natural Law, the idea of rights beyond positive law has no foundations. Moreover, the idea of rights has appeared to some as being redundant as, in their view, every normatively relevant content can be expressed by moral and legal duties.Footnote 7
Some foundational elements of our contemporary human rights architecture clearly take a stand on these questions. The Universal Declaration speaks of the “recognition” (not the creation) of human rights, as do influential constitutional texts that assume the existence of human rights that are not created by law.Footnote 8 The same holds true for much of the philosophical discussion concerned with human rights as ethical norms independent of legal systems. This stance is very much in line with a long tradition of thought about human rights as fundamental legitimate claims of human beings, a tradition that ultimately gave birth to the idea of protecting human rights by legal means in the first place. The many varieties of Natural Law theory form an important part of this tradition. It is possible, however, to assert the existence of moral rights without endorsing the metaphysics of certain conceptions of Natural Law – say, Thomas Aquinas’ idea of Natural Law as a part of an eternal law permeating and determining the structure of the universe (including the content of God’s will)Footnote 9 or other such ideas.
Rights are nothing less than a fundamental element of human beings’ moral world. Any children’s birthday party illustrates the importance of normative incidents such as claims, perhaps to an equal share of the sweets distributed by the birthday child’s parent or the (occasional, thrilling) permission, privilege or liberty to do just as you please – for example, to eat these sweets whenever you want this afternoon (including: all at once, now!).
Human rights create normative positions on the basis of incidents such as claims. As we will discuss in more detail in this chapter, it is an analytical misunderstanding to think that rights can be reduced to duties of others. Importantly, rights empower the rights-holders: They invest them with control over their own lives because rights-holders can justifiably demand something of others.Footnote 10 As such, for many people rights have long formed part of the foundations of a considered ethical outlook. Moreover, as we will see in our discussion about the justificatory theory of human rights in Part II, it is not an entirely hopeless task to identify those moral rights that are plausibly taken as moral human rights – “criterionlessness” is not the ultimate verdict.Footnote 11
The historical and contemporary positions distinguishing moral and legal rights consequently are entirely on the right track. There are no convincing reasons to deny the existence and importance of moral human rights.
These findings have a very concrete political consequence: They open the door to the principled ethical critique of social practices, structures and institutions that violate human rights in a moral sense. They are also a crucial source for critiquing existing forms of human rights protection in law, identifying their possible shortcomings and developing them further. Moreover, there is good reason to believe that such ethical considerations may play a role in reasonable interpretations of human rights as positive law – many questions raised by positive human rights law are answered convincingly only if guided by the sound principles of a normative theory of human rights.Footnote 12
1.3 The Complex Makeup of Subjective Rights
What is a right? What distinguishes it from an interest in or a wish for something? There is a long, partly neglected tradition of analytical work on the idea and concept of a right, with important contributions by Natural Law theorists like Grotius,Footnote 13 deontic logicians like LeibnizFootnote 14 or legal theorists like Bentham.Footnote 15 Hohfeld’s approach has the great merit of bringing much of what has been discussed in this tradition into a clear conceptual framework. He understands rights not as simple monoliths but as a complex bundle of the normative positions of a bearer or many bearers (or holders) and an addressee or the addressees of a right. These normative positions or incidents include, first, what in standard terminology is interchangeably called a right (in a narrower sense), claim, claim right or subjective right of the rights-holder to an action or forbearance on the one hand and the corresponding duty of the addressee towards the bearer to perform or forbear from the action on the other.Footnote 16 If a person has the right to free speech, the bearer has a claim against the addressee not to interfere with the bearer’s expression, and the addressee (e.g. the state) has the duty to forbear from interfering. This is a necessary connection. There are no claims without duties, although there are morally good acts that are not normative correlatives of the claims of the patients of the acts – for example, in the case of an action that is supererogatory. Certain duties, however, necessarily imply claims – for instance, the duties of justice imply the claims of the addressees of just acts. This reveals a major analytical deficiency of the idea that rights are a redundant normative category – for many obligations, a normative system of duties is necessarily also a normative system of rights.
Second, the bearers of a large group of rights are permitted but not obliged to use the normative position they hold: They enjoy a privilege to do so or not.Footnote 17 The bearers of a right to free speech can express themselves or not, for example. The addressee has no normative claim against the bearers for them to do one or the other – the adressee’s position is characterized by a “no-right.” A right opens up a normatively protected space within which the bearer can exercise discretion,Footnote 18 defined by the nonexistence of a duty with a content precisely opposite to that of the bearer’s privilege.Footnote 19 If Serena enjoys, for instance, the privilege of expressing her opinion, she is under no duty not to express her opinion. If she enjoys the privilege of not expressing her opinion, she is under no duty to express her opinion. Standard subjective human rights thus are constituted not only by claims, but also by the privilege to do or not to do something. Other kinds of rights, such as guaranteeing the equality of human beings, are, however, constituted only by claims and duties – the claim to equal treatment or nondiscrimination and the correlated duties of the addressee.
Third, rights can contain but are not the same as normative powers to change one’s own or others’ normative position, such as the power of a police officer to create the duty of the addressee of an order – say, an unfortunate law professor caught cycling up a sidewalk on a one-way street – to stop and explain his deplorable lack of respect for traffic rules before being fined (severely, as he should know better). Such powers are sometimes also understood as rights. The “right” of a police officer to fine a traffic offender refers to a power in this sense. The expression “the right of the police officer” implies more normative incidents, however, namely claims, duties and privileges: The police officer has a claim against the offender to stop and against bystanders that they will not interfere, and the offender and bystanders have a corresponding duty not to do so. The police officer may have the privilege to fine or not to fine the offender – for example, if the respective law allows for some form of discretion in this respect. If so, the police officer is under no duty to fine or not to fine the offender.
Fourth, the normative ability embodied in a power correlates with the liability of the patient of this exercise of the power.Footnote 20 It is the opposite of the patient’s immunity to such a power, which implies the agent’s disability to effect such normative changes.Footnote 21
Bare privileges are conceivable: Their normative force is weak and consists in the possibility of acting or not acting in a certain way without violating the rights of another person.Footnote 22 At the same time, hindering the exercise of the bare privilege does not violate a normative position of the bearer of the privilege.Footnote 23 To say that the normative force of privileges is weak does not mean that they have no practical relevance. There are, for instance, important legal institutions based on such normative positions: A classic example would be the ability to appropriate things that are no one’s property – an ownerless object or a res nullius. That this is an important legal idea may sound less than obvious if we think of the used office chair that somebody has put out on the sidewalk with a “for free” sign attached. Anyone has the privilege to appropriate this chair, a normative position that does not imply a duty on anyone’s part not to take the chair first.Footnote 24 Our perception of the matter may change, however, if we consider other cases. An interesting example stems from the law of the high seas, which ultimately is rooted in the idea of free seas, of mare liberum.Footnote 25 One consequence of this idea is the guarantee of freedom of fishing and thus of access to a key nutritional resource.Footnote 26 There are some limits to this freedom in international law, including those stemming from sustainable fishing policiesFootnote 27 or the duty not to prevent others from going anywhere on the high seas to fish. However, the freedom of fishing imposes no duty not to fish first where others want to fish too, and thus it implies nothing but the privilege to harvest the fish one is able to find.Footnote 28
Another example of the practical relevance of this normative idea and at the same time of the possibility of its abuse is the doctrine of terra nullius that was applied to entire continents and the millions of people living there in the context of colonialism and imperialism to justify grave injustices, including the atrocity called the “Scramble for Africa.”
Human rights are not bare privileges. The permission to do or not to do something goes along with and is buttressed by a claim of the bearer against the addressee and a respective duty to do or not to do something, depending on the nature of the right. In addition, a legal right is enforced by the institutions and the sanctions of the law. Human or fundamental rights consequently are understood in the contexts discussed in this volume as a cluster of four normative positions: the claims and privileges of the bearer and the duties and no-rights of the addressee.Footnote 29
Such moral or legal (human) rights can have a power as their content, such as the freedom to contract the power to create contractual obligations – a power that is buttressed by the bearer’s privilege to contract or not to contract and the bearer’s claims such as the claim not to be prevented from concluding a contract by third parties and the duties of the addressees (e.g. not to interfere with the conclusion of the contract). Another example is the freedom to relinquish ownership (within the limits of other legal norms) traditionally derived from the right to property.Footnote 30 This normative position can be accompanied by immunities – for example, not to be obligated by contracts unless the agent has agreed. Such powers can be limited not only as regards a change of the normative positions of others, but also as regards a change of one’s own normative position. One may be immune to one’s own powers: The right to bodily integrity includes the right that others do not touch us without our consent. We can waive this claim under certain circumstances – for example, enjoying a caress. We cannot waive it in order to enable a third person to cut off our leg to sell it for profit, at least according to standard human rights morality and law. Many human rights imply some such powers and immunities, too.
The powers, immunities and liabilities create the possibility of layered normative systems, a central feature of morality and law – for instance, expressed in the hierarchy of laws, including constitutions that regulate the powers of a parliament to create new law that in turn establishes the power of a public authority to issue an ordinance.Footnote 31
It is an important finding that rights can be analytically broken down into a well-defined, limited set of normative incidents, and universally so. This invites further reflection on the origin of this logical structure of rights.Footnote 32
1.4 The Holders and Addressees of Rights
The personal scope (that is, the set of bearers or holders) of a right varies according to the right concerned. It can be one single individual who has a specific right – for example, in contractual relations. A class of people, such as the residents or citizens of a country, can enjoy the same rights. In the case of human rights, properly speaking, the bearers of these rights are all human beings, based on no other further characteristic than the humanity of the persons concerned.Footnote 33
At this point, some terminological clarification is in order, as the term “human rights” is often used in a wider, generic way that encompasses more than rights in this particular, technical sense of the rights of all human beings – for example, rights to vote that are limited to citizens of a state. This broader usage is found in many contributions to the theory, philosophy and history of human rights. This creates a certain difficulty if we are aiming for terminological precision but at the same time want to avoid terminological pedantry. In the following, the term “human rights” therefore will be used to designate rights in this wider generic sense as long as no greater precision is required. If the need arises, however, the term “human rights” will be used in this narrow, technical sense, too. The text will make clear which meaning is the relevant one in the context in question.
“Fundamental rights” is another term that can help to steer us through the maze of incongruent terminological usage in debates about human rights. However, it, too, first requires clarification. In the following, fundamental rights are understood as encompassing human rights in the narrow sense of the rights of all humans and rights of central importance that are, however, not granted to all persons in legal systems, often for good reason. In these latter cases, the legal situation mirrors the fact that there is no moral right in this respect either. The guarantee of human dignity as a central fundamental right, for instance, is a human right in this technical sense in many legal systems: Everybody under this state’s jurisdiction is the bearer of this right, not just the state’s citizens. This normative position is entirely justified morally because there are no ethically relevant reasons not to protect everyone’s human dignity. The right to vote, by contrast, is universally restricted to citizens or long-term residents of a state or other state-like structures like the EU. There are obvious reasons for this: Voting rights presuppose some kind of long-term relation with a state; tourists not only have no legal right to participate in elections in the countries they visit, they have no moral right either. Nevertheless, the right to vote in such a specific community is of particular importance and thus a fundamental right, though not a (moral or legal) human right in the narrower sense. However, the right to participate in some community where one satisfies some minimum requirements (citizenship, long-term residence, etc.) is a human right (in the narrow sense).Footnote 34 Insofar as the law contains this right (as customary international law arguably does),Footnote 35 it conforms to the demands of ethics in this respect – for example, because this right is interpreted as a necessary consequence of the “right to have rights”; that is, the right to be an active part of a human political community.Footnote 36 Fundamental rights therefore are synonymous with human rights in the wider, generic sense and will be used interchangeably with that term for the sake of linguistic variation.
A right can address a single individual, a plurality of addressees or everybody. In the former two cases, rights are said to be relative, in the latter to be absolute or erga omnes rightsFootnote 37 – however, the term “absolute” is used in another context as well, albeit in a different sense, namely that of rights without limitations. We need to distinguish between both senses. Property rights are absolute in the first sense but not in the second: The right to property creates claims towards everybody (e.g. not to dispose of an object owned by someone without the owner’s consent) but can be limited by laws (e.g. the property in a medieval house can be affected by the heritage protection laws of the country in question).
Legal human rights are directed against public authority on the national, supranational and international levels. Depending on the respective system’s level of development, they also have a direct or indirect horizontal effect, thus obligating private persons and legal entities.Footnote 38 The same practical effects create positive obligations that are widely accepted around the globe,Footnote 39 with some exceptions.Footnote 40 Given positive obligations based on fundamental rights, public authorities not only have to refrain from violating human rights but are obligated to take measures actively to protect human rights. Such positive obligations have become important tools of human rights protection, not least of the rights of women, and they continue to develop to meet very important challenges. For instance, they have been extended to the protection against the severe adverse effects of climate change.Footnote 41
Moral human rights are directed at private actors. Nigerian peasants, for example, have a moral right that their environment not be destroyed by the actions of powerful individuals or private companies producing oil. Moral rights can obligate public authorities, including the legislature, as well. Though one may not have the legal right to build a minaret in Switzerland as the law standsFootnote 42 (although the case is far from clear), there are plausible grounds to believe that there is a moral right of believers to determine the shape of sacred buildings (within the framework of the general rules, such as building safety), and that this moral right is interfered with illegitimately by the constitutional ban on minarets. Public authorities should be mindful of that – for instance, if the legislature is considering proposals for the reform of the law.
1.5 The Basic Content of Human Rights
Human rights are primarily distinguished from other rights by their specific scope of protection. The content of human rights catalogues varies, and often in crucial details. However, there is a cluster of central positions that constitute the basic elements of fundamental rights protection: Dignity, life and bodily integrity are among these objects of protection, as are liberties constitutive of modern constitutional orders, such as freedom of expression, of religion and belief, of assembly and of the press, or more recently established rights like rights to privacy and data protection. Human rights catalogues protect human equality and demand equal treatment through open-ended equality guarantees and prohibitions of discrimination on at least those grounds that traditionally form the reason for discriminatory treatment, including so-called race and ethnic origin, religion and belief, sex and gender, disability, sexual orientation and, more recently, protected grounds like age.Footnote 43 Human rights assure solidarity through social rights. In addition, developed codes include other rights derived from the general telos of human rights catalogues to serve and protect these core contents, such as political rights and the right to institutions and procedures relevant for the application of rights – for example, to a judicial system, to access to courts and to judicial review, among others. The Universal Declaration is a prime example of this.Footnote 44
The backbone of human rights’ legitimacy is the belief that human beings have worth, that they are not just expendable, ephemeral beings of no relevance compared to the values of a higher order of things. Human dignity is the term commonly used to denote this particular value status in international human rights law, in many constitutions and in political ethics.Footnote 45 Human rights are conceptualized as equal rights of human beings equal in worth: Their aim is to create the normatively safeguarded ability for every individual to lead a human life according to their own preferences in a just system of entitlements under conditions of preserved dignity of all. All of this is conceptualized in the terms of rights, as something that human beings can justly demand from others. This is the burden of consideration for others that human beings have to shoulder.
Rights can be an entirely formal category, without the claim to be legitimate and just. But this is not the case for human rights, which are underpinned by the idea that these rights are deeply justified.
As normative categories, human rights intend to affect agents’ reasons for action by specifying what is permitted and obligatory and thus what agents ought to do. An important element of the idea of human rights is thus that they have motivational force and cause individual and collective social action.
1.6 Co-possibility and Limitations of Rights
One substantial question of importance in debates about the structure of human rights is whether human rights can conflict, and if so, how to resolve such conflicts. One argument states that rights are co-possible without such conflict,Footnote 46 not just because they have been forfeited or waived by one party. That such conflicts of rights do exist seems hard to deny, however. The (moral and legal) right of Jason to live by the commands of his faith may collide with the same (moral and legal) right of a neighbor – for example, when the latter is woken up by loud, religiously edifying music at two o’clock in the morning, played by the former with the aim of proselytizing the wicked unbelievers next door. The same is true for conflicts of rights with public interests, which in many cases are rooted in the rights of people. The owner of a landmark historic building’s right to property can collide with the legitimate interest of a community (and arguably the community members’ right to cultural heritage that is the reason for this interest) that it not be destroyed, despite the owner’s wish to do so to erect something more profitable.Footnote 47
The structure of standard human rights law mirrors this state of affairs. The possibility of such collisions forms the basis of a universal feature of modern bills of rights: The formulation of the scope of the right is accompanied by a system of justified limitations of that right, most importantly because of the rights of others and public interests. Human rights catalogues therefore include either rules on such permissible limitations for any single human rightFootnote 48 or an overarching horizontal clause on limitations.Footnote 49 If there are no explicit clauses of limitations, the possibility of implicit limitations is adduced from the purpose of a bill of rights: A workable bill of rights cannot reasonably be interpreted as establishing unlimited rights, apart from a specific exception to which we will return, because such rights are impossible in a community of equal persons.Footnote 50
In fact, a large bulk of highly significant legal debates are concerned with this area of the law. The problem in legal practice is not so much whether there is freedom of religion, for example, but how to solve conflicts between this right and other legitimate public concerns, including, of course, the freedom of religion of other rights-holders. The relevant legal question therefore is not whether there are such collisions, but whether there are perhaps some exceptional rights that are not open to limitations. One concrete example is the right not to suffer torture, inhuman or degrading treatment (Art. 3 ECHR), which is – in the interpretation of the European Court of Human Rights (ECtHR) – absolute.Footnote 51 Another – at least according to standard interpretations of that norm – is the guarantee of human dignity in the German Basic Law.Footnote 52. The same may hold for Art. 1 Charter of Fundamental Rights of the European Union, which reproduces the wording of the dignity guarantee of the Basic Law.
Two (standard) distinctions may help us to understand more about the basic structure of rights: First, prescriptive norms such as “You shall not kill” have to be distinguished from evaluative propositions expressing axiological judgments, such as “Liberty is a supreme value” or, more concretely, “Freedom of speech is a central concern for any democratic society.” Second, prima facie norms have to be distinguished from norms all things considered. There is a prima facie right to freely exercise one’s religion, but there may be no right, all things considered, to exercise one’s religion by playing loud, edifying music at two o’clock in the morning to save one’s unrepentant neighbor from eternal damnation.
These differentiations help us to restate the (influential) distinction between rules and principles that identifies the former with all-or-nothing prescriptions, which are either applicable or not, and the latter with norms that can collide with other such norms, in which case their respective weight has to be considered to determine the principle to be applied.Footnote 53
Rules in this sense are thus – to use the terms outlined above – prescriptive rules all things considered. This is the reason why they apply in an all-or-nothing fashion. By contrast, the examples of principles in the rules-and-principles theory very often are stated as prima facie prescriptive rules, like “Nobody shall profit from their wrong.” A norm such as this is highly abstract and general and its content is thus unspecified, but it is still a prescriptive rule: It prescribes a certain human conduct in abstract and general normative terms.Footnote 54
The disadvantage of the rules-and-principles approach is that it does not account well for the difference between prima facie prescriptive rules and evaluative statements. “You shall not lie” is an example of a prescriptive rule with a prima facie character, as there are cases (all things considered) where one is permitted or even obliged to lie (e.g. to hide the whereabouts of a victim of domestic violence from the perpetrator). There is no reason to refrain from understanding “You shall not lie” as a rule and to prefer to regard it as a principle in the particular sense of the rules-and-principles approach just because it is not a rule all things considered. Rather, it is a prototype for a rule. For the same reason, it seems artificial to take a norm like Art. 3 ECHR, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment,” as something other than a prescriptive rule. If that is so, there is no structural difference between these rules and the norm “No one shall profit from their wrong” mentioned above and thus no reason to call it a “principle.”
Prescriptive rules regularly have an axiological kernel – for example, that it is unjust to inflict harm and reap advantages from the harm caused as a reward or that torture is unjustifiable. For an analysis of rights, rescuing this axiological content from analytical oblivion can prove useful: Judgments about the value of certain goods – say, free speech – are after all part and parcel of any moral or legal discourse on human rights. Identifying them properly is the precondition for their justification – or critique. And in this respect, the rules-and-principles account suffers from a crucial deficit: Because this approach couches both rules and principles in terms of prescriptive rules – all things considered in the former case, prima facie in the latter – the existence and importance of evaluative statements may be overlooked, to the detriment of analytical precision. The distinction between prescriptive rules (prima facie and all things considered) and evaluative statements therefore offers analytical tools that are preferable to the rules-and-principles approach and will form the basis of the following discussion.Footnote 55
How does the outlined legal practice of human rights fit with these findings? A three-step process forms the core of this practice, though there are many differences in particular legal systems: first, the determination of the scope of a right; second, the ascertainment of an interference; and third, the justification of the interference, the latter today in many jurisdictions including a proportionality analysis, part of which is a weighing and balancing exercise.
This practice is in line with the analytical approach proposed here, which distinguishes between prima facie and all things considered prescriptive rules and axiological propositions: The structure of human rights law – rights with a specific though abstract scope of protection and a regime of justifications – mirrors the step-by-step process of arriving from different prima facie norms at a norm all things considered, which finally enables a court or a state official to determine whether a certain act or omission has violated a right (all things considered) or not.
Value judgments can help to render the scope of rights more concrete: The perception that control over personal data is central to personal autonomy, for instance, can lead to an interpretation of privacy rights that gives them a distinct protective scope – for example, including (under certain circumstances) a right to be forgotten. In addition, such value judgments play an important role in weighing and balancing exercises, generating norms all things considered – for instance, by determining the weight of privacy (including a right to be forgotten) in relation to other rights such as economic freedoms in a concrete case.Footnote 56
Moral reflection about rights will take similar reflective steps if considering a moral right to privacy, for instance. It will try to define the content (or scope) of this right, think about possible kinds of interference with it and discuss its limits and thus the question of which interferences may be justified – for example, in the name of the moral right to economic self-determination (if such a moral right is assumed to exist). In such reflections, the distinctions between prescriptive rules and axiological judgments, between prima facie norms and norms all things considered, evidently will play a similar role as in legal arguments.
1.7 Rights and the Nature of Obligations
The nature of obligations has been controversially discussed in the current theory of human rights. This discussion takes its lead from a distinction from the Natural Law tradition that was restated prominently by Kant (who was, however, by no means its author): the distinction between perfect and imperfect obligations. According to Kant, there are perfect and imperfect obligations, both to oneself and to others. Perfect obligations do not allow for considerations of personal inclinations and interests and thus are fully specified, while imperfect obligations allow for such considerations and thus are not fully specified.Footnote 57 Another central (and, for the discussion, often decisive) source is J. S. Mill, who explicitly argued that imperfect duties do not create correlative claims.Footnote 58 Other interesting accounts with different conclusions attract less attention.Footnote 59
Some theorists argue that, in light of this approach, certain kinds of human rights – namely social rights – make no sense, whereas others argue that it is not the idea of social rights but this approach to obligations that is flawed.Footnote 60
To assess the merits of this debate, it is useful to note that this distinction can be interpreted as being in tune with the structural analysis outlined above: In Kant’s case, the way to identify perfect obligations (or rights) is to probe any proposition about possibly existing obligations (and rights) with Kant’s “testing device,”Footnote 61 the categorical imperative in its formal and material sense. The proposition would pass this test if it implied neither a contradiction nor a maxim that a person could not will to apply universally nor treated a person merely as a means to an end. If the respective norm fulfills these conditions, the determined concrete normative position is – in Kantian terms – a perfect obligation directed towards others.Footnote 62 For instance, to take a contemporary example, the duty to respect the right to be forgotten is a perfect obligation if it passes this test (perhaps under some qualifying conditions). The same holds for the (perfect) right to be forgotten itself. These concrete normative positions (the right to be forgotten and the duty to respect it) would be definite normative positions and thus rights and duties all things considered in the terminology adopted here.
The same result can be achieved by the step-by-step approach to determining the content of prima facie rights by defining the scope of the right and identifying the interferences and possible justifications for the interferences in concrete cases. This approach has the advantage of clarifying the sometimes-conflicting norms that have to be included in the normative deliberation, in particular the rights of others, and it facilitates the transparent and differentiated discussion of these rights.Footnote 63 The normative point of this process and a “testing device” such as the categorical imperative are congruent, however. Both aim to determine a universally justified order of rights.
What about moral obligations to help others and their legal siblings in the form of certain social rights? According to Kant, the duty-bearers enjoys discretion concerning the manner in which to discharge their obligation in this respect, because in this case considerations of their own inclinations are admissible. This does not mean that the interpretation of these obligations by the concrete actors in question need not be reconcilable with the categorical imperative, nor that the duty-bearers could reasonably conclude that there are no such obligations at all.Footnote 64 On the contrary, the actors are morally obliged to do something in this respect. Consequently, it seems to follow that other persons have the claim that the duty-bearers discharges this obligation in some kind of meaningful way, although the addressees of the obligation do not, of course, have a right to supererogatory action.Footnote 65 Such claims to others’ action can become well-defined and concrete all things considered: If children fall into a pool and you can save them at the expense of wet clothes, you are obliged to save them, and the children have the right that you do exactly that. A claim to the proper exercise of discretion about a certain kind of action, sometimes even narrowed down to an obligation to act in one well-defined way (getting the child out of the water), is an entirely well-defined concept – one that is incorporated, by the way, in much detail into the legal practice of several countries’ administrative laws.Footnote 66
What does this mean for the understanding of social rights? Is the traditional distinction between different forms of obligations at work here at odds with the idea of social rights as some maintain? Are such rights merely aspirational “manifesto rights?”Footnote 67 Given what just has been said about the nature of obligations towards others and the claims arising from them in Kant’s theory and the tradition of which it is part, this is far from obvious. A central issue here is claimability as a precondition for the existence of rights. Claimability implies that there is an identified (or at least identifiable) addressee of a right who is under the duty that the right creates. The existence of an addressee can have a moral and an institutionalized legal meaning. Given that duties are the necessary correlative of claims, there is indeed no right without an addressee in this sense. The specification of such an addressee can vary in terms of concreteness, however. Rights can address specifically identified or generically determined actors. Negative rights are often straightforward cases in this respect: Freedom of speech is a claimable right against a public authority, for instance. Positive rights are more difficult: If Serena collapses on the high street, she has a right to be helped by any bystander or anyone else in a position to help. This takes on practical importance in the debate about the existence of social rights. Here, too, the case can be straightforward, when legal social rights are addressed to a public authority, demanding some kind of identifiable action, although the public authority often enjoys discretion on how to discharge its responsibility.Footnote 68 In the political and moral spheres, the addressees of such rights are often generically identified. It makes sense to say that human beings suffering from hunger in the Global South have a moral right to international solidarity, though the addressees of this right are only vaguely defined. A reasonable interpretation of such a right implies a duty of relevant public authorities, both national and international, and of individual citizens – from financial donations to relief organizations to political efforts to improve the economic architecture of the international community.Footnote 69 These may be somewhat amorphous rights and duties, but they are still reasonably called such because they demand – entirely in line with Kant’s argument – action and identify violations of these rights, such as a total lack of action and concern for the plight of the poor. Such rights thus are not normatively empty or merely vaguely aspirational, as they imply identifiable normative commands and are felt to constitute such commands by many people around the world, sometimes even strongly so.Footnote 70
Even if this were not the case, there is no reason to redefine the concept of rights to accommodate social rights – they are rights if their nature can be properly understood in the terms of the features of rights outlined above (as argued here); otherwise, they are not.
1.8 The Peremptory Nature of Rights
These findings are helpful in a further respect, namely in understanding the sense in which one can speak of rights as trumps, to use a popular metaphor – that is, as normative positions that decisively exclude other normative considerations.Footnote 71
In light of what has been said earlier in this chapter, rights are trumps in this sense in concrete cases if there is a moral or legal right with a specific content and the weighing and balancing of this right with other rights or normatively relevant considerations and the values implied lead to the conclusion that this right takes precedence over these other normative considerations in the concrete case at hand. This includes arguments concerning rights of others, the common good or social welfare as a possible source of limitations of rights.
The value of a human person and the rights attached to this value form a central concern in this context. After all, one foundational tenet of human rights is a person’s value, their intrinsic worth, which means that the individual cannot be disregarded in the context of the justification of particular rights and the concretization of their content in the specific case at hand, not the least in weighing and balancing exercises.Footnote 72 As a result, there are certain protected individual goods where numbers do not count.
This can be illustrated by an example that is probably uncontroversial because it concerns the socially irrelevant issue of personal taste: Even if 100,000 people find a tie with a Swiss cow pattern abominable, this gives them no (moral, let alone legal) right to forbid someone else who does like it to wear this tie. There is no right not to be exposed to bad taste, although questions may arise even in this respect – for instance, if the cow were a holy animal in some belief system and a certain religious outlook resents their depiction on fashion items. Other standard examples exemplify the same point on a more serious level: Even saving the lives of five patients does not justify cutting open Peter, who is another healthy patient, to use his organs for this purpose.Footnote 73 The ultimate justification of this prohibition to use others as organ banks depends on the justification of the supreme value of individual human beings or, in contemporary human rights language, their dignity, a matter of significant difficulty, which will be discussed in Part II as part of our attempt to provide a plausible justificatory theory of human rights.
It may be necessary to qualify this principle for some extreme emergency situations, and not only from the perspective of consequentialism, but also from the point of view of (threshold) deontology. Winning the war against Nazi Germany most probably involved acts in which people with no responsibility for the unleashed aggression and crimes of Nazi Germany were killed (say, a resistance fighter in a bombing raid against a German city). This does not mean that there was any morally preferable alternative to the military defeat of Nazi Germany. There is no hidden contradiction here between the normative principles implied in this account, in particular the worth of individual persons. Such emergency situations are situated on a very particular plane and involve the question of how to act when the available path means doing not good, but simply as little harm as possible, given circumstances in which only tragic choices are on offer.
1.9 Group Rights
The matter of group rights is another question relevant for an analytical theory of rights. Here, the background consists not only of conceptual questions, but also of intrinsically political issues concerning the decent and just treatment of minorities and other collective entities regarded as embodying cultures or nations.
Do groups have rights in more than a metaphorical sense? It is useful to remember that artificial entities called “legal persons” form a standard tool used by legal systems to organize a normative order. These entities can enjoy rights, a fact that is uncontroversial. There has been a long debate on what these entities are, in particular whether they are real or fictitious. However, they serve a well-defined practical purpose. Such legal persons can be formed of large groups of persons, such as the legal person of a state or the legal person of the international organization called the EU. This tool offers many ways of accommodating the need to include certain groups of people in a wider political order, allowing, for instance, some kind of self-rule that considerably reduces the practical problems posed by group rights.
Groups as such, however, are ultimately not real entities beyond the individuals that form them at any given moment in time. If all lovers of rowing (regrettably) switched their interest to darts, there would be no group of rowing enthusiasts as such left. There are social structures with a certain degree of permanence that are usually thought to stay unchanged even if the members change, such as a rowing club or the Swiss Army. These entities are, however, dependent on the continuing social actions of their members that create and maintain them. If the members of the rowing club decide to dissolve the club, no right of the club is violated – it simply ceases to exist, both as a legal entity and as a fait social, to use Durkheim’s terminology. The same would hold for the Swiss Army if the Swiss citizens decided they would be better off without it. This is true for any group, including cultures and nations. If their members give up certain cultures – for instance, the militaristic culture of pre-1945 Germany (with good reason in this case) – no right of a group as such is interfered with. What may remain are abstract ideas, like the “essence of rowing” or the “content of pre-1945 German militarism,” but no entity that reasonably could be regarded as possessing rights. Rights, therefore, are bound to individuals. Group rights that are more than political rhetoric or slogans are derivative constructs that serve, if they are to be legitimate, the rights of individual persons to autonomous self-determination, in particular through and by a body politic and other forms of meaningful representation, and to the freedom to search for self-fulfillment in joint activities with others.Footnote 74 The politics behind the debate about the right to self-determination, which features prominently in international human rights law, illustrate the importance and controversial nature of these analytical findings. One core question is whether the right to self-determination is a tool to realize the rights of individuals or is independent of this purpose.Footnote 75 In particular, this point becomes relevant if the rights of individuals collide with (supposed) group rights – for example, the rights of women with group rights enforcing patriarchal group traditions. It strengthens the case of the rights of the individual considerably, because if group rights – properly understood as the rights of a plurality of persons – themselves have the purpose of bolstering individual rights, then the rights of groups as such cannot be turned into political weapons against the rights of individuals. We are simply moving onto the familiar terrain of conflicting rights and the necessity of their reconciliation.
1.10 Ethics, Legal Hermeneutics and Justification
A final remark on the relation of moral rights and legal rights: Kelsen famously attempted to rid the law of nonlegal influences, particularly ethical ones, not least because ethics are regarded as intrinsically contentious, subjective and thus detrimental to the law’s political goal of establishing an authoritative order based – in a democracy – on common, not subjective grounds.Footnote 76 This attempt cannot succeed. A realistic legal hermeneutic teaches us that legal rights are not wholly independent of the understanding of moral rights.Footnote 77 It will hardly be possible to delineate the scope of many important fundamental rights without recourse to an elementary account of what the particular right in question and fundamental rights in general are about. Open-textured norms such as human rights require interpretation and concretization. Interpretation will necessarily – whether explicitly or implicitly, knowingly or unknowingly – draw upon such more or less reflexive theories of fundamental rights that have an ethical dimension, among others.Footnote 78 Whatever one thinks of the jurisprudence of the ECtHR on the absolute prohibition of torture and its interpretation of Art. 3 ECHR in this respect, the argument for or against this understanding will include, whether one wants it to or not, intricate ethical arguments about the absolute or relative value of human life, the existence and scope of human dignity and the competing importance of other values – for example, the rights of third parties in cases where torture is used not for repressive means but to prevent harm to other persons, as in the leading case of the ECtHR on the matter.Footnote 79 None of this is stated in the positive law, but it is the result of its interpretation in the light of rich normative background assumptions.
In addition, and crucially, a catalogue of fundamental rights cannot be justified without ethical considerations, as these are the ultimate sources of normative justification. There is no bill of human rights that does not claim the justness of the rights it guarantees. Consequently, there can be no escape from ethics if we want to engage seriously with the law, and with human rights law in particular.
In light of these observations, it does not seem entirely outlandish to assume that a background theory of human rights is very useful for the project of interpreting existing human rights, determining their meaning in greater detail in the face of old and new challenges, developing the current ethics and law of human rights, evaluating their relation to any existing body of social rules, including the heterogenous set of norms referred to as ‘traditional values’,Footnote 80 critically assessing the status quo and addressing the important question of whether all rights that are protected as human rights in law are in fact legitimately regarded as human rights.Footnote 81 None of this calls the distinction of law and morality into question: Legal reflection and court decisions are not constraint-free intellectual enterprises. Legal doctrine is developed on the basis of a given body of positive law with the aim of influencing or even determining the action of norm-applying authorities, in particular authoritative court decisions. These decisions themselves, more or less openly discursive depending on the legal system, interpret the law of the land on the basis of positive law as it stands and are bound by said positive law. Not every well-justified normative position of human rights theory can therefore be interpreted into the body of human rights law, given its fragmented and limited scope.
These remarks are cursory, of course, and have left out many qualifications of rights, especially those of developed legal systems. But they suffice for the limited purpose at hand.
1.11 What Are We Talking About?
To sum up: Human rights are a subclass of subjective or claim rights. They are constituted by a set of normative incidents: claims, duties, privileges and no-rights. Claims, and duties, privileges and no-rights are necessarily correlated. Powers can form part of the content of these rights, which may protect the holder through immunities, too. The rights-holders are either all human beings or a subclass of all persons – for instance, the citizens of a state. In the former case, they are human rights in the narrow, proper sense. The term “human rights” understood in a wider sense is used to designate both cases, as is the term “fundamental rights.” In the following, it will be clear from the context which class of rights the term “human rights” refers to.
Human rights can be moral or legal. In both cases, they can be addressed to private persons, legal entities and public authorities. Their basic content is related to a limited class of goods, in particular life, bodily integrity, freedom, equality and nondiscrimination, access to the material provisions necessary for human existence and respect for human worth. A useful structural theory of rights distinguishes between prima facie rights and rights all things considered as a subclass of general and abstract prescriptive rules on the one hand and axiological statements ascertaining the value of something (e.g. of freedom) on the other. The current legal structure of human rights law mirrors this distinction. Rights are trumps if – all things considered – they invest a rights-holder with a definite claim to something and impose a corresponding duty on the addressee. The traditional distinction between perfect and imperfect obligations chimes with this analysis and does not provide any argument to deny the existence of social rights: There is no reason stemming from the analysis of the structure of rights – including the claimability of rights – that would speak against understanding social rights as proper rights. In particular, social rights create identifiable meaningful duties of the addressees. Group rights create no structurally different class of human rights as they are best understood as being reducible to the rights of individuals. Moral and legal rights need to be distinguished. The theory of moral rights can, however, enrich the interpretation of human rights and is necessary for their justification. The separation of ethics and law consequently does not mean that the ethical understanding of rights is irrelevant for the legal theory of rights.
It was against my wish that prisoner came to me at night, being a slave, I was afraid.
two white men came running torge the women and baby, they stabed the women and the baby and, and threw both of them over the bank in to the water. she said she heard the woman say, O my baby; she said when they [the survivors] gathered the dead, they found all the little ones were killed by being stabed, and many of the women were also killed [by] stabing … They called it the siland creek.
Darkness was here yesterday.
2.1 Apologizing for Genocide
In October 2007, an interesting meeting took place in the town of Omaruru in central Namibia. The heads of six Herero royal houses met members of the German von Trotha family, who had come to Namibia on a rather unusual mission. Their aim was to apologize for what is widely regarded and, since 2021, has been officially accepted by GermanyFootnote 1 as the first modern genocide in the technical legal sense of a mass killing with the specific intent to exterminate an ethnically or religiously defined group:Footnote 2 “We, the von Trotha family, are deeply ashamed of the terrible events that took place 100 years ago. Human rights were grossly abused that time,” Wolf-Thilo von Trotha said in this honorable attempt to give an honest account of a major crime.Footnote 3 Von Trotha is descended from the military commander of the German expedition forces that brutally subdued the 1904 Herero and Nama revolt against German colonial rule, carrying out mass shootings and driving the surviving members of the Herero into the desert with the explicit intent of exterminating them as an entire ethnic group. This campaign spearheaded other means of extermination, including concentration camps and inhumane practices such as medical experimentation, which later were brought to lethal perfection by the Nazis. Some 50,000–80,000 people were killed in this campaign. Notably, a Herero leader called for restraint during the revolt, asking that German women, children and missionaries not be killed, whereas General von Trotha explicitly told his troops to kill every Herero they could find.
Wolf-Thilo von Trotha’s statement about his ancestor’s deeds appears the obvious thing to say at such an occasion. And in moral terms, it clearly is. Yet it still invites us to engage in a moment of reflection. The German troops had come from the country of Kant well over 100 years after the Virginia Bill of Rights, the Declaration of Independence and the Déclaration du Droits de l’Homme et du Citoyen had made the idea of human rights explicit. Nevertheless, they clearly were thinking within the framework of what has been referred to in the Introduction as colonial relativism: Ethical concerns, including rights that applied to Europeans (or Germans), did not also apply to indigenous people in Africa. The Herero had no developed concept of human rights either. They had warred with neighboring peoples for dominance in the region for decades, engaging (like every other group) in other practices that today would be rightly criticized on ethical grounds. There is no reason to romanticize indigenous people or other collectives of human beings, and this goes for the Herero, too. Nevertheless, von Trotha’s statement seems to imply that the Herero had, for example, a right to life, irrespective of what the Germans assumed and of how the Herero themselves articulated the normative position they believed themselves in. It presupposes, too, that the Germans were the addressees of these rights and had duties stemming from this normative position. Von Trotha’s statement clearly posits that the Herero had these rights and the Germans these obligations, irrespective of the historic period and the framework of thought prevalent at the time. This statement understands human rights as a time-independent truth about a specific normative status of human beings – humans as the holders or addressees of rights – even if the rights-holders and addressees themselves have no or only a vague concept of it.
Such a statement, indisputable as it appears on first sight, is not easily reconcilable with certain tenets of contemporary theoretical and historical debates, according to which human rights are culturally relative, historically contingent and dependent upon a certain epistemic framework that itself has no claim to universality but is relative to a specific society at a given time. From this point of view, von Trotha’s statement and others like it are anachronistic and epistemologically naive.
This example already shows quite clearly that we need to ask what lessons the historical trajectory of the idea of human rights teaches about their origin and claims to justification. “How did the idea of human rights evolve?” is a central question for any inquiry into human rights.
There are two dimensions to this question: The first concerns the evolution of the principles of human rights, the normative propositions that posit their content and justification; the second concerns the faculty of human beings to conceive of these normative principles, to have epistemic access to them. In both cases, the problem of historical contingency arises. What steps were necessary to develop an explicit concept of human rights in ethics and law? What are the insights that are the preconditions for and what are the obstacles to conceiving of something such as human rights? What does history tell us about the modes of human understanding – prominently including the idea of reason – the exercise of which is supposed to lead to the conclusion that human rights are justified normative principles? Most importantly perhaps: How time- and culture-dependent is the ability to form the idea of human rights? Bacon famously held that truth is the daughter of time.Footnote 4 Does this mean that reason is historically indexed? Is the truth about human rights a daughter of time in this sense, too – more precisely, the daughter of our time, destined to fade away as new historical circumstances arise? Could a humanity legitimately stripped of rights be the truth of tomorrow? Or is there such a thing as an exercise of human understanding that is a child of but not bound entirely to the epistemic framework created by a particular epoch and therefore transcends it? Is this conceivable, or is it a naive illusion of the past, untenable after the many historicizations of human insights?Footnote 5 Bacon himself understood the ancient saying about the pedigree of truth as identifying time as a precondition of scientific progress: Sufficient time spent in scientific work would ultimately yield new forms of genuine understanding.Footnote 6 Has the long reflection on the justified claims of human beings provided us with such insights? Or, to put it in more specific terms: Was Wolf-Thilo von Trotha mistaken in his evaluation of what his ancestor had done to the Herero, or was he right to claim that at that time the Herero already had rights and the German troops duties that they violated, even though neither perpetrators nor victims probably had any conscious concept of such a normative status, let alone a status rendered explicit in human rights terms? Did Germany acknowledge its guilt for the genocide unnecessarily? Furthermore, did the Herero and the German soldiers possess the cognitive ability to understand the nature of the crime committed? Was it, at least potentially, within the reach of their understanding? Or were the soldiers and their genocidal commanders excused because they simply were unable to get the idea of the human rights of the Herero, given how history and society had shaped their moral thought?
This brings us to further important questions. In particular, what was the Herero’s subjective experience of their own situation? Was their ordeal limited to physical suffering in the desert, or did they also consider the actions of the German troops to be unjust, a moral outrage? Did they perhaps feel that they had a claim – conceived of in whatever form – not to be starved to death in the desert and that the Germans had a correlating duty to let them live? Were traces of the idea of rights (though not of human rights in current terms) thus present in their thought, or would it be an ahistorical anachronism to even consider this possible? Do we have to assume that the Herero were a blank slate in ethical terms because they had not partaken in the cultural development of European civilization, which would have provided them – for instance – with a concept of individuality and certain emotional capacities formed not least while reading novels, as some historians have argued?Footnote 7 But why did the German expeditionary forces (like other Europeans) behave so much worse than the Herero, despite coming from the country of Goethe and Beethoven?
This case is of additional interest because from a certain perspective it implies an encounter of different ages: The German troops came from one of the scientifically and culturally most advanced countries in Europe (well on its way, however, to barbarous wars and further genocides), while the Herero lived the life of a nomadic tribe. It is a common methodological assumption that we can learn something about the more remote human past from those groups whose current forms of life remain in certain respects similar to some of those of a bygone age even if one avoids the assumption that such groups are simply “contemporary ancestors,” without a complex history of their own, providing “direct windows on the past.”Footnote 8 Thus, Herero ethical thought is of substantial interest from a historical perspective, as it may help us to understand the basis from which the historical trajectory that led to the fully developed idea of human rights began.
Moreover, the Herero example is helpful in illustrating that these questions are of deep moral concern. In the end, the answers determine how the death of the Herero in the desert should be evaluated, particularly as to whether it was already wrong to kill people in such imperial enterprises at that time under those circumstances within those cultural frameworks of perpetrators and victims with those cognitive abilities. These questions are decisive, too, in determining whether it will continue to be wrong to commit such atrocities in the epochs to come, because they would violate human rights, regardless of what people in the future, who may be living under new forms of barbarism, may think. This future-oriented dimension of the problem – the question of whether human rights are valid only relative to the contingent belief system of a certain epoch – is not treated with much care in current debates.Footnote 9 However, the question of whether the historicization of human rights extends into the future or not is a very serious matter. Torture is prohibited in many constitutions and in ius cogens, as a peremptory norm of international law. Could this (legitimately) be different 100 years from now?
Understanding the historical emergence of human rights is a first decisive problem for the cognitive interests governing our inquiry. We need to address this problem if we are to avoid the fundamental fallacy of seeing the contingent products of historical processes as related to structures of the human mind. History may be the key to understanding human rights, not anything that has to do with the nature of human thinking, as influential contemporary theory maintains. If this is so, the historical inquiry already answers the question of the relation between mind and rights: History is all you need to know. Studies in moral epistemology, psychology and cognitive science that jump directly to assumptions about the natural properties of the human mind and their relation to human rights may thus be missing their target entirely because of the mind’s protean quality, the simple truth being that ideas of human rights are as historically relative as the forms of human understanding employed to gain normative insights. Both have taken as many shapes as Homer’s “Old Man of the Sea”Footnote 10 and will continue to do so in future.
What seems clear is that human rights are not simply a given of all normative human cultures. On the contrary, very many things that make up the idea of human rights and their practice are the products of very complex historical developments. We will return to the question of what we know about the normative evaluations of people such as the Herero when confronted with European savagery, but they certainly did not employ twenty-first-century human rights language to describe what was going on. There are complex early legal codes – such as the Code of Ur-Nammu or the Code of Hammurabi – that merit closer investigation to see what moral and legal ideas we can unearth in them.Footnote 11 But the search for a cuneiform inscription of a Sumerian Universal Declaration of Human Rights will – as already indicated – be a vain one.Footnote 12 These concrete rights evidently are the product of human beings’ long intellectual and practical quest for justice. This is true for the normative principles finally proclaimed and fought for as explicit political and legal demands in the revolutions of eighteenth-century America and France, and it is true for their evolving content. To take a very simple example: Freedom of the press is a bedrock human right, but it assumes that a press (and its contemporary digital equivalents) exist – a precondition that is hardly trivial in historical terms, presupposing not only technological innovations but also cultural developments such as the growth of a politically relevant public sphere.Footnote 13
What is more, the discovery that certain normative ideas or the social institutions that embody them are historically contingent is without doubt a central driving force of human liberation. Many repressive ideas and social arrangements have appeared in the guise of timeless truth or have been presented as derived from indubitable human nature, even though they represented nothing but the prejudice of their times – from the inferiority of persons of a certain skin color to the subjugation of women. Historical analysis is a central precondition for liberating human beings from such chains of the past.
The question to be answered is thus not whether the history of human rights matters for their theory, but whether these rights are nothing but a product of history – whether historical analysis is not only a necessary but also a sufficient condition to explain their current reality and influence and perhaps even to justify them, as some maintain.Footnote 14
This necessary inquiry into the history of human rights only appears an easy and straightforward task on the surface, however, and not merely because the historical development of human rights as such is far from comprehensively researched. This is one problem, to be sure. In addition, however, the very object of analysis poses substantial difficulties and is a source of potential misunderstanding. What is this thing whose history we seek to scrutinize? Is it an idea – if so, what kind of idea? Is it a social fact in a sociological sense? Is it a moral concept, a legal institution or both? Are only human rights in the sense of mandatory public international law of interest, or are other legal forms, too, such as constitutional rights? What does legal pluralism tell us about the nature of human rights? What social norms of societies’ “living law” should be included? To what entity does the term “moral human right” refer? As the conceptual clarifications of the Introduction and Chapter 1 have shown, there are substantial problems to be solved here. Our results will help prevent us from becoming lost in the maze that these questions form.
Another important concern is: Are there predecessors to human rights in the (itself controversial) contemporary sense that are not human rights but that still need to be considered in the history of human rights, and, if so, what criteria mark them as relevant? What is the threshold for including a normative phenomenon in the history of human rights?
As will become clear over the course of the following remarks, all of these questions and their different possible answers have substantial impacts on the kind of human rights history told and therefore require critical reflection. Furthermore, the details of the method of historical investigation are important, too, and they are rife with problems that also demand scrutiny, not least because some of the theories and findings advanced in recent work in this field are profoundly influenced by certain background assumptions on how to study human rights history. Method determines content, and not always fruitfully so. It is thus unfortunate that these issues are not always discussed with sufficient care. Consequently, we need to pay significant attention to these questions first.
Our methodological reflection will form the basis for some exemplary discussions of relevant elements of the history of human rights that will pave the way to the central conclusion of this part of the book: History is key to the study of human rights but necessarily leads beyond its own confines to the theory of justification and the structural (not just historical) analysis of the faculties of human understanding that open the epistemic door to the cognition of human rights.
2.2 How to Decipher the History of Human Rights?
2.2.1 History and Human Rights Revisionism
Clarifying standards for the proper study of human rights history is particularly relevant to current debate. This is because the history of human rights has become a significant battleground in the political, ethical and philosophical war being waged around human rights in general – a war that has shaken the normative edifice established after the World War II to its foundations. In this conflict, the historical origins of human rights are used to question the very legitimacy of these rights and their normative raison d’être.
One central feature of these ongoing debates about the history of human rights is the use of historical analysis with the critical intention of unveiling the dark history of rights. Human rights are taken not to be universal aspirations of humankind, “opening the door to closed societies,”Footnote 15 challenging illegitimate authority and empowering the weak, but instead as shrewd plots of partisan politics and politicized religion.Footnote 16 This is the challenge posed by the historical, genealogical human rights revisionism mentioned above. In this view, the contingent origin of human rights is not just an unsurprising historical fact, given that everything has to originate in a particular point in space and time, but the key to a dark heritage showing that they are not a “last utopia.” On the contrary, human rights ultimately are delegitimized by their reactionary, religiously and culturally biased origin in Christian doctrine or in neoliberal ideology, despite their various transformations, which, so the argument goes, ultimately are of doubtful effect.Footnote 17
This perspective may appear surprising, because a historical development as such cannot justify or delegitimize a normative institution. After all, the facticity of a historical trajectory provides no normative reason to accept or reject its results. The course of history is one thing, the justification of the products of history quite another, not least in the case of human rights. In addition, the widespread perception is that human rights have ecumenical features – they transcend the boundaries of philosophical confessions and express a common normative perspective for human beings that seems to be founded on something deeper than the false beliefs of a few contingent actors.
Moreover, not many social institutions, in particular those of the law, have sources that are entirely above moral doubt (to put it mildly). If we look at issues directly linked to human rights history, not least constitution making, examples readily present themselves. Nobody who has studied such processes will claim that central norms, including rights catalogues, were the products of pure, benevolent, justice-oriented practical thought. Germany’s Basic Law is widely hailed as a particularly well-drafted constitutional instrument that has become one of the most influential constitutions in the international context. Many admirable actors had a role in the drafting process. But other motives were at play, too, particularly the desire to make it possible for Germany to reenter the international community after the fall of the Third Reich. Some of those involved may have regarded a democratic, rights-bound, dignity-based form of government as nothing more than the price to pay for this end, a high price perhaps, but – given the total military, political and moral defeat of the German Reich – one to which there was no alternative. Knowledge of these influences certainly is important. But do they delegitimize the human rights-based democratic order of the Basic Law? What about the drafters of the US Constitution? Do the questionable political intentions of some, which partly shaped the Constitution’s content, permanently delegitimize the result, irrespective of the further development of the understanding of this remarkable document?
Are not similar conclusions justified in the case of the drafting of other legal instruments important for the history of human rights? Did the role of the racist South African politician Smuts in the drafting process of the preamble of the UN Charter irredeemably contaminate the concepts of human dignity and human rights that were its products? Are not other factors far more important? Were these concepts ultimately wrested from the hands of racist imperialists like Smuts who tried to abuse them?Footnote 18 Is this the reason why the South African delegation ultimately opposed (unsuccessfully) the inclusion of a reference to the equality of human dignity and of all human rights in the Universal Declaration in an attempt to justify lesser rights for some groups of persons?Footnote 19
The United Nations (UN) with its veto system of the Security Council’s permanent members and accommodation of colonial empires was not designed with the single purpose of promoting the egalitarian good of the world community of human beings,Footnote 20 nor were the Council of Europe or the ECHR crafted as pure embodiments of the human rights idea, as the latter instrument’s colonial exemption clause illustrates.Footnote 21 What is more, nation states, international organizations and the law they create continue to be formed by asymmetrical power relations, narrowly defined interests, politics at the expense of (weaker) others and repressive ideologies without there being any prospect of these influences losing any of their force in the years to come. Does this mean that nothing good came out of the national and international human rights systems? Most importantly: Does this show that there is no way for critical thought and legal and political work to develop what exists into a meaningful system of human rights protection, a system with an effect that sometimes runs counter to the intentions of some contributors to the making of legal human rights orders and their institutional framework?Footnote 22
The strong arguments not to confuse genealogy and justification notwithstanding, in light of these questions it nevertheless is necessary to ask: Do these critical voices perhaps still have a point? Does the idea of human rights have doubtful roots? Is there a skeleton in the closet we must learn to face? If so – what are the consequences for the justification of human rights? Are human rights indeed delegitimized by their dark origins, which show that they are just a piece of harmful ideology? This would have important consequences for the research object of interest here, because it makes a difference whether we are studying a piece of political ideology or ideas with a justified claim to moral rightness – and the latter claim is what forms the very foundation upon which human rights stand.
2.2.2 Concepts and Methods of Inquiry
A first problem for historical inquiry already has been addressed: the concept of human rights, a key element in determining the object whose history is to be investigated. To reiterate our conceptual conclusions: Human rights are most plausibly understood as an intricate web of normative incidents, the ensemble of which determines in important respects the normative positions all human beings enjoy. Through claims and related duties that obligate everyone at least as moral rights, through privileges and through no-rights, or, in other words, the absence of duties towards others curtailing the exercise of these privileges, human rights establish a normatively protected space for the autonomous existence and action of the individuals whose goods they safeguard.Footnote 23 Powers and immunities can form the content of such normative positions. With these normative means, rights secure substantial values such as human dignity, life, integrity, freedom, equality and subsistence in morality and in law for all human beings. They create for all the equally shared opportunity to lead an autonomous human life. The assumption that forms the foundation of their legitimacy is that humans count – that they are not just beings of little worth or even of no concern at all.
The rights through which these normative principles are protected are secured as moral claims and legal norms and institutions that are deeply justified. This claim to deep justification is a central element of the human rights idea: Human rights bind their addressees and thus create legitimate normative burdens for third parties, namely human beings and other normatively accountable entities, most importantly legal subjects, including but not limited to states. The burdens human rights impose are of a particular nature, as they originate in the autonomous critical reflection of the agents themselves as a moral category that is then enforced by law. They create a burden on their addressees but only in a very specific sense, as this burden ultimately is imposed not by others, but by the moral understanding of human beings themselves: It is the offspring of reflective self-rule, not of forced submission to the command of others; the fruit of autonomy, not heteronomy, and thus a burden only in the sense of an obligation to be wholeheartedly embraced.
These findings represent useful tools for historical research. This means that a history of human rights needs to concern itself with three issues in particular: first, the concept of a right as foundational normative category; second, the idea of legitimately protected human liberty, equality, solidarity and worth as something ‘right’ in an objective sense; and third, the idea that liberty, equality, solidarity and worth should be spelled out by normative positions of rights that apply universally to all humans, and not only by some other political (or normative) means.
This concept of human rights forms an ideal-typical kind of instrument for historical analysis. It is a tool that can aid in the decision as to whether to include a normative phenomenon in the history of human rights or not.Footnote 24
A fully-fledged analytical theory of rights (not just human rights) is the product of twentieth-century thinking and – in one of its constitutive contributions, as we have seen – is motivated by the desire to clarify the ambiguous use of the concept of a subjective right in law, which presupposes that at least some issues were not fully understood beforehand. This does not mean, however, that this kind of analysis has no clearly identifiable predecessors. As noted above, the Natural Law tradition notably captured central aspects of this idea, sometimes with admirable precision, although it failed to make entirely clear what the idea of rights is about – much as we today may still appear entangled in misunderstandings from the perspective of future, better analyses of the matter.
Fully explicit human rights as moral ideas and – even more so – as legal concepts, practices and institutions are equally recent in nature. Nevertheless, there is much to discover in the more distant past that belongs in a properly complex history of rights in general and human rights in particular. The discussion that follows will illustrate this observation in some detail.
Another relevant point concerns what we might call the difference between the justification of human rights by the humanity of their bearers on the one hand and the inclusion of all beings belonging to the human species in the set of rights-holders on the other. This distinction is useful as it helps to clarify two separate steps of central importance in the process of the development and realization of these rights. The first step justifies human rights with reference to the normative relevance of something specific about human beings, “human nature” or the “human condition,” for instance. The second step determines who qualifies as fully human. Taking the first step does not necessarily mean that the second step also will be taken in a justifiable fashion. Very many human beings were consequently excluded from holding human rights not because there was no concept of human rights as rights of all humans, but because the respective group did not qualify as fully human – women, slaves and religious minorities are classic examples of this. In addition, another relevant issue is frequently neglected when attention focuses first and foremost on classic cases of the unjustified exclusion of certain groups of people: There is also the recurring question of whether human rights have now not become over-inclusive. After all, some argue, not all human beings legitimately enjoy human rights. Influential voices doubt, for example, that infants, people in a permanent coma and humans with certain disabilities or of a certain age justifiably can be regarded as holders of human rights, as many legal systems posit.Footnote 25 The debate about the status of embryos or fetuses is another illustration of the abidingly controversial question of the inclusion or exclusion of potential rights-holders in a human rights regime. These arguments for the exclusion of certain groups of people from protection by human rights do not necessarily doubt that the humanity of humans is a central argument for the justification of human rights. They may even emphasize this point with verve and passion. However, they argue that these groups lack certain properties that are constitutive of full humanity, such as normative agency.Footnote 26
A history of human rights has to account for these complexities. Differentiating between these two steps of justification thus serves as a central tool for producing a fine-grained historical analysis. A thinker, a practice, an institution may be very important for the development of rights based on the humanity of human beings but may have failed dramatically to include all beings that manifestly are fully human. Otherwise we would even have to exclude the classical human rights documents of the eighteenth century from the history of human rights because they disregarded a great many people, and entirely implausibly so. A history of human rights that limits itself to fully inclusive but simultaneously not over-inclusive human rights (assuming that we already know what that means) would be a deficient history of human rights.
The incremental nature of the development of human rights (incremental not implying direction, continuousness or irreversibility) encourages us to ask further questions – for example, about rights that were not justified simply by the bearer’s humanity, but because of some other status, such as by being a “free man” of a kingdom, as in the Magna Carta. How did such instruments – although evidently not about human rights as understood here – contribute to the history of human rights? Not at all? Or did they pave the way for rights with a more inclusive personal scope by establishing claims for some kinds of people and thereby giving rise to a question with considerable political and historical impact – why only for them and not for others as well? Why not these rights for all? Once again, this question has its modern equivalents. For instance, one major issue of current human rights law is the question of the extraterritorial application of human rights. This issue concerns a state’s interference with rights with a cross-border effect. The killing of civilians in the Iraq War by British troops is an important example of this problem from the case law of the ECtHR.Footnote 27 Were the soldiers bound by the ECHR, even though they were acting in Iraq and not in Europe? Were the civilians in Iraq as protected as they would have been in Britain? Here, too, the question – why rights for some (the Europeans) but not for others (the Iraqis)? – demands an answer that propels the inclusiveness of human rights forward.
Much current history of human rights is concerned with the (post–World War II) institutionalization of international human rights. This is an important subject. But the history of the institutionalization of international human rights is not the history of human rights. It is just one subchapter in a grander epic. First, in the legal sphere, there is the history of the institutionalization of human rights on the level of national constitutions. As already indicated, at the core of the current international architecture of human rights lies a two-tier system of protection on the national level and of complementary protection on the international level. A history of human rights that fails to pay attention to the primary tier of the system could hardly be assumed to exhaust the subject’s history. Second, the history of human rights is not limited to the history of the process of making them a political and – most difficult of all – a legal reality. This history is intriguing and rightly forms the object of profound and innovative research. Unsurprisingly, it is influenced by a plethora of factors such as power, ideology, interests both material and nonmaterial, outstanding personalities and their sometimes-remarkable impact, the tides of social passions and beliefs and the like. But the processes through which human rights become a political and legal reality are likewise only one part of the history of human rights. They presuppose an idea, one so compelling that people have tried to make its vision politically relevant and even legally binding, first on the national, then on the international level, sometimes at the cost of their lives.
How to trace such a remarkable and powerful idea in history? When and where were the seeds of the empire of rights sown in people’s minds? How many times did its harvests wither in the fields of human folly, lust for power and greed? Why did this idea finally develop into a rich crop? Why did it conquer the Earth more fully than virtually any other moral and legal idea in human history? What does this remarkable element of human history tell us about the mind of the creature that developed this idea?
An important step in any inquiry into this matter is not to commit the methodological fallacy of looking for words or terms such as rights, droits, Rechte, ius and so forth, but to search for the meaning of these historical and current terms. We have outlined the central dimensions of the idea of human rights above. A proper history of human and fundamental rights needs to look at all of these dimensions and see whether, how and when they overlap. The moral and legal manifestations of the category of rights therefore form part of this history. The history of freedom as a value is another part, as is the history of the idea that human beings enjoy intrinsic worth and thus dignity, as is the history of equality and solidarity. How did these values become central for human beings’ normative aspirations? What suggestions are there that these values were thought of as related to rights? What clues are there that these rights were ascribed to beings with certain well-qualified properties, a thought that finally turned out to be important for the fully developed idea of human rights, namely that all humans enjoy these rights by virtue of their humanity, irrespective of the differences that may exist between them? As highlighted, the latter can only be achieved by processes that include unjustifiably excluded groups of beings, such as women and slaves, among those who are acknowledged to be fully endowed with these properties – for example, with the capacity for autonomous self-determination.
Consequently, when thinking about the history of ideas of human rights, we have to search for both explicit and (the deeper we dig) implicit expressions of these ideas.
These implicit expressions may take the form of normative propositions other than rights, most importantly normative commands. It is rash to assume that an ethical or legal code containing only commands has nothing to say about rights. The command “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” is, for instance, self-evidently understood as the legal positivizing of the separation of religion and state (no establishment clause) and a (constitutionally key) subjective right. The question arises for other archetypal commands, too. For example, in the case of the Decalogue, the question is: Do its prescriptions obligate its addressees only in relation to God?Footnote 28 Or do they entail a normative claim of those who would suffer from the violation of the commandments, as others have argued?Footnote 29 Take, for instance, “You shall not steal.” What is the normative position of the potential victims of stealing? Is there none? Or are normative incidents applicable to them? Do they perhaps even have a claim that nothing be stolen from them? There is certainly a very strong argument for the latter. It seems hard to conceptualize that somebody is under a duty not to steal something while at the same time the owner has no correlative claim that this not happen because there is only an obligation to God.
Unsurprisingly, this possibility not only has been observed by historical studies, but also has been debated specifically in the context of the role of subjective rights in Law, prominently, for instance, in Jewish Law.Footnote 30 Similar arguments can be advanced for other normative systems formulated in terms of commands.Footnote 31 Some examples of this will cross our path over the course of this inquiry.
To imply a right through other normative propositions is but one way to refer to the incidents making up a right, however. We need to broaden our perspective further to become sensitive to implicit expressions of normative ideas, whatever form they may take. This move is crucial not least to avoid another fallacy: the fallacy of intellectual and cultural – more precisely, Western – elitism. Even today, there are people who lack words for human rights but do not lack the central idea, both as regards the normative form and as regards their essential content. An illiterate woman – like the Herero of 1904 – who is mistreated and perhaps raped by military forces may not be able to express the normative claims she thinks she justifiably has in Hohfeldian terms, nor their content with the technical language of Kantian conceptions of dignity, but she may, quite rightly, have the idea, in whatever obscure form, that what is happening to her is not right, that she should be free to be left alone, to not have her body and inner self harmed by such acts, that she, as a human being, can rightly demand not to be treated like this, neither by state forces nor by private parties, and that everybody is obliged to abstain from hurting her in these pernicious ways. It would be a gross and indeed appalling failure of any theory of human rights to not take note of this possibility and account for it.
The same is evidently true of historical perspectives. It is important to ask what human beings thought, felt and experienced during the “Scramble for Africa,” when they were attacked, subjugated or enslaved. There are some intriguing sources, including oral history, that give a glimpse of the injustice felt and that should not be ignored just because they are not formulated in the technical language of an Amnesty International report.
History is fragmented in more than one sense. We reconstruct both history in general and intellectual history on the basis of the shards left by the destructive forces of the past, such as war, ignorance, superstition and accidents. Moreover, many voices in this history of ideas have been silenced. We know what Aristotle and Locke thought about slavery, but not whether the slaves of their time agreed with their stance. The disenfranchisement of women means that half of the human population is excluded almost totally from this history. To conclude from the absence of voices advocating the rights of women at a given time that there is no interesting history of this idea before these rights were explicitly demanded during the eighteenth century may lead to a very selective account of this crucial dimension of the development of human rights.
It is thus not sufficient (though useful) to enter terms into search engines, to search digitized historical texts for occurrences of terms such as rights, Rechte, ius, droit and so on if we aspire to write an intellectual history of the idea of fundamental and human rights.Footnote 32 We need to look for this idea, or at least for central elements of it, and not only in the canonical texts of high culture, but also in the social practices and not least the struggles of ordinary human beings who over the course of history on many occasions have manifested their belief that they enjoy a particular normative position, a justifiably claimable permission to do or not do something and to have the central goods of their life protected while others were under a duty to act accordingly.
The aesthetic self-representation and self-appropriation of human existence in art is another source of insight. A history of human rights without at least a sense of what has been expressed (e.g. about human dignity in the aesthetic sphere) will miss a crucial aspect of the development of such ideas and some of their intriguing expressions. Odysseus’ encounter with the ephemeral shade of his mother in the underworld and what it tells us about the meaning of mortality, the suffering of Euripides’ Women of Troy, the mourning of the seated, medieval terracotta figures of the Niger delta, Scheherazade’s songs against death, Bashō’s farewell noteFootnote 33 or the rebellious defiance of the upright figure with stigmata in front of the firing squad in Goya’s El 3 de mayo de 1808 en Madrid are not entirely irrelevant to the question of whether dignity is a property of the human condition. Giacometti’s later sculptures are equally important for this kind of self-reflection, his aesthetic vision decisively shaped by the catastrophes of the first half of the twentieth century.Footnote 34 The same holds true – to cite a last example – of Camus’ tender description of the world of the illiterate, violent, deprived and desperate poor of colonial Algiers (his family) and their experience of life.Footnote 35
The full meaning of human dignity is not something we learn in philosophical seminars and courses at law faculties about human rights law, important as these are to clarify ethical and legal thought and cultivate certain important moral feelings. Our understanding of human worth is something that grows as part of a lived life and our experience of what this entails. Something similar is true of the growth of the idea of human rights. This idea is no minor thing, and many sources – systematic thought, social struggles, artistic expression – have contributed to it. A history of this idea and its political and legal manifestations needs to remain mindful of this fact.
In recent times, increasing effort has been made to examine critically the biases and limitations of classical elements of legal thought and to do justice to other traditions of practical philosophy outside the so-called Western tradition. This well-justified endeavor adds yet another dimension of complexity to the scope of the history of human rights.
These observations mean that deciding whether or not to include a normative idea or institution in a history of human rights requires us to answer difficult questions. Not all of these answers will be indisputable, and there will be borderline cases. However, broadening the inquiry to ask such questions is a key task of a differentiated history of human rights that hopes to do justice to the richness of its subject.
2.2.3 Conceptions of History
There is yet another issue to be addressed: the concept and conception of history that guide historical research, which turn out to be of significant importance for the inquiry into rights and human thought.
This is by no means straightforward. What human history is and how it can be reconstructed form the subject of profound debate. For the purpose of a history of human rights conceptualized in sufficiently differentiated terms, the following remarks may be helpful to illuminate some often-tacit background assumptions of the current historical analysis of human rights.
The first problem is whether history is a gradual, continuous evolution. Within this conception of history, an idea such as human rights is invented at a certain determinable moment in time and then becomes a possible foundation of or influence on further cultural developments, which in turn shape its future content. One important element of this perspective is often (though not necessarily) the assumption that there are no a priori foundations of human cultural processes; human existence is a blank slate, determined by its protean nature,Footnote 36 the capacity to form any kind of culture, to mold human existence in any form, whatever it may be.Footnote 37 Humans are their own continuous creation through and through, so to speak, which implies that the current conception of being human may disappear as it was created at some point in time, like a face drawn in the sand and washed away by the sea.Footnote 38
Anything that now is regarded as foundational for human existence and culture has thus been invented at some point in history. To use an example relevant for the history of human rights: Human beings have no natural sense of individuality. Individuality originated in medieval thought,Footnote 39 as some have argued, or in the Renaissance, as others think,Footnote 40 but is in any case highly culture specific, not a universal feature of humanity. From this point of view, the Herero dying in the desert possibly had no sense of individuality because they had not benefited from European cultural development.
Some versions of this conception of history may be teleological, but today the emphasis usually will lie on the importance of structure, path-dependent development and contingencies. Conceptions of something unchangeable, something eternal, are, in Walter Benjamin’s expression, merely a “ruffle on a dress” of thought, not an idea relevant for conceptions of history.Footnote 41
An alternative view emphasizes the element of discontinuity in history. This model treats skeptically the idea of lines of development that run through centuries, let alone through all of human history. There are no overarching developments connecting different ages and historical cultural formations. The people of the past and their lifeworlds are understood as radically different from others, including our own (whoever “we” may be). To think otherwise means to fall prey to naive anachronisms. The concept of justice found in antiquity, for instance, is thus not something that could inform us today. It is born of its time, and any possibility of understanding it ended with the passing of that epoch. Attempts to connect the lifeworld of the past with current forms of existence lead to distortions of both – of the past because it is reconstructed wrongly using the conceptual means of the present, and of the present because its meaning is established in the light of incongruous concepts of the past. Adherents of this conception of history also mostly understand the infinite malleability of human beings as their defining property.
Yet another approach holds that ideas, institutions, entire forms of life can develop, flourish for a while and then be lost again. From this point of view, it is implausible to assume that good ideas, promising forms of life and useful institutions necessarily become a historical reality and remain so forever having once established themselves. They can simply be suppressed by force, possibly for a long period of time, or subdued by other powers – for example, by the victory of the ignorance, superstition or the partisan interests of powerful groups, individuals or political mass movements. They can also simply be forgotten. But they can be rediscovered as well and reasserted under new historical circumstances. They may have lain dormant, remembered only by a few if not lost in oblivion, not waking to full life until their day finally dawned. Similar ideas, institutions and forms of life can be developed independently at different times and places. Therefore, a time can speak a language that a later time is able to understand quite well, despite there not necessarily being an unbroken link of continuous development between the two.
These competing pictures of history lead to the question of what exactly makes this course of events a human history. Is there something species-specific about this history? This question is not particularly far-fetched, for of the many other species that have populated and continue to populate this Earth, no other has undergone any development remotely like the history of human beings. Bonobos or dolphins are admirably complex creatures, with the ability to learn and astonishing acquired skills, some of which are even handed down to new generations (think, for instance, of the hunting techniques of orcas), but none is a historical creature in the way that human beings are. It is safe to guess that bonobos live much the same as they lived a million years ago, whereas human forms of life in comparison have changed quite radically in the 100,000 years that human beings have been shaping their life on Earth. Consequently, there must be something about human beings that is at the core of this very particular history. But what is it? Is this human history best explained by relying solely on the culture-building faculty of human beings? This faculty certainly exists. Nobody doubts that one of the striking qualities of human beings is their creativity, the ability to transcend – unlike other organisms – instinct-driven ways of behavior and to constantly transform their ways of life. That is why any form of biological, genetic determinism and reductionism is so way off the mark. But what is the foundation for this creativity and the specific characteristics of human existence in which this creativity unfolds? Does a richer concept of human nature, in particular a thicker theory of the higher mental faculties of human beings, help to explain some of these characteristics and thus contribute to the understanding of particular properties of human history?
Note that this latter conception is the conception of a radical epistemic egalitarianism. It takes as a heuristic starting point the assumption that human beings share exactly the same creative intellectual and emotional wealth wherever they are born, in whatever cultural circumstances they are brought up and live, whatever skin color, sex, sexual orientation or other surface characteristic they may have and in what particular time they live. From this perspective, a person with the specific culture of a tribe in the Congo Basin in 1900 or the pastoral lifestyle of the Herero enjoys substantially the same set of properties, in particular mental faculties, as Albert Einstein, working on relativity at that time, or an illiterate female bricklayer in today’s Delhi. To be sure, there are individual variations – for example, sadly, between Albert Einstein and the author of this text. But these are not differences that transcend the common bond of a shared set of properties that make all humans human, whether they are hunter-gatherers, scientists, bricklayers or confused theoreticians of human rights.
It is important to underline that this is not equally so for anthropological assumptions that take the total malleability of human beings for granted. From this point of view, persons of different times and cultures will not necessarily have the same mental capacities, because certain elements of the human mental world are the product of cultural constructions. People with a certain cultural background (e.g. European) may have certain concepts that others (say, people of the Congo Basin, or the Herero) lack. These questions are particularly relevant for the history of human rights. If one assumes, for example, that human beings have no concept of their individual selves or of separate bodies apart from certain cultural developments,Footnote 42 that even “translated into brain changes,”Footnote 43 there is basically no point in searching for rights that protect individuality before cultural developments actually define individuality as such. The justification at least of certain rights designed to protect individuality, such as privacy rights, depends upon individuality being a meaningful concept. Accordingly, some histories make the development of individuality a precondition for the conceptualization of the idea of human rights.Footnote 44 Even one of the intellectually and morally most impressive accounts of the evils of totalitarianism reveals more than mere traces of this approach. Hannah Arendt condemns unambiguously “the senseless massacre of native tribes” in Africa and other crimes of colonialism and imperialism.Footnote 45 The indigenous people of Africa, however, are depicted as beings without culture and without a human world (Weltlosigkeit) and thus devoid of full humanity: “They were, as it were, ‘natural’ human beings who lacked the specifically human character, the specifically human reality, so that when European men massacred them they somehow were not aware that they had committed murder. … The great horror which had seized European men at their first confrontation with native life was stimulated by precisely this touch of inhumanity among human beings who apparently were as much a part of nature as wild animals.”Footnote 46
If culture is all there is in a human being, and the only truly humanizing culture is a culture similar to that which developed in Europe, a human being without such a culture is nothing at all – this is the dangerous conclusion looming in the background.
If we are open to the possibility that something like a concept of selfhood develops naturally in all human beings, the picture looks quite different, not only for the theory of the justification of human rights, but also for the conceptualization of their history, including the sense of tragedy with which we learn about this history. If there is a case for the individuality of hunter-gatherers in the Congo Basin or of nomadic herdsmen in Namibia, their suffering under Belgian rule or death in the desert at the hands of the German colonial forces gains only more significance. The obvious danger of cultural bias and perhaps even of worth ideologies looms large in the denial of full humanity to people without a specific cultural past, as the history that is supposed to constitute humanity or to have produced such concepts as individuality is the history of Europe or the West, thus excluding other cultural trajectories, importantly those of the victims of European cruelty and greed.
Are these conceptions of history fictions or straw men? It does not seem so. There are various examples of historical accounts of human rights or human history in general that imply important features of these different approaches, some of which have already been mentioned and some of which will still cross our path. When engaging with any particular account of human rights, it consequently is useful to ask which background assumptions guide the research in question and how they may color the analysis.
How to decide between these conceptions of history? The question of what history is like cannot be answered on a priori grounds. We cannot know how history unfolded before we have studied it – advisably without an a priori conception that is immune against falsification.
This open-mindedness should apply likewise to the sketched anthropological assumptions underlying the writing of history. Perhaps human beings of other epochs or from certain contemporary cultures were or are completely different from us (the question of course being – who is “us”?) – with no comparable modes of thought and underlying mental faculties formed by history. Perhaps they had and have no conception of a self, of individuality, of the separateness of one’s own body or any other such feature relevant for the idea of human rights. Perhaps, however, quite to the contrary, human beings from other epochs or cultures were or are very much like us in important respects (in this case – irrespective of who is “us”). Possibly humans share certain modes of thought and naturally and inevitably develop a concept of individuality as they develop an upright posture or (it seems) a concept of three-dimensional space as a framework of spatial orientation.
Again, neither of these theories is an a priori truth. Both form a hypothesis about human nature that is perhaps right, perhaps wrong. It is particularly important to underline that the assumption of the infinite malleability of human beings implies as many substantial hypotheses about human nature as any other theory. These are assumptions about universal properties of human beings, of all cultures and all times: From this point of view, all human beings share the property of malleability, a protean nature. This is a proposition about a substantial character of the species. The malleability thesis is not anthropologically neutral or “thin” in any kind of relevant sense, as it posits well-defined, rich, natural cognitive properties of human beings, such as a general ability to learn. There is thus no theory or history of human rights without a theory of human nature. The only question is what kind of theory of human nature one defends or implies and how well-grounded it is. This point is of some importance and will concern us throughout this study.
It follows that there is nothing outlandish about asking whether a different concept of human nature than the one that the infinite malleability thesis implies may help to formulate interesting research questions for the inquiry into the history of human rights. We might wonder, for instance, whether there are no indications in history that human beings have always been reasoning, moral, sentient, self-conscious, autonomous and liberty-seeking beings yearning for justice, respect and recognition. There is some evidence that speaks for seriously considering this hypothesis, such as the testimony of art and not least the social struggles in human history. The search for justice and freedom is not a prerogative of European modernity. In concrete terms, this would mean, for example, that torture hurt as much and was just as humiliating in 2022 as in 1786 or in 500 bce, that liberty meant something to human beings throughout time (at least after they had experienced it) and that slavery was never a form of life merrily and justifiably accepted by human beings. From this perspective, the mourning of the Women of Troy and the real experience it stands for is not incomprehensible noise but resonates in an uncannily familiar manner with the later history of the subjugation of women.
The history of human rights is important for the relation of mind and rights, because, as explained above, we cannot study this topic with historical naivety about the genesis of the ideas and institutions of human rights. But not only that: Conversely, clarifying the relation of mind and rights is in turn highly relevant for the history of human rights itself, because it contributes to strengthening the foundations of the anthropological assumptions that guide this research. Perhaps the theory arguing for the total malleability of human nature is on the wrong track, and consequently the historical account based on this assumption is, too. Historiography and substantial theories of the human mind are of mutual importance for one another: The former casts light upon the historical making of human rights, the latter upon the anthropological foundations of this process.
A final remark about problems of the method of inquiry: The history of human rights is the history of a moral idea and the legal institutions that limit power and privilege and therefore challenge many actors in a given society, including world society. It is thus a history not of benign reflection and good deeds but of often-dirty struggles for social might and material goods that lurk in the background, and sometimes advance into the foreground, too. Furthermore, it is the project of humans and thus of beings who are fallible and often fall prey to error and actions that, even if well-intended, may entangle the actors in guilt and crime.
The history of human rights consequently must be the history of often very mixed achievements, of slow and discontinuous developments, of dead-end roads and noble ideas buried in tragedy. It must be a history of ideas, actions and institutions as imperfect as the beings who drove this project forward through time. The fact that there are many unsavory chapters in the history of human rights thus comes as no surprise. The significant good that this history contains should astonish us more than the bad that marked its path – and we should seek to tell honestly the grand story of both.
2.3 Rights on the Barricades
2.3.1 Where to Begin?
Given these complexities, writing a history of human rights clearly is no easy task. Self-confident assertions about the idea’s birth in Stoic thought, in the canonistic reinterpretation of Roman law, in the modern Natural Law tradition, in the Enlightenment, in Christian personalism or even in the policies of Jimmy CarterFootnote 47 underestimate the difficulty of the task. This underestimation is even more evident in assertions that the idea of human rights, or normative concepts that reasonably can be taken as related to the history of human rights, are not present in certain periods or cultures. It is far from clear, for instance, that merely because the Herero have not bequeathed to posterity a set of treatises on rights, including normative positions relevant for the idea of human rights, their culture contains nothing of interest to this history – or at least it should be clear if we put aside racist assumptions about the intrinsic inferiority of certain groups of people, in particular due to their cognitive abilities. Given historic events such as the “Scramble for Africa” and what it meant for very many human beings, we should be reluctant to exclude certain cultures from the history of rights from the outset – any intimation of the moral superiority of European or “Western” culture is all too evidently irreconcilable with its (horrific) historic record.
The question of where to start already has no obvious answer. Even if we leave aside implicit (though potentially highly relevant) manifestations of the idea of human rights, ignoring social norms and cultural practices, and instead search only for explicit moral or legal statements of the idea of human rights, we will still find multiple contenders. As explained above, history comes in many shades of gray and thus any such identification of the “beginning” of human rights will (justifiably) remain contentious.
What is clear, however, is that the idea of human rights entered the stage of world history as a major political factor during the American and French Revolutions. This idea had germinated for a long time, becoming increasingly prominent in the political and practical philosophy of the seventeenth and eighteenth centuries and finally turning into a revolutionary force: “The idea moved out of the library on to the barricades.”Footnote 48
The American and French Revolutions were complex historical events in which very different aspirations played important roles. This is also true for the implied politics of human rights. In both revolutionary contexts, however, the idea of human rights had an important part among other, sometimes competing aims, and this makes these events a natural starting point for historical reflection. Subsequently, a wider perspective can be adopted to include other, more remote historical periods.
The history of human rights from the eighteenth-century revolutions to the present is well-charted territory. Nevertheless, it is necessary to highlight some crucial elements of this history in order to make some points that are important for our further inquiry. The discussion will lead to the following conclusion, which will be tested and enlarged upon in Chapter 3: Human rights history since the eighteenth century shows, we will argue, that human rights are a political project based on a particular ethical outlook born from the reflection of historically embedded but autonomously thinking human subjects, a project that is turned into but not limited to positive law and its institutions. To explain human rights history primarily by some often vaguely defined cultural or religious source, as some forms of cultural or religious reductionism do, runs the danger of depoliticizing the profoundly political human rights project, of missing its ethical core and impoverishing significantly the depth and explanatory power of the historical analysis. As we have already seen, in this analysis, human rights as ethical ideas have to be clearly distinguished from their legal and institutional implementation, which can take many forms. The current two-tier system of legal international human rights protection is not the only system in which human rights can play a meaningful role and that needs to be studied to gain a deeper understanding of them.
2.3.2 From Politics to Law
The role of human rights at the time of the American and French Revolutions was political, often rhetorical and only legal in a more limited sense. Documents like the Virginia Bill of Rights as the first concrete list of such rights and the Declaration of Independence gave human rights pride of place. The legal order established by the Constitution of the United States was much more hesitant and took significantly less ambitious steps to follow up these bold statements. In France, the Déclaration did not lead to enduring enforceable human rights law either. On the contrary, the French Revolution took the path to la Terreur and Napoleonic rule, and the principles of 1789 only bloomed very slowly.
Prominent conceptions of human rights underpinning these developments shared an important feature of the human rights project that has taken shape over the last two centuries, a feature we have already identified: The rights of human beings were to be protected in concrete limited political communities but as part of cosmopolitan normative perspectives. The protection afforded in the context of the nation state from this point of view had a universal aspiration. A kind of stewardship concept was implied: Human rights were to be realized in the available political space, which was the nation state. However, the nation state was acting as a steward of the rights of humanity, which were not limited to any particular political community. Burke identified the problem quite correctly: The Déclaration did not secure the rights of Frenchmen; it attempted to secure the rights of human beings in France.Footnote 49
It is hardly surprising that the idea of an international protection of human rights beyond this focus on concrete political communities played no role in this period. To begin with, the idea was violently opposed by various secular and religious powers – including the mightiest that existed. The enemies of human rights had armies, their defenders not necessarily so.
Furthermore, it was not only the forces defending authoritarian regimes and orders based on the perceived unequal worth of human beings, like champions of the ancien régime, who opposed human rights. Right from the very inception of these rights, there were movements committed to what they perceived as social progress but on the ground of politics that denied and violated human rights. After all, la Terreur followed the Déclaration de Droits de l’Homme et du Citoyen after only four years, with long-lasting consequences for the perceived legitimacy of the ideas of the French Revolution.
For a long time, there were other rather substantial impediments to formulating anything remotely resembling a concrete idea of international human rights protection: First of all, at this point in time there was only a vague sense of what humanity actually meant in real terms, given the limited mutual contact and genuine familiarity with the diverse human cultures of that time. Moreover, contact with a given region of the world and knowing something about it does not necessarily lead to the inclusion of that region’s inhabitants among humanity, as the colonial practices of the European states vividly illustrate. Finally, it is worth mentioning that there was simply no organizational and institutional space in which such cosmopolitan visions could have been pursued in the revolutionary period.Footnote 50 Inevitably, attempts thus concentrated on securing rights for the concrete political entity those involved belonged to; that is, for nation states or other entities, such as the German states or the cantons of the Swiss Confederacy.
Given this state of affairs, other aspirations for a legal world order of human rights were clearly out of reach, if they were developed at all. Establishing rights on the limited national level already required not only revolutionary action, but generations of political struggles that continue to this day. Starting with political action for a world community of rights would not have been a very promising action plan in 1776 or 1789.
The idea of cosmopolitan perspectives realized in particular political communities, however, found powerful expression, albeit in political practice only as one among other, quite different political aspirations. Moreover, this conception of human rights was often limited in many crucial aspects. The exclusions of women, of slaves and more generally of people of certain imagined races or from particular social classes or religious communities are the most obvious ones. This notwithstanding, this conception of human rights proved to be a central element of the future protection of human rights once these patterns of exclusion were overcome.
2.3.3 Civil Rights and Human Rights
Another pertinent issue that came to the fore during this formative constitutionalist period was the relation and sometimes tension between human rights as the rights of all humans and civil rights or the rights of citizens, in the sense that these rights are guaranteed but reserved only to the citizens of a specific community and not extended to all persons resident or temporarily staying in a country. The history of rights in the nineteenth century to a large degree was written in the language of constitutional civil rights, and not only in the USA and Europe. As indicated above, in principle there are legitimate functional reasons for this differentiation that are entirely in harmony with the idea of human rights. In the history of constitutionalism, however, the restriction of rights to citizens was not limited to such functionally legitimate constraints but extended to other and sometimes to all guaranteed rights. This limitation can be understood as a partial realization of universal human rights or can be justified on more narrow grounds – for example, as the traditional rights of members belonging to a particular community or even as a nationalistic conception of rights entitlements.Footnote 51
Despite these limitations and ambiguities, these catalogues of civil rights (understood in this restricted sense as to their personal scope) are relevant for the history of human rights. The content of key rights such as freedom of expression or due process was shaped and developed further within this framework. They are thus examples of how rights that are limited in their personal scope can be relevant for the development of more inclusive human rights. Only one more step needed to be taken – a step of great importance for the history of human rights: the universalization of rights granted to particular individuals, extending the personal scope of these rights to all human beings. Here, too, this one step was a major one, full of preconditions, but one that very much forms part of the history of rights as human rights.
The idea of human rights in the narrow sense, however, continued to play a variety of important roles in nineteenth-century thought. It remained not only the object of legal inquiry and its ambivalent conceptions of human rights’ origin and content,Footnote 52 but also served as a rallying cry for revolutionary grassroots action struggling to overcome the monarchical order reinstated after the Napoleonic Wars. To take one particularly interesting example, in one of the most famous revolutionary pamphlets in German history, Der Hessische Landbote (1834), one of the greatest playwrights in the German language, Georg Büchner, wrote of human rights as the normative anchor of his demands for freedom and equality – demands that drove him into exile in Zurich and landed many of his associates in prison – yet another example of the struggles for human rights from below.Footnote 53
Büchner’s courageous actions illustrate that achieving guarantees of these rights after their revolutionary declaration continued to be an arduous political project involving major historical tragedies. One example with particularly far-reaching consequences for world history is Germany, of whose political development Büchner’s fate is in many ways a paradigmatic case: The suppression of the democratic revolution in the German states after years of political unrest and its remarkable constitution of 1848, the subsequent rise of German authoritarianism, the admirable constitutional attempt of the Weimar Republic after World War I, its collapse, the rise of Nazism, the catastrophe of World War II and the mass murder taking place in its shadow and the resurrection of German constitutional democracy based on human rights in 1948 in the form of the Basic Law in one part of the country, divided until its reunification in 1990, illustrate what kind of historical forces have to be mastered before a constitutional order based on human rights can become a reality. The fascinating history of constitutionalism in the nineteenth and twentieth centuries unfolding on all continentsFootnote 54 provides many other examples of how the development of rights proceeded, halted, regressed and had to give way to authoritarian regimes until new developments opened the door to the pursuit of rights once more.
There is a further important point. In addition to their role in the ethics and law of eighteenth-century declarations of rights and of nineteenth-century constitutionalism, human rights also contributed to important ethical and political movements that led to far-reaching change in social, political and legal terms. Important examples are the antislavery movement, including as one of its most dramatic and increasingly less neglected expressions, the 1791 Revolution in Haiti and the campaign against torture that had originated before the great declarations of rights. The women’s liberation movement is another crucial example. The rights of women were claimed eloquently during the French Revolution, albeit with limited concrete success.Footnote 55 These rights continued to be the object of struggles that concerned not only women’s right to vote, but other issues as well, such as property, contract and family law, challenging the many restrictions women faced.Footnote 56 One last example is the labor movement, important parts of which had an explicit fundamental rights agenda, despite Marx’s skepticism about rights.Footnote 57
These movements developed heterogeneous political views, some of them becoming increasing hostile to the idea of human rights. But even where this was not the case, human rights were not their only concern. Nevertheless, these efforts had some ideas in common: Slaves and workers rebelled against being reduced to beasts of burden, claiming the right to different treatment as humans. Women resisted repressive patriarchal structures and demanded freedoms as beings endowed with as much reason, morality, sentiment and capacity for self-determination as men. The movement for the abolition of torture and more generally for penal reform highlighted the humanity of the tortured persons that seemed to forbid such treatment. The demands of these movements may not have been couched in the words of twenty-first-century human rights terminology, but their more profound normative structure was very much about the legitimate claims of slaves, workers, women or convicts as humans and therefore belong in any history of human rights. Mary Wollstonecraft’s thoughts about women’s rights, recalled above, are just one example, as are W. E. B. Du Bois’ demands for human rights as a crucial element of post-slavery emancipation.Footnote 58 Accordingly, various provisions of modern human rights law finally embodied these demands.
The protection of human rights in specific political communities, a protection with universalist aspirations despite the limited and exclusionary form in which these rights initially were conceptualized, forms the first key step in the development of the contemporary architecture of human rights. This idea was audacious despite its limitations, as its history shows. The concrete history of legal developments saw substantial human rights realized predominantly in the personally limited form of civil (constitutional) rights. The revival of the full idea of human rights and the project of their international protection beyond the means of the state form the second step of this development. This step led to the highly imperfect and even in its most solid parts constantly threatened order of human rights in which we live today: their primary protection by national means and a supplementary, subsidiary protection through the international systems of rights, both regional and universal. How did this come about?
2.4 The Growth of the Multilayered Protection of Human Rights
2.4.1 Contours of the Project
The concrete project of an enlarged protection of human rights through the means of international law emerged more concretely in the twentieth century. From at least the 1920s onwards, the idea of the international protection of human rights became an explicit ethical, political and legal project.
The protection of human rights developed not as a natural outcome of the long-standing humanitarian traditions of the major powers. Traditionally, the political praxis of the world powers of the Global North had nothing to do with human rights: The European powers – despite the constitutional and democratic movements of the nineteenth century – in the time between the American and French Revolutions and the creation of the UN Charter and the Universal Declaration in many cases were authoritarian orders with little or no effective protection of fundamental rights, some even in newly established forms such as the fascist dictatorships in Italy and Spain and the Nazi dictatorship in Germany, leading the way to the ultimate negation of human rights. Catastrophic wars were conducted without much consideration for things such as ethical principles. Beyond Europe’s boundaries, colonialism continued to inflict great suffering on people around the world, demanding a staggering death toll and including actions that even in the later, narrow, technical legal sense were genocidal, both in colonized Africa – for example, in the case of the Herero – and in other parts of the world, including North America.Footnote 59
These practices were deeply ingrained in the culture and political thinking of the times.Footnote 60 It was no coincidence that Joseph Conrad’s Heart of Darkness, published at the beginning of the twentieth century, became a key aesthetical reflection of the historical forces at play: The real heart of darkness beat in the chest of European culture. Conrad’s wandering protagonist Marlow thus notes plausibly that “all of Europe contributed to the making” of the mass murderer Kurtz.Footnote 61 Kurtz himself concisely summarizes the maxim guiding his own actions on the margin of his edifying pamphlet about Europe’s civilizing mission, revealing the real truth behind the lofty humanitarian rhetoric, drenched with the cynicism, hypocrisy and self-delusion of the colonial empires: “Exterminate all the brutes!”Footnote 62
A sober summary of the situation at the time of the slow inception of the international protection of human rights therefore cannot be a narrative about the triumphant, long-standing ethical tradition of Europe or the Global North, but rather must echo Marlow’s self-reflective observation at the beginning of his narrative on the cruising yawl Nelly, anchored at the mouth of the Thames: “Darkness was here yesterday.”Footnote 63
The idea of taking a step forward, of improving the protection of human rights was thus an element of the ethical counterculture to the imperial Global North: the attempt to keep alive some of humanity’s more worthy aspirations against powerful and unquestioned political traditions of the time.
As indicated above, the international protection of human rights is very much dependent on some kind of constant and stable organization of the international community. The first major step was undertaken after World War I. The Covenant of the League of Nations,Footnote 64 however, did not contain any reference to human rights. The USA and the UK had proposed clauses protecting religious freedom. Japan attempted to include a provision against discrimination on the grounds of race and religion but was unsuccessful because of the opposition of the USA and the UK, who withdrew their proposal after Japan’s broader initiativeFootnote 65 – unsurprisingly, given the racial segregation in the USA and the UK’s colonial empire. Proposals for other human rights issues suffered the same fate, including the rights of women.Footnote 66
Human rights played a role in the instruments creating the system of minority protection in the aftermath of World War I. This system contained, first, guarantees of life and liberty to all inhabitants of the respective country or region, without distinction of birth, nationality, language, race or religion. Second, it provided for equality before the law for all nationals and guaranteed their equal civil and political rights, without distinction as to race, language and religion. Third, it protected some cultural assets of minorities – for example, with regard to language or the right to establish social and religious institutions.
This system was limited to certain countries.Footnote 67 Proposals to extend the established duties to all League members were repeatedly rejected.Footnote 68 However, on September 21, 1922, the League of Nations passed a resolution that voiced the hope that all League Members would abide at least by these standards.
This system was limited in many ways, not least because it established obligations of the states towards other states and not subjective rights of the individual persons under international law. However, the treaties were “still of historical significance as unprecedented limitations on national sovereignty under international law.”Footnote 69
The substance of the human rights idea was influential in other areas, too. The Constitution of the International Labour Organization (ILO), created at the Paris Peace Conference, is a good example, as it established a framework for the protection of workers inspired by the idea of their human rights.Footnote 70
The efforts of legal scholars from a range of backgrounds to develop the idea of the international protection of human rights form an important chapter in these rights’ history. These scholars’ concrete reflections and proposals tried to flesh out the possible makeup of such an international order of human rights. The prominent players included the cofounder of the American Institute of International Law and later judge of the International Court of Justice, Alejandro Álvarez of Chile, who as early as 1917 presented a list of individual liberties that ought to be protected for everybody on the territory of any state.Footnote 71 Among the other major actors were A. N. Mandelstam, a Russian émigré who moved to Paris after the Bolshevik Revolution, and A. F. Frangulis, a Greek likewise living in Paris because of his opposition to the rule of Venizelos in Greece. Both were involved in the International Diplomatic Academy set up by Frangulis and Álvarez among others, and in this context they played a central role in formulating a 1928 resolution generalizing the rights provided for by the minority system and thus guaranteeing life, liberty and equality before the law and protecting against discrimination on the grounds of race, language and religion.Footnote 72 Mandelstam had drafted a text on human rights for the Institut de Droit International, which led to the Declaration of the International Rights of Man of October 12, 1929, which contained rights of every individual residing in the territory of a state and rights of the nationals of a state. It explicitly stated that the rights guaranteed in national constitutions needed to be extended to everyone and guaranteed by every state.Footnote 73 This declaration was endorsed by various associations concerned with human rights and complemented with further and alternative demands.Footnote 74 Its aim was to define on the international level a set of rights that states had to guarantee to all human beings residing on their territory and subject to their jurisdiction. This was nothing less than – in a nutshell – the core of the international human rights protection of the post-1945 period.Footnote 75
Comparative studies about human rights protection in the constitutions of various countriesFootnote 76 formed an important part of these efforts to flesh out the possible content of human rights. These studies were the forerunners of the background research preparatory to the drafting of the Universal Declaration. Note that this technique yet again illustrates the percolation of human rights from the national to the international level, which makes it pointless to study the development of the one without the other. This method was put to use on many occasions in the decades to come, as we will see.
These efforts were not entirely theoretical. In 1933, Frangulis, then a delegate of Haiti, introduced a draft resolution to the Assembly of the League of Nations that was identical to the resolution of the Diplomatic Academy of 1928. Its aim was not only to generalize the minority rights protection system, but also to establish a genuine protection of human rights by international law. This initiative was unsuccessful, however. The apparent reasons for its failure are recurrent themes along the path to the international protection of human rights: The guarantee of universal human rights evidently challenged colonial practices as well as racial segregation in the USA. Furthermore, the German Reich was still a member of the League at this point and attempts to appease it continued.Footnote 77
Later endeavors met with equally little success, indicating that the international protection of human rights was not (yet) a matter of sufficient public concern.Footnote 78 However, by now the idea had taken on a quite concrete shape and continued to linger in the ante-chambres of history until its moment finally came.
In the same year of Frangulis’ failed attempt at the League of Nations, the International Union of the Associations for the League of Nations passed a resolution endorsing the idea of the generalization of the protection of human rights, to be enforced, if needed, by humanitarian intervention.Footnote 79
A range of important voices continued to contribute to the idea’s promotion. One of the best known of these was H. G. Wells, who, with his writings and other activities, endorsed the idea of an international declaration of rights as a statement of the “broad principles on which our public and social life is based.”Footnote 80 The final product of these efforts, his treatise The Rights of Man, was published in 1940 and gained international traction,Footnote 81 succeeding in attracting the attention of President Roosevelt.Footnote 82
2.4.2 Constructing the Postwar World
Roosevelt’s famous State of the Union address on January 6, 1941, was crucial in bringing human rights back to the center of international politics. In this address, he proclaimed the “supremacy of human rights everywhere,” spelled out in the four freedoms – freedom of speech and expression, freedom of worship, freedom from want and freedom from fear – summing up and drawing on several decades of debate on the topic.Footnote 83
The Atlantic Charter of the USA and UK of August 14, 1941, referred to the protection of certain rights, including self-government, improved labor standards, economic advancement, social security and freedom from want and fear. These statements were echoed by the Declaration by United Nations of January 1, 1942, underlining that “complete victory over their enemies is essential to defend life, liberty, independence and religious freedom, and to preserve human rights and justice in their own lands as well as in other lands.”
It is, however, not the case that the international protection of human rights from this point onwards became a cornerstone of the concrete political activities of the US Government and the UK that aimed at defining the architecture of the new world order that would emerge after the defeat of the German Reich and the Axis powers.Footnote 84 While an international bill of rights played a role in some concrete activities within the US State Department concerning the postwar international order, these did not determine policy in any crucial respects.Footnote 85 There was a significant discrepancy between Roosevelt’s famous stance and the small print (and sometimes large print) of the USA’s foreign policy up to the founding of the UN, including, together with the other Great Powers, opposition to the incorporation of meaningful provisions on human rights in the Dumbarton Oaks proposals on the new world order.Footnote 86 Importantly, human rights continued to be violated domestically through the mechanisms of racial segregation, as powerful voices such as W. E. B. Du Bois had underlined for many years.Footnote 87 The UK policy was guided by the determination not to apply human rights to the colonies.Footnote 88 This set the stage – together with the repressive policies and lethal terror of the Stalinist system – for the problem of double standards in the human rights policies of the major powers, of a “divided world” of human rights protectionFootnote 89 and the instrumentalization of human rights for political purposes that has haunted the human rights project ever since.
An increasing number of wartime activities by civil society actors were inspired by the idea that one element of the order at stake was human rights. Given the war, these activities to a large extent took place in the USA.Footnote 90 Some of the associations involved produced recommendations that closely prefigured the postwar development, including the subsidiarity of international human rights, implying the necessity of human rights protection and enforcement mechanisms on the state level.Footnote 91 Major intellectual contributions were published by J. MaritainFootnote 92 and H. LauterpachtFootnote 93 among others. R. Lemkin had meanwhile started his campaign for an international instrument against genocide.Footnote 94 The ILO passed its Declaration of Philadelphia on May 10, 1944, which was annexed to the ILO Constitution in 1946, affirming that “all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity,” and that “the attainment of the conditions in which this shall be possible must constitute the central aim of national and international policy.”
The American Law Institute appointed a committee of twenty-five experts “representing principal cultures of the world” that carried out substantial work on the content of an international bill of rights, including a survey of the protection of human rights in national constitutions and a “statement of essential human rights” comprising liberal and substantial social rights because “Hitler’s extermination of peoples has demonstrated to all who can read that a world society with so much power as ours must be organized to serve the dignity and welfare of the individual being or it will destroy itself.”Footnote 95 It provided key material for the Universal Declaration.Footnote 96 This is yet another example confirming that these national constitutional rights are not alien to international human rights, but rather are their fertile breeding ground.
All of this notwithstanding, the reluctance to make human rights a real policy issue persisted. The proposals put forward by the USA, the UK, the Soviet Union and China at the conference of Dumbarton Oaks in 1944 referred ultimately only to a new world organization to “promote respect for human rights and fundamental freedoms” in the context of “arrangements for international economic and social cooperation,” but not in any more ambitious sense.Footnote 97 A US proposal for a mainly rhetorical statement of principle about respecting human rights found no support by the UK and the USSR.Footnote 98 China’s idea to include a provision on the equality of all races in the Charter (not a minor point for the protection of human rights) was opposed by the USA, the UK and the Soviet Union.Footnote 99
The Charter of the United Nations, signed at the United Nations Conference on International Organization held in San Francisco in 1945, marked a more substantial step forward. This was due not to the policy aims of the great powers, which continued to be in line with the restrictive Dumbarton Oaks proposals, but to the substantial influence of other states and of nongovernmental organizations (NGOs) on the outcome.Footnote 100 The Latin American states had decisively influenced the outcome of a conference already held from February 21 to March 8, 1945, in Chapultepec Castle, Mexico. The Chapultepec Conference passed a resolution calling for an international declaration of human rights as well as instruments to implement these rights. It instructed the Inter-American Juridical Committee to prepare such a draft declaration.Footnote 101 The Latin American states were active forces for the promotion of human rights at the San Francisco Conference, forming the largest regional group of states, many at that time with democratic political systems.Footnote 102 Other smaller countries played a significant role, too, including Lebanon and the Philippines.Footnote 103
NGOs also contributed to the process.Footnote 104 Forty-two NGOs were invited to join the US delegation as consultants, with a view to securing public support for the new world organization.Footnote 105 The US Senate had not ratified the Covenant of the League of Nations, and one of the aims for the UN Charter in the making was to ensure that this did not happen again. The NGOs promoting human rights were politically and culturally heterogeneous and represented voices from various religious perspectives.Footnote 106 Their representatives had a decisive influence on the US delegation, which in turn convinced the delegations of the UK, the USSR and China to include references to human rights in the CharterFootnote 107 – albeit to an admittedly limited degree. Importantly, human rights became part of the purpose of the UN, which was mandated to establish a commission for human rights under the Economic and Social Council. The Charter was certainly no glorious dawn of the age of human rights, not least because it accommodated the colonial aspirations of Britain, France, Portugal, Spain, the Netherlands, Belgium and the USA. But some seeds were sown that had the potential to grow into something different. In particular, the Charter’s provisions provided tools for the next major step in the development of human rights, namely the drafting of the Universal Declaration, proclaimed by the UN General Assembly in Paris on December 10, 1948.Footnote 108
It should be noted that the demands for the more forthright language used by the Charter were articulated not least by the Global South.Footnote 109 This does not come as a surprise, because one major driving force of the history of human rights was the prohibition of racial discrimination and decolonization, which had a decisive influence on the establishment of the human rights regime as we know it, as will be discussed in more detail below.
The question of whether human rights could limit sovereignty (as secured by Art. 2 Sec. 7 UN Charter) cast the universal aspirations of some actors into sharp relief. Art. 2 Sec. 7 UN Charter was widely held as safeguard against any intervention in the internal affairs of states, including those based on the protection of human rights. A fundamental problem lurks here that has continued to trouble the international human rights systems ever since: The protection of human rights was created by those agents – the states – that human rights are designed to protect against. States have therefore a strong incentive to make any international human rights obligation as little burdensome as possible. The tension between international human rights protection and sovereignty was not merely a theoretical issue. For instance, on the initiative of India, the UN General Assembly had already voted in 1946 that the UN had the competence and the duty to investigate the discriminatory treatment of Indians in South Africa.Footnote 110
2.4.3 Pushing the Agenda from the Periphery of Power
One major step in the development of the international protection of human rights was the drafting and passing of the American Declaration of the Rights and Duties of Man. The Inter-American Juridical Committee worked out a complete draft by December 31, 1947. This draft was amended, in particular with regard to the duties of human beings, and adopted at the Ninth International Conference of American States in Bogotá, Colombia, in April 1948 as the first international general human rights instrument. There were discussions about institutions of enforcement, most importantly an Inter-American Court of Human Rights.Footnote 111 The Declaration’s content was shaped by different political forces. Social democratic, liberal and Catholic traditions contributed to the set of rights protected, which encompassed classic liberal rights, social and economic rights and – a distinguishing feature – a number of concrete duties.Footnote 112 Some voices called for the Declaration to be binding and included in the Charter of the Organization of American States, demanding an effective system of enforcement, while other voices opposed this. One reason for this opposition was authoritarian regimes’ fear of being bound by human rights.Footnote 113 On the other hand, the fear of intervention, which loomed large given Latin America’s experiences with US policy, motivated some actors to endorse a declaration of human rights, arguing that it would prevent such intervention as it would protect the rights of persons.Footnote 114 Others feared that such a declaration on the contrary would increase the danger of intervention on the grounds (or pretense) of rights protection.Footnote 115 These arguments illustrate the complex matrix of reasoning – principles, political expediency and tactics, interests in maintaining or limiting power, different political visions, contextual factors of power relations – that fed into the making of a particular human rights instrument, shaping the actions of those involved in this process, with opposing positions sometimes pursued by different governments of the very same country.Footnote 116 The internal divisions underlying these policy changes became vividly clear in Bogotá itself – following the assassination of the politician J. Gaitán, violence broke out, starting one of the civil wars that tormented the country for decades.
The American Declaration was of considerable significance for the drafting of the Universal Declaration, as were the submissions of Latin American countries to the UN Commission on Human Rights, not the least in the field of social and economic rights, drawn from their particular political tradition.Footnote 117 The idea of duties entered into the text of the Universal Declaration, Art. 29, only in limited form. We should avoid drawing rash conclusions about the meaning of this, however, such as equating the existence of duties with more community-oriented outlooks and a lack of them with individualism. The question of whether or not to include duties in a rights catalogue is not easy to answer. Duties are the necessary correlative of claims – a rights catalogue thus implies very many duties, both of states and, given a doctrine of positive obligations and a (direct or indirect) horizontal effect, of private actors. Duties can not only serve benign community-oriented purposes, but also curtail legitimate liberty. Thus, one may well be very sympathetic to the importance of community and still opt against a strong language of duties in legal documents.
One controversial topic of international human rights in the making regarded women’s rights. These rights were promoted by actors from quite different backgrounds. Influential voices came from the Global South in this field, too, pushing for the inclusion of normative content concerning the equality of women in Art. 8 of the UN Charter on the equal eligibility of men and women to participate in UN organs and in the Universal Declaration.Footnote 118 They sometimes faced resistance even from women delegates and their advisors from countries such as the USA, the UK and Canada, including comments that such efforts were “unlady-like.”Footnote 119 One telling episode that took place during the drafting of the Universal Declaration was the initiative to use language clearly including women in the preamble and Art. 1 Universal Declaration. The Dominican Republic filed a proposal to make the reference to equal rights of men and women in the preamble explicit.Footnote 120 Eleanor Roosevelt did not consider this amendment necessary because “the time had come to take for granted that such expressions as ‘everyone’, ‘all persons’ and ‘mankind’ referred to both men and women.”Footnote 121 However, the Indian delegate, Lakshimi Menon, together with the female delegate of the Dominican Republic, Minerva Bernardino, argued forcefully for this clarification because the reference to “everyone” or similar expressions may be misconstrued as not creating equal rights for men and women, drawing from constitutional experience such as the interpretation of the Fourteenth Amendment to the US Constitution allowing racial segregation.Footnote 122 The initiative was ultimately successful – against the vote of China and the USA – in securing a reference in the preamble of the Universal Declaration to the “equal rights of men and women.”Footnote 123 The issue also arose concerning the language of Art. 1 Universal Declaration. Among others, Hansa Mehta from India argued for a language that explicitly includes women in human rights protection to avoid any misunderstanding. This initiative was only partly successful: Art. 1 refers to “all human beings.”Footnote 124
One issue of decisive importance for the history of human rights was the question of the inclusion of people living in colonies in human rights protection. Attempts to do so explicitly were forcefully opposed by colonial powers such as Britain and France, albeit with only limited success, given the universalist language of the introductory paragraph and Art. 2 Sec. 2 of the Universal Declaration.Footnote 125
Another controversial theme that continues to be significant is the system of enforcement – examples of the debates in the 1920s and 1930s and during the drafting of the Universal Declaration have already been mentioned. Various attempts to strengthen the system were made – for example, by Charles Malik and Hansa Mehta.Footnote 126 Australia even proposed an International Court of Human Rights with the competence to make judgments binding on states.Footnote 127 Successful attempts of Mexico to promote the right to effective remedy, which became Art. 8 Universal Declaration, belong in this context, too.Footnote 128
The experience of the “horrors of war and totalitarianism,” as the Chilean delegate, Santa Cruz, put it, of the Holocaust and other forms of mass murder were of foundational importance for the drafting of the Universal Declaration. The very recent past had shown very clearly what a world without respect for human rights looked like, and the drafters lost no opportunity to draw on what they had seen.Footnote 129
2.4.4 From the Universal Declaration to the Differentiated International Bill of Human Rights
2.4.4.1 Human Rights Turned into Constitutional Law
The Universal Declaration formed an important source of inspiration for constitutional law after World War II. One example that became particularly influential is Germany’s Basic Law. Its catalogue of fundamental rights, many of them designed as human rights in the narrow sense of rights of all humans irrespective of nationality, is very much inspired by the Universal Declaration. The fundamental rights system of the Basic Law influenced other constitutional orders that became influential in their own right. The Constitution of South Africa is a prime example. After 1989, a great number of Central and Eastern European states transformed into constitutional orders protecting fundamental rights. As outlined above, effecting exactly this protection on the level of states was an essential aim of the Universal Declaration. The shift towards constitutionalism of the last decades thus forms a crucial element of the history of human rights after 1948. Nothing about this development is irreversible, of course, as recent attacks on constitutional orders based on liberal rights vividly illustrate.
2.4.4.2 Human Rights Turned into International Law
Once the Universal Declaration of Human Rights had been passed, a further element on the international human rights agenda was to turn the rights declared into international law and create a system of meaningful implementation. The process of achieving these ends following the adoption of the Universal Declaration proved as difficult as might be expected, given this extraordinary legal project’s scope and quality. Today, we have covenants of universal application covering a broad range of rights, regional covenants of this kind and specialized conventions dealing with specific issues or groups of persons. There is neither a uniform system of state obligations nor a uniform system of human rights implementation. This situation very much mirrors the convoluted, politically unlikely process of the creation of international human rights law.
A first step was already taken in 1948 with the adoption of the Genocide Convention, one of the archetypical pieces of international human rights law.Footnote 130 The Geneva Convention on Refugees is another issue-specific piece of international law serving the protection of a particularly vulnerable group of people.Footnote 131
On the regional level, the 1950 ECHR set out a catalogue of human rights that over the decades has become the core of the arguably most advanced and effective system of the international protection of human rights existing to date. Its creation had to overcome considerable political obstacles, not least in the context of decolonization:Footnote 132 “The truth was that a majority in the Council of Europe were, whatever their pretensions in public, unenthusiastic at the prospect of international European human rights protection.”Footnote 133 Not least because of its effectiveness that has tangible and uncomfortable consequences for states, the ECHR continues to be an object of various forms of critique.Footnote 134 The Inter-American system of protection developed more slowly and in many ways under more difficult circumstances, given the number of authoritarian regimes it had to accommodate. By now, however, it has achieved a standard of protection comparable to that of the European system and has contributed many innovations to the understanding of international human rights.
The first international treaty of universal application was the 1965 Convention on the Elimination of All Forms of Racial Discrimination (ICERD),Footnote 135 which catalyzed the final adoption in 1966 of the two major human rights covenants on civil and political rights (ICCPR)Footnote 136 and social, economic and cultural rights (ICESCR),Footnote 137 although these only entered into force in 1976. Recent decades have witnessed the development of an increasingly differentiated system of international human rights protection. Its landmark elements include the Convention on the Elimination of All Discrimination Against Women (1979),Footnote 138 the Torture Convention (1984),Footnote 139 the Convention on the Rights of the Child (1989)Footnote 140 and the Convention on the Rights of Persons with Disabilities (2006).Footnote 141
A further element of the international human rights system is international humanitarian law based on the Geneva Conventions of 1948 and their additional protocolsFootnote 142 that intend to protect the fundamental rights of persons in armed conflicts. Yet another pillar is international criminal law, born of the Nuremberg and Tokyo Trials. Following the ad hoc tribunals for Yugoslavia and Ruanda, international criminal law took on tangible form in the Statute of RomeFootnote 143 and the establishment of the International Criminal Court among other institutions. It should be noted that the ideas of humanitarian and international criminal law are deeply rooted in the history of legal thought.
The law of the EU is another important element of international human rights protection on the regional level that comes with its own new and legally challenging qualities. Fundamental rights – beyond the so-called fundamental freedoms of movement, establishment, services and capital, which are at least partly similar to fundamental rights – were first established pretorian style by the case law of the then European Court of Justice (ECJ) (now Court of Justice of the EU; CJEU) as part of EU law.Footnote 144 The Charter of Fundamental Rights, which initially was only declaratory in character, was turned into mandatory primary law by the Treaty of Lisbon.Footnote 145 It binds the EU and all Member States implementing EU law.Footnote 146 Given the expansion of EU law in recent years, its scope of application encompasses significant areas of law. One major issue encountered when the Charter was being drafted was the question of which rights under EU law were to be understood as human rights in the narrow sense.Footnote 147 Central rights finally were enacted as such human rights, including human dignity,Footnote 148 the right to life and physical integrity,Footnote 149 the prohibition of torture,Footnote 150 freedom of religion,Footnote 151 freedom of speech,Footnote 152 habeas corpus rightsFootnote 153 and the prohibition of discrimination.Footnote 154 This means that every person can invoke these rights within the scope of application of EU law. The justificatory reason is clear: Persons are entitled to these rights because they are humans, not because they are citizens of a Member State of the EU. For other rights, citizenship of an EU Member State is a precondition – such as the right to vote for the European Parliament.Footnote 155 The fact that such a right is not a human right in the narrow sense is uncontroversial, although the question of whether people permanently residing in a country should enjoy this right is. In other cases, the personal scope of the rights was the object of intense debate and criticism – for example, concerning freedom of movement.
The creation of the abovementioned ICERD in 1965 also spearheaded important steps down another thorny road: the road towards the institutionalization of implementation mechanisms. It did so in concrete terms through a “treaty body” entrusted with this task (the Committee on the Elimination of Racial Discrimination; CERD) and competences including an individual petition mechanism, interstate complaints and reporting duties.Footnote 156 This became one model of how to implement human rights.
Ideas on how to enforce human rights on an international level, including some kind of international human rights court, had been pursued and proposed early on in the development of international human rights, as we have seen.Footnote 157 Such implementation mechanisms represent an important step in making human rights effective limits to state power. Even mandatory human rights norms remain no more than a harmless nuisance if they are not backed with effective mechanisms of implementation. Ideally, these will take the form of an individual complaint mechanism to an independent court with the power authoritatively to determine the meaning of human rights and the concrete content of state obligations, such as the ECtHR or the Inter-American Court of Human Rights, approaching the quality of implementation on the state level. One major challenge is creating trust in the workings of such international institutions so as to overcome resistance against their creation and maintain their legitimacy once established. This problem – which in principle arises for such institutions on the national level as well – is a particular issue on the international level because many states without democratic, human rights-based systems are involved in appointing these institutions’ decision-makers. If we are committed to the idea of an international rule of law, this problem needs to be taken very seriously indeed.
Unsurprisingly, many efforts were made to prevent the development of such effective implementation mechanisms by powerful actors from both the Global North and the Global South.
The implementation mechanisms that were finally established despite this resistance vary considerably. On the national level, they include a fully-fledged constitutional review with courts having the competence to nullify laws as unconstitutional because they breach fundamental rights (including human rights in the narrow sense).Footnote 158 Then there is supranational jurisdiction that is binding for Member States, with a direct effect on and supremacy over national law, as in the case of the EU and the CJEU.Footnote 159 There is binding international jurisdiction, albeit not with the effect of nullifying laws or the decisions of public authorities,Footnote 160 and there are individual petition proceduresFootnote 161 and other mechanisms, such as periodic reviews of state actions,Footnote 162 special rapporteurs,Footnote 163 advisory opinionsFootnote 164 with sometimes opaque (if any) legal effects and work “to promote and protect the effective enjoyment by all of all civil, cultural, economic, political and social rights” in a variety of extrajudicial ways.Footnote 165
2.5 The Parameters of Change
2.5.1 Policy and Politics
The growth of this heterogeneous and fragmented human rights system was conditioned by the factors shaping world politics after 1948. These included the Cold War, in which human rights were used as a tactical weapon to weaken the respective opponent in more than one form, albeit interwoven with other power-political considerations.Footnote 166 Major powers in both West and East, North and South were reluctant to commit themselves to a system of human rights, fearing scrutiny of some of their policies or of the regimes they supported – from apartheid South Africa to Pinochet’s Chile or the Argentinian Junta.Footnote 167 Colonial regimes were still a major element of the world order at the time when this project began, and racism still formed part of major actors’ institutional structures.Footnote 168 Much depended on policy changes in the governments of states and their shifting attitude towards human rights in general and international human rights in particular. Both policies and attitudes often were influenced by domestic considerations, such as the southern US states’ fear that an international human rights regime might challenge their system of racial segregation.Footnote 169 Such domestic influences are the reason for the resistance in the US Senate to binding human rights treaties that led Eisenhower and Dulles to decide not to ratify the international human rights instruments prepared at the level of the UN after the Universal Declaration as part of a foreign policy that did not support the development of international human rights,Footnote 170 the UK’s 1966 policy shift following the electoral victory of the Labour Party under Wilson in 1964 that accepted broader human rights obligations of states, not least to bring the UK in line with international developments,Footnote 171 or the shift of opinion of Western states about the right to self-determination in the Conference on Security and Co-operation in Europe (CSCE) Helsinki Process.Footnote 172 The wide-ranging reforms taking place in many societies from the 1960s onwards as part of liberalization and cultural transformation played another important role for domestic and international human rights issues,Footnote 173 although some of the competing political projects, including those proposing radical, revolutionary transformation, were skeptical about human rights – for example, on the Marxist–Leninist left. The rise of NGOs like Amnesty International as part of wider political movements that they themselves shaped in turn forms part of this context.
2.5.2 Regime Change and the Creation of New Political Bodies
Regime change and – given the increasing number of new states – regime creation were further crucial factors.Footnote 174 The process of decolonization increasingly led to authoritarian regimes gaining power in the newly independent states. The First UN Human Rights Conference was attended by eighty-three countries, of which about two-thirds were undemocratic.Footnote 175 Twenty-six coups took place in Africa in the 1960s alone, followed by Idi Amin’s rise to power in Uganda in 1971, the introduction of martial law in the Philippines by President Marcos in 1972 and the putsch in Afghanistan that put an end to some (albeit severely limited) democratic endeavors in that country, including its 1964 constitution.Footnote 176 There were many reasons for the rise of authoritarian regimes as part of the decolonization process. In the context of a history of human rights we should remember, however, that this development was majorly influenced by the actions of world powers from the Global North, from the coup against Mosaddegh and support for the Shah’s regime in Iran in 1953 by the USA and the UK, to the 1961 coup against Lumumba in Congo that paved the way for Mobutu’s dictatorial rule,Footnote 177 to the military action by what was then West Pakistan against what is now Bangladesh in 1971.Footnote 178 A wave of authoritarianism swept Latin America, too, in the decades after World War II,Footnote 179 including US-backed coups – for instance, in Guatemala in 1954, disposing democratically elected President Arbenz.Footnote 180 The USA supported dictators throughout the region – Jiménez in Venezuela, Batista in Cuba, Trujillo in the Dominican Republic, Somoza in Nicaragua, Pinochet in ChileFootnote 181 and the military governments in Argentina and Brazil after the coup of 1964Footnote 182 – as did other Western states. All of this created a massive human rights toll.Footnote 183
In addition, the authoritarian socialist regimes consolidated after World War II. The USSR’s record includes the crushing of uprisings in East Berlin in 1951 and in Budapest in 1956 and of the Prague Spring in 1968, as well as the invasion of Afghanistan in 1979 – again with awful consequences for the human rights of very many people.
On the other hand, some regime changes also served the cause of human rights, as illustrated prominently by postapartheid South Africa, post-Pinochet Chile or the end of the Argentinian junta in 1983, which helped to pave the way to the adoption of the Convention against Torture in 1984.Footnote 184 In addition, the collapse of the socialist state systems after 1989 opened the door to major progress in the development of international human rights, as exemplified by the expansion of the membership of the Council of Europe and concomitant expansion of the protection system of the ECHR. A major driver of this development was represented by the politics of human rights, not only top down in the official channels of the CSCE Helsinki Process, but also courageously bottom up – for instance, in the Charter 77 movement in Czechoslovakia.Footnote 185
2.5.3 Political Ideologies
These regime changes went hand in hand with shifting political ideologies that held very different attitudes towards the idea of human rights. Authoritarian regimes employed arguments of cultural relativism to shield their power against critique, from apartheid South Africa to post-Tiananmen China:Footnote 186
The concepts that relativists champion in terms of respect for Third World cultures has ended up providing a powerful excuse for those who murder, torture and abuse Third World people. … The fundamental similarity between states that assert cultural objections to human rights is not the culture of the people they represent but the authoritarian character of their government. Misuses of cultural difference unites European colonial dictatorships, like the British in Kenya, racial police states like apartheid South Africa, African Marxist autocracies like Ethiopia, Islamic theocracies like Iran, and medieval absolutisms like Saudi Arabia.Footnote 187
Unsurprisingly, the World Conference on Human Rights held in Vienna in 1993 struck an uneasy compromise between universalist aspirations and emphases on cultural difference, the latter promoted not least by Iran, China and Singapore.Footnote 188
Yet another influence was the Communist vision of social organization in which human rights were interpreted primarily in terms of economic development and well-being – a position that met with criticism, including from prominent Marxist thinkers.Footnote 189 This debate was embedded in the larger question of the relation between human rights and development.Footnote 190 In some political outlooks, the latter took priority over the former, sometimes as a serious political platform, sometimes as a useful justificatory tool for authoritarian regimes.
Such different political visions were important for the conceptualization of concrete human rights. A good example is the struggle over what religious freedom means, not least in the context of the (ultimately unsuccessful) attempt from 1962 to 1967 to create an international human rights treaty securing freedom of religion and conscience. Here, again, the dividing lines were political, not cultural or religious.Footnote 191
Given these political parameters, the multifaceted powers opposing a meaningful institutionalization of human rights and the – at first glance – rather weak forces mustered in its support, what is surprising is not that the development of the international protection of human rights was a slow and often dirty process and remains highly limited today, but rather that it did not grind to a halt altogether. Civil society played an important role in effecting this change, influencing the institutionalization of human rights in profound ways, not least by bringing human rights concerns home even to those lucky enough not to experience severe human rights abuses themselves. As it turned out, Kant’s eighteenth-century perception of universal sympathy for and moral solidarity with victims of human rights abuse was quite clear-eyed. This sympathy and solidarity became a political factor increasingly to be counted on. The groundswell of human rights in civil societies in the twentieth and twenty-first centuries is one of the most impressive vindications of the power of the human rights idea – just as the rising tide of contempt for fundamental rights is a warning that the power of its foes is undiminished.
2.6 The Myth of the Western Origins of International Human Rights
We have already encountered the hypothesis that the international human rights regime is both the outcome and the normative embodiment of the hegemony of the Global North.Footnote 192 This is perhaps the most common foundation for the view that human rights are the product of particular, culturally relative outlooks, a view of some importance for our current inquiry because – as mentioned above – it matters whether the inquiry into the foundations of rights is an inquiry into a piece of Western ideology or something more profound than that.
Several elements of the historical development show that this hypothesis is a misperception, besides the influence of actors from the Global South on the drafting of the Universal Declaration and on the subsequent development of the human rights system, which was decisive, although some of these actors became entangled in politics that were not true to the idea of human rights at some stage in their careers.Footnote 193
One major set of issues during the first period of international human rights law were the abovementioned colonial exception clauses, promoted by the colonial powers such as the UK, France, Belgium and the Netherlands. These clauses were often defended on the grounds of the colonies’ cultural difference and lack of development – the form of colonial relativism encountered above.Footnote 194 President Nixon’s observation that “some of the people of Africa have been out of the trees only for about fifty years”Footnote 195 was a late echo of these views.
The anticolonial forces mobilized universalist principles of the equal rights of all human beings against these clauses, ultimately with success.Footnote 196 One major precondition of any meaningful human rights system, namely the nonselectivity and universalism of human rights, owes its existence to a large extent to the Global South’s struggle for recognition.Footnote 197 Cultural relativism at this stage was a shield deployed against the aspirations of the colonies, not a sword challenging Western hegemony.Footnote 198 Following the publication of Atlantic Charter, the colonial powers already had to face the problem that many people in the colonies demanded that the values of freedom, democracy and rights defended in World War II be applied to them, too. After all, they were expected to provide crucial material support for the war effort and even to risk their lives in great numbers. The attempt to maintain the colonial system embodied a blatant self-contradiction. Moreover, massive human rights violations by colonial powers, including atrocious colonial military operations like the French campaigns in Madagascar, Southeast Asia and Algeria or the British counterinsurgency violence in Malaya, Cyprus and Kenya, which for a long time were “a taboo in public debate”Footnote 199 in many countries, showed the true colors of the colonial regimes.Footnote 200 Human rights thus became an “anticolonial inspiration.”Footnote 201 Other liberation movements relied on human rights, too. One good example is the human rights catalogue that the African National Congress drafted after the publication of the Atlantic Charter, calling all to unite in “this mass liberation movement and struggle, expressed in this Bill of Citizenship Rights until freedom, right and justice are won for all races and colours.”Footnote 202
One concrete long-term legal effect of this was the broadening of the scope of international humanitarian law to include anticolonial and internal armed conflicts.Footnote 203 Another was the colonial powers’ resistance to the development of a robust international human rights regime. Only once the colonial powers were forced to give up control over their colonies and the ethical corruption that the colonial regime entailed no longer played a role did this obstacle to a meaningful rule of human rights fall away.Footnote 204
The debate on the Convention on the Political Rights of Women,Footnote 205 the UN’s first attempt to improve women’s rights, is a further good example of the role of relativism. Arguments about cultural difference played a major role here, and an attempt even was made to reintroduce colonial exception clauses into the covenant. These arguments were ultimately defeated by defenders of women’s rights, including Begum Ra’ana Liaqat Ali Khan from Pakistan,Footnote 206 who later in life stood up for women’s rights against the dictator Zia-ul-Haq, who himself used the argument of cultural relativism in his attempts to curtail these rights in Pakistan. The struggle against cultural customs continued to be an important issue in the efforts to protect women’s rights, not least in the context of arguments for modernization and development.Footnote 207 These efforts culminated in the Convention on the Elimination of All Discrimination of Women (CEDAW) of 1967, central provisions of which cannot be justified without recourse to universal, not culture-dependent rights of women.Footnote 208
The arguments supporting the establishment of the apartheid regime on the grounds of cultural relativism – citing the Bantu laws, for example – provide another example of the ideological functions cultural relativism may serve.Footnote 209
It should be noted that this form of relativism differs in decisive aspects from varieties of cultural relativism current today. Importantly, it was based on an ideology of some cultures’ lack of development, paternalism and racism, whereas contemporary forms of cultural relativism predominantly are inspired by the equality of different cultures and the equal worth of all human beings. However, the history of human rights teaches us to consider closely whether not only the former variant, but the latter, too, can serve as a tool to secure the dominion of illegitimate power. We will return to this problem and the question of whether an egalitarian relativism can be held without refuting itself by self-contradiction below.
The politically motivated selectivity of human rights standards was another issue, well exemplified by the many discussions about whether Soviet rule over Eastern Europe constituted colonialism or notFootnote 210 and the lack of criticism by some political actors of Soviet power politics in Eastern Europe, including in Hungary in 1956 and in Czechoslovakia in 1968.Footnote 211 Rulers used human rights arguments hypocritically for all kinds of political purposes, without applying these arguments to their own regimes.Footnote 212
In subsequent human rights politics, actors from the Global South continued to play a decisive roleFootnote 213 – from initiatives on early human rights instruments to the initiation of covenants like the ICERD that catalyzed further development,Footnote 214 through to influencing important steps towards meaningful monitoring systems, focusing first on apartheid and gaining successively universal application,Footnote 215 although such initiatives always faced opposition from the Global South, too – unsurprisingly so, given the kind of regimes involved.Footnote 216 One interesting example is Jamaica, which for some years became a global leader in human rights initiatives.Footnote 217 The universality of human rights as rights to be claimed by all human beings remained the key idea underpinning these politics.Footnote 218 Powers from the Global North often opposed these initiatives, sometimes successfully, sometimes not.Footnote 219
One important issue in the development of human rights as international law is their relation to the idea of self-determination, which features prominently in the international covenants as a central right.Footnote 220 This seems defensible in light of human rights doctrine. Individual self-determination and liberty, necessarily including political rights, cannot be reconciled with a colonial rule that entirely denies or severely limits these rights. Furthermore, colonial rule was often brutal and repressive and led to a plethora of human rights violations. The denial of racial equality is incompatible with the basic human rights of equality and dignity.
Understood in this light, there is no contradiction between individual human rights and the right to self-determination. In fact, the latter serves the purpose of the former. The American revolutionaries’ demand for self-determination was based on this kind of thinking: Independence served the cause of inalienable rights. The constitutional systems of democratic states around the world accordingly are built on the idea of national self-determination under a democratic government bound by human rights.
As a consequence, the anticolonial movement seems naturally wedded to the idea of human rights not only because of the experience of colonial human rights violations, but also because of the aspiration of political autonomy.Footnote 221 But this is just one way in which the right to self-determination was understood – a democratic interpretation based on human rights. The right to self-determination was also put to other political uses in the process of decolonization, where it was basically decoupled from individual rights and turned into a collective right used to justify encroachment upon individual human rights in the domestic system. In these political ideologies, collective independence trumped human rights. In addition, self-determination functioned as a shield against foreign critique and intervention. This stance could and indeed did serve authoritarian regimes. It is important to note the background of this position, however, which was many Third World states’ experience of foreign intervention, often under the pretext of protecting rights and freedom. The right to self-determination is an important normative asset to protect a political community against the many forms of domination and power politics. Justifying such an intervention in the name of human rights consequently is not a step to be taken lightly (if at all). The right to self-determination soon became an internal issue for newly independent states facing their own secessionist movements.Footnote 222
The question of the relation between decolonization and human rights is thus answered not only by the obstacles that the political forces of decolonization were up against, but also by the kind of postcolonial order that was established. For the anticolonial movements, the crucial matter to determine was the nature of the postcolonial regime: “Is political freedom achieved when the national banner rises over the seat of government, the foreign ruler goes, and power passes into the hands of our own leaders? Is the struggle for national independence the struggle to substitute a local oligarchy for the foreign oligarchy?”Footnote 223
The fact that self-determination resulted in regimes disrespectful of human rights has led some to question whether there is in fact any connection between decolonization and human rights.Footnote 224 History teaches a different lesson, however: The ambiguous role of the right to self-determination in the history of international human rights underlines the need for a very nuanced and differentiated approach to the complex role of decolonization in this process. Decolonization was neither simply a human rights movement nor unrelated to human rights.Footnote 225 Sometimes human rights were the foundations of its politics, sometimes they were of no concern.Footnote 226
These ambiguities illustrate the Jamaican diplomat Richardson’s famous observation about “the moment of truth” of global human rights aspirations. At the First UN Conference on Human Rights in Tehran, Richardson, who contributed significantly to the development of human rights, spoke of the moment “when we came face to face with the nature of the beast – when we saw what it means to be promoting the cause of human rights by working through governments” – often, one might want to add, authoritarian or dictatorial governments.Footnote 227
The ambiguous role of the Global South in the development of international human rights is further underlined by the fact that the principled support of human rights from (state) actors from the Global South diminished in lockstep with the increase in the authoritarian regimes that in many countries tragically were the successors of colonial rule.Footnote 228
The vagaries of international politics led to some progress in the development of human rights despite this evolving political landscape, however, with the ironic result that those regimes that had to fear much from the system of human rights supervision contributed significantly to its creation and to the possibility of future scrutiny of their regimes in several important regards (e.g. the development of the right to individual petition to the Commission on Human Rights).Footnote 229 This once again illustrates why it is wrong to overly quickly equate the political intentions of agents with the actual political outcomes of their actions – the mismatch between intentions and results is a basic element of political processes, often with tragic results, but sometimes also with beneficial consequences.
2.7 Lessons to Be Drawn
2.7.1 A First Lesson: The Rediscovery of the Political Roots of Human Rights
The process of the slow becoming of human rights as powerful ethical principles fleshed out and made into the increasingly densely woven law of the land, from the aspirational declarations of the eighteenth century and their roots in the history of ideas to the drafting of the Universal Declaration and – on this basis – to the developed contemporary system of the protection of human rights, was the unsurprising stuff of which historical developments are made. It involved multiple agents with often-competing aims as well as deep controversies, some even leading to violent struggle. Agents’ options were conditioned by social structures, such as pre-World War II nationalism, an established, violently defended colonial system, the facts and political parameters created by World War II, including the power relations of the Cold War, heterogeneous social and political movements, the complex economic parameters of political action in a world with very different economic systems, changing profoundly over time and in the impact they had, decolonization and European integration. Support for human rights in the process spanned a very wide political spectrum, in both religious and secular terms. This is manifest in the making of national constitutions and is also evident for international human rights.
The complex matrix of reasoning of the agents shaping the current human rights system – principles, political expediency and tactics, interests in maintaining or limiting power, different political visions, contextual factors of power relations, for instance – highlights that arguments about the determination of human rights by culture (e.g. the Global North) or religion (e.g. Catholic personalism) miss the point and divert attention from the deeper political and ethical issues at stake.
The historical record displays the major conclusion to be drawn quite clearly: It is as erroneous – be the thrust of the argument apologetic or critical – to make an imaginary essentialized homogeneous Global South the true source of human rights as it is to understand human rights as the product of an imaginary essentialized homogeneous Global North. Human rights are a political project derived from an ethical outlook centered on the respect for individual human beings. The political orientation of the relevant actors is decisive for the development of human rights, not whether they came from the Global North or the Global South. This is illustrated vividly by the ups and downs of the process establishing the current imperfect human rights architecture, both in the Global North and in the Global South. Overlooking this means to depoliticize the struggle for human rights – a fatal flaw of any analysis of such a deeply political project. Arguments that make the legitimacy of human rights’ content dependent upon the particular background of the protagonists or institutions that played a role in shaping them have the unfortunate effect of obfuscating the central conclusions to be drawn from the history of human rights. The question then no longer is what the normative principles and the politics of human rights protagonists and of their foes are, but what their cultural background is.
Eleanor Roosevelt’s stance on the explicit extension of rights to “men and women,” however, was certainly not simply that of a representative of the Global North, nor had she a hidden patriarchal agenda. The activities of persons such as Lakshimi Menon or Hansa Mehta likewise indicate the limited explanatory power of reductionist accounts that link human rights to a particular religious outlook or cultural background – Menon and Mehta were very important for the drafting of the Universal Declaration but were not agents of the Global North, nor of “Christian human rights.” Nor were they early spearheads of the “neoliberalism” that some believe to be at the core of the rise of human rights, as we will see in greater detail later in this inquiry. Colonial powers like the UK or France opposed the application of human rights in their colonies not because of their respective Christian (though confessionally different) religious culture, but because of their colonial interests.Footnote 230 What is important about Pinochet is not that he was from Chile, but his vision of dictatorship. What is important about Álvarez is not his Chilean background, but the force of his arguments for the international protection of human rights.
The central normative issue is whether there is the intention to protect individuals against state power and other threats to central goods of their human existence as a matter of right or not, whatever the background of the actors or institutions involved may be. The question is whether the individual counts and to what degree they do so compared to other aims that motivate political action – from the protection of received power and privilege to the achievement of a classless society where all antagonisms cease to exist. Human rights are the language neither of the Global North nor of the Global South.Footnote 231 They are the language of all who concluded from their principles and experience that human beings matter, that their opportunity to pursue their own idea of personal well-being cannot be traded for other goods and that – in light of centuries of political practice – societies need to establish legally protected rights to secure the possibility for humans to flourish. There were forces that promoted and forces that acted against this idea in both the Global North and the Global South. During the time when the International Bill of Human Rights was made, countries of the Global North were engaged in colonial and postcolonial wars, from Algeria to Vietnam. Democratic movements were crushed, as in the Prague Spring. Dictatorship, often supported by the power centers of the Global North, ruled for decades in the Global South, from Chile to Uganda, from Argentina to the Philippines. Human rights found both champions and vicious foes in working-class movements, in different religious communities and in diverse political currents.
Furthermore, we simply cannot draw conclusions about an individual’s or political group’s attitude towards human rights from their general political outlook, aside from extreme cases such as fascism. It is possible to be a working-class activist who deeply (and honestly) believes in the equality of human beings and still be prepared to forfeit the rights of persons for the greater good of a classless society (part of the tragedy of some major socialist and communist movements). It is possible to believe in the duty of charity on religious grounds and still be prepared to sacrifice individuals on the altar of the higher purposes of organized religion. It is possible to be a champion of freedom but nevertheless support the suppression of strikes because of the towering importance of economic profits. It is possible to fight colonial oppression and still show little regard for human rights because of the perceived needs of the struggle against the colonizer or because of the perceived necessities of development. All of these justifications may be nothing but cynical ideology masking other interests – but they need not be.
One of the key lessons of the twentieth century and its twisted political course is that the idea of human rights cuts across simply drawn religious and cultural divides and political party lines – this is both part of its frailty and part of its strength. The analysis of these historical processes becomes shamefully diminished in depth if these intricacies are glossed over with the rough brush of simplistic monocausal explanations.
The analysis of the origin of human rights therefore requires much more precise historical and political analysis, looking at the kind of regimes that acted and their political agendas and goals, always differentiating between governments and those governed. The views on human rights embraced by those imprisoning or killing their opposition and repressing dissent are after all not necessarily the same as the views of those who are the object of these measures. This analysis admittedly is much more demanding than thinking in the rough grids of North/South divides and the like. However, there is no alternative for a serious history of human rights.
2.7.2 A Second Lesson: The Rediscovery of Autonomous Critical Thought
In the light of these findings, it is important to clarify what exactly is meant by “origin of human rights.” One understanding seems to be that “origin” refers to an identifiable agent with a particular background (say, Field Marshal Smuts, or the philosopher Jacques Maritain). Some properties of this agent’s respective background are then taken to determine their views and intentions, which in turn somehow determine the nature of human rights – Smuts’ racism the content of the idea of human dignity, or Maritain’s Catholicism the true meaning of the Universal Declaration, for instance. This thought can be framed in broader terms, including the wider cultural context in which these individuals were working. It can encompass institutions and the organs of states (e.g. “the government of the USA”) and peter out in very thinly defined ideas such as “the Global North,” “European,” “Indian,” “the (semi-)periphery,” without determining what “European” means exactly and what element of the concept of human rights depends on the “Europeanness” of a specific actor in any sufficiently precise manner. Which element of “Indianness” made Hansa Mehta pursue gender-neutral language in the Universal Declaration, and which element of “Americanness” led Eleanor Roosevelt to oppose it? Why does this matter for our understanding of human rights norms?
Origins can mean other things as well, such as a social structure, the capitalist economy or a system of ideas like “Western thought.” Here, again, the problems arise of what these mean exactly and what the supposed causal connection to a concrete human rights position is. Why is Hansa Mehta’s opinion about gender-neutral language capitalist or an expression of “Western thought” (as some take all human rights to be), even though it goes against what Eleanor Roosevelt, who came from a Western capitalist country, admonished her to do?
This kind of analysis seems to imply that individuals’ independent and critical ethical or legal reflections and insights do not play an interesting role in the process of developing the human rights idea. The origin of human rights must lie somewhere else, it is assumed. The free exercise of human thought, leading more often than not to error and illusions, but in principle capable of grasping something that stands the test of critical reflection, plays no decisive role in such accounts. But is this plausible? Did these agents not think? How exactly was their background relevant for their reflections? How important was it? Could they just not help thinking in a European, Indian or South American way? Are human beings mere puppets on the strings of their culture?
This stance also seems to imply that there cannot be some common human framework of experience and understanding. It leads to the highly dubitable consequence of diminishing the importance of human beings’ capacity for autonomous, authentic thought independent of the properties of their respective backgrounds, most importantly the place and cultural context in which they happen to live.
Social history, the struggles for progress and in particular the history of human rights tell a different story, as we have seen. There are of course many social and cultural influences on human beings. The place and time of a given human life matters profoundly for that person’s outlook. But time and place are capacious concepts in the intellectual and emotional lives of human beings – one can communicate with voices from very different times and places and profit, grow with and learn from them. Moreover, human beings as subjects of autonomous thinking ultimately are able to transcend given social and cultural contexts – this is part of the epistemic dignity of individuals, and the ultimate cause of the constant transformation of human cultures.Footnote 232
2.8 Politics, Ethics and a Preliminary Conclusion
These two lessons are no mere side issues for the cognitive interests of this inquiry. On the contrary, they refocus our attention on a crucial problem. If everything hinges upon the ethical and political reasons for establishing a system of legal protection of human rights on the constitutional and international level and on the reasons for the work creating the political structures for this endeavor in institutional frameworks and civil society, and if these reasons are not simply the function of geographical settings and cultural or religious background factors, then the central questions are: What are the grounds for this struggle for human rights? If human rights are about the ethical calibration of political purposes and legal institutions, what are the ethical determinants of political and legal thought in the defense of human rights? And can these ethical principles be justified? What about the justification of the many detailed questions that flesh out what human rights really mean – from their personal scope to their possible legitimate limitations? What does the understanding of the human mind add to the answers to these questions?
If, by contrast, the result of our inquiry had been different, if it had shown that human rights are an expression of the colonial ideology of the Global North, the inquiry would have a very different object – the study of the psychology of ideology, perhaps.
The central lesson of the genealogy of human rights is that this genealogy is not enough to understand the ascent and current reality of human rights. The argument about the actual manifold origins of the current human rights system is – as already mentioned – both true and important. But even if this were not so, the case of the legitimacy of human rights would not have been settled. Even if human rights had been of purely European (or Indian or African) origin, we would still face the question of how convincing this idea of human rights is, after all (wherever it stems from). Are there reasons that are relevant to all human beings or not? Are all humans able to comprehend these reasons? In order to understand human rights and their role in history, it seems, we have to turn to the grounds of their justification and the cognitive preconditions of their formulation.
The explicit formulation of human rights did not spring from nowhere. The declarations of the eighteenth century had deep roots in history. The question to address now is whether the results formulated concerning the more recent history of human rights resonate well with what the earlier history of human rights – or, more precisely, the history of those normative ideas that ultimately led to explicit human rights in ethics and law – teaches us. Does this history confirm these findings, or does it present them in an entirely different light? The following chapter will shed some light on this question.
Oh unhappy women! O the criminal deeds of the gods! What is to happen? To what tribunal can we appeal when we are being done to death by the injustice of our masters?
They were very well formed, with handsome bodies and good faces. … They do not carry arms nor are they acquainted with them, because I showed them swords and they took them by the edge and through ignorance cut themselves. They have no iron. Their javelins are shafts without iron and some of them have at the end a fish tooth and others of other things. All of them are alike are of good-sized stature and carry themselves well. … They should be good and intelligent servants …. They brought balls of spun cotton and parrots and javelins and other little things that it would be tiresome to write down, and they gave everything for anything that was given to them. I was attentive and labored to find out if there was any gold; and I saw that some of them wore a little piece hung in a hole that they have in their noses. … And these people are very gentle …. [W]henever Your Highnesses may command, all of them can be taken to Castile or held captive in this same island; because with fifty men all of them could be held in subjection and can be made to do whatever one might wish.
Manifiesto es que … la libertad sea la cosa más preciosa y suprema en todos los bienes deste mundo temporales, y tan amada y amiga de todas las criaturas.Footnote 1
How dare you talk to us of duty when we stand waist deep in the toxin of our past?
3.1 Back to the Roots or Trapped in Anachronism?
The history of human rights since the eighteenth century teaches us that these rights are based on ideas that seem to transcend the parochial boundaries of culture, religion, imaginary race, class or any other such characteristics. They appear to speak forcefully to human understanding, albeit not irresistibly so.
One question raised by the development of the last 250 years concerns the deeper roots of these ideas about human rights in history. Are there any, and if so, of which kind? The answer to this question adds a further piece to the puzzle of the origins of human rights in the ethical and legal life of the human species. Furthermore, it helps us to clarify the exact nature of the object of our inquiry by investigating whether human rights, seen from this wider perspective, are a Western idea of the Enlightenment or the Natural Law tradition, a piece of twentieth-century ideology, a justified normative concept accessible to all (the foundational assumption of the human rights movement) or something else altogether. This question opens up a vast territory, many aspects of which are not particularly well charted, although outstanding scholarship has explored some of them. The following remarks cannot aspire to fill all of these gaps. They also cannot engage with the full complex social, political, economic, religious and cultural context of the historical examples of thought about rights we will discuss. Moreover and importantly, they imply no assumptions about a linear, continuous historical process, coherent ideas about rights over millennia or simple causal connections between the thoughts about rights of different epochs, but serve limited expository purposes: They pursue merely the modest aim of highlighting some important findings for the specific cognitive interests of our inquiry.
3.2 A Standard Thesis
A standard thesis encountered in discussions about the history of human rights holds that neither antiquity nor cultures not considered “Western” had any concept of rights, let alone human rights. Rather, the term right referred only to a property of a state of affairs, “namely that the state of affairs is right or just or fair.”Footnote 2
According to this view, the modern sense of a subjective right emerged in the European Middle Ages in the work of canonists. Only since the twelfth and thirteenth centuries has the term ius come to cover not only what is fair, but also the meaning of the modern sense of a right – an “entitlement that a person possesses to control or claim something.”Footnote 3 This set in motion the process that finally led to the idea of human rights. In this process, the idea of natural rights played a key role. Rights instruments and documents before the eighteenth century, such as the Edict of Milan (313) by Emperor Constantine on freedom of religion, the Magna Carta (1215), the Virginia Charter (1606), the Petition of Right (1628), the Habeas Corpus Act (1679) and the Bill of Rights (1688/1689) are not seen to properly belong to the history of human rights, however. This is because they did not protect rights of humans by virtue of their humanity, but the rights of specific groups of people – for instance, the entitlements of the feudal lords of England secured by the Magna Carta or the ancient rights of Englishmen secured by the Bill of Rights.Footnote 4 Consequently, it would be an error to list such rights as predecessors of human rights.
This thesis implies that not only ancient cultures, but also non-European cultures were unfamiliar with the idea of rights. Before the efforts of the glossators, who brought something new into the world, human beings around the world lived in a world without rights, this thesis seems to suggest.
What to think of this thesis, especially if one gives up certain simplistic “evolutionary prejudices”Footnote 5 about the development of law from primitive beginnings to complex modern (European) codes? Important documents such as the abovementioned Edict of Milan (313) date to before the supposed invention of the concept of “rights” in medieval thinking. The fact that much medieval thought on law and justice is based on ancient sources, in philosophy as much as in law, is another reason that should deepen our interest in the contributions of earlier epochs.
But not only that. As already mentioned above, events like the “Scramble for Africa” led to a confrontation between different epochs of human cultural development. The modern, technologically and scientifically advanced culture of Europe encountered the cultures of Africa and other continents, which in many respects were often more like some of those many and diverse human ways of living of an earlier age. Some indigenous cultures may thus serve as one indirect clue to the moral conceptual framework of earlier human societies, which were acephalous and based on oral traditions, like the few human groups who still live under comparable conditions today.Footnote 6
Given the history of racism, it is important to note two things about this methodological approach: First, it does not imply any hierarchy between these cultures, simplistic notions about cultural advancement aside that are already refuted by the comportment of Europeans during colonization. Second, such developmental differences obviously do not say anything about the rights of the individuals living in these cultures, which are independent of this development. Just because somebody has not acquired the skills to build computers, it does not follow that they have less worth as a person. Your right to life does not depend on your digital competences.
These indigenous cultures will form our first object of study, based on the assumption that what we know about the moral ideas of indigenous African people during the colonial period, for instance, will tell us something about our remoter past. The point of this inquiry is not to show that people like the Herero already had a differentiated bill of human rights, including the doctrinal tools of a proportionality or strict scrutiny test. Nor is it to assume that they were “contemporary ancestors.”Footnote 7 The point of studying the moral universe of indigenous people is a much more subtle but still crucially important one. This study may tell us something about the moral intuitions and concepts with which these human beings reacted to the practices of slavery, exploitation, mass killings and – as in the case of the Herero – genocide even in narrow technical legal terms, all of which today are regarded as paradigmatic cases of human rights violations. These intuitions were not moral judgments in explicit human rights terms. But they may tell us something important about the seeds of human moral thought that slowly grew into the concept of human rights.Footnote 8 This inquiry has a moral dimension, too: By reasserting their inner moral world, it contributes to restoring the full humanity and individuality of the victims of these crimes.Footnote 9
3.3 Not a Moral Blank Slate: The Perspective of Indigenous People
Indigenous people seem to be something of a blind spot for many current human rights histories. This is not surprising if the leading research paradigm is that human rights are the product of European culture, whether stemming from the revival of Roman law in the Middle Ages,Footnote 10 novel reading in the eighteenth centuryFootnote 11 or other such culture-specific developments.
There is a traditional strand of research that investigates the law of early human acephalous societies and includes famous early and controversial work in legal anthropology on so-called primitive societiesFootnote 12 – which are in fact not primitive at all. This research already shows in often-fascinating detail that these societies have intricate normative codes and concepts.
A prominent example of contemporary research – much praised and controversially discussed – that underlines the importance of not neglecting indigenous cultures when writing the history of normative concepts was produced by David Graeber and David Wengrow. They argue that there is much new archaeological and anthropological evidence from early cultures, including those from the Upper Paleolithic, to suggest that there was a great variety of political forms – egalitarian, proto-democratic, participatory, cooperative and peaceful, but also hierarchical, authoritarian and full of violence and cruelty.Footnote 13 Indigenous cultures were not living in some kind of dream-like mode of existence that never changed, but rather they took conscious choices about what we today call the political organization of their societies – sometimes increasing equality, care for others and participation, sometimes erecting authoritarian systems, among many other forms of social order.Footnote 14 Graeber and Wengrow try to show that some expressions of indigenous thought even influenced the Enlightenment’s political philosophy of freedom and equality, which was stimulated by the indigenous critique of European civilization.Footnote 15 Moreover, the desire for liberty is well-documented in many ancient societies.Footnote 16
Contrary to some popular conceptions that hunter-gatherers lived in small, competing groups, the respective cultures often spanned geographically huge spaces, in which individuals moved widely, creating groups that were not based on biological kinship relations in any discernable sense but rather on common cultural bonds:Footnote 17 “[T]he common stereotype that ‘primitive’ peoples saw anyone outside their particular local group only as enemies appears to be entirely groundless.”Footnote 18 Hunter-gatherers already created city-like communities producing impressive artifacts and architecture.Footnote 19 In particular, hierarchical state-like structures were not the necessary outcome of the slow introduction of agriculture – large-scale communities based on forms of communal participation developed in different forms as well.Footnote 20 This variety of social organization was based on complex normative concepts, including subjective rights, from the right to perform certain sacred actions to differentiated rights to the use of (communal) property.Footnote 21 Thus, not only the myth of the “noble savage” but also the myth of the “stupid savage” has to be abandoned.Footnote 22 As soon as modern humans had developed, they started – endowed with common biological and cognitive abilities constituting the “psychic unity of mankind” – “doing human things,”Footnote 23 which encompassed, one may add, normative “human things.” History has to stop “infantilizing Non-Westerners” and restore “our ancestors to their whole humanity.”Footnote 24
If we return to the example of the subjugation of Africa, particularly in the nineteenth century, we find a considerable body of work that documents indigenous African people’s reactions to these events. Such studies on indigenous people around the world present evident methodological problems, not least that some of this evidence has been produced and handed down through the colonial machinery, such as governmental reports, court proceedings, diaries of missionaries and so forth. Analyses thus have to factor in the fact that such sources may be heavily influenced by colonial perspectives and particular interests.Footnote 25
Having said this, there are still many impressive testimonies about the suffering of colonized people at this time and – crucially for our inquiry – about their sense of the normative wrongness of what had happened to them.
The Herero rebellion is a case in point. The Herero were a nomadic people. Their pastoral way of life changed over time, and many aspects of its precolonial development remain unclear.Footnote 26 In the second half of the nineteenth century, influences of various kinds, including those of the Christian missionaries, made themselves felt. The Herero had sophisticated sets of rules that organized and structured their communal life. These included rules for the use of land, the ownership of cattle, defining the territorial claims of certain groups, ceremonial matters, spiritual practices, family life and so forth. It is impossible to describe this way of life and the normative concepts and thoughts that underpin it without a terminology including concepts such as claims (to cattle, to land use, to territory) and duties (not to take away the cattle of somebody else, to accept the land use or territory of others) – let alone to practice it without access to normative categories like claims and duties. It thus seems implausible to assert that such normative phenomena were alien to the Herero.
The Herero’s fight against their German aggressors underlines these findings, and in matters that relate directly to human rights. Trying to reconstruct the normative world of people such as the Herero and their perception of the events at that time obviously is not an easy task. Various sources and studies document the reasons for the rebellion – basically, it constituted self-defense against invaders who took away the Herero’s land, property and possibility of gaining their livelihood, threatening their way of life. The Germans failed to uphold prior arrangements by contract. The Herero’s complaints about these matters are based on normative ideas, not least the claims they thought they had to their land, cattle and way of life.
One such source, the report of the German General Staff about the military campaign against the Herero, provides an interesting glimpse into what was going on. This report cannot be suspected of idealizing the enemy, although the caveat about the effects of colonial perspectives holds here, too. The report outlines the reasons for the rebellion and in this context highlights the Herero’s will to resist the appropriation of their land, cattle and labor by the colonizing power. In addition, it underlines two other factors: first, the warlike characteristics of the Herero; and second, their desire for freedom and independence. The report states that the Herero possess a “sense of freedom and independence” (Freiheits- und Unabhängigkeitssinn) rarely found among African peoples.Footnote 27 They united with former adversaries to fight the “intruder” who threatened their “independence” (Unabhängigkeit) and “freedom” (Freiheit). Their resistance showed “how strong [their] sense of freedom and independence” was. They were not “weaklings” (Schwächlinge) who could be won over by “being bought” (Kauf) or negotiation, but instead were determined not to be subdued without offering fierce resistance.Footnote 28 The main reason for the rebellion, the report concludes, thus ultimately is this “warlike and freedom-loving nature” of the Herero.Footnote 29
So freedom clearly mattered to the Herero, and enough to fight one of the world’s major military powers. Furthermore, it does not seem plausible that the freedom they fought for was only the factual ability to act in certain ways without obstacle – the freedom of the hare to escape the fox, as it were – and not the defense of a normative position, the normative claim to freedom accompanied by the correlated duty of the German invaders to respect this freedom. The sources show that the Herero framed their fight in normative terms, referring to the injustice of their treatment by the Germans, including the unjust lack of sanctions for perpetrators of crimes. This implies that they believed that they could claim to be treated differently and that the Germans had a duty to do so. The Herero defended claims to land, cattle and the integrity of holy sites, and there is no reason to believe that this was not true for their freedom as well.
Such conclusions underline how important it is to break with the often-racist idea of “savages.” A “savage” is someone who lacks basic cognitive abilities, including moral orientation, and is prey to beast-like impulses. The truth is that the European invaders encountered not savages, but human beings with complex moral concepts and rules, embodied in proto-legal or legal norms (depending on the concept of law used). This only deepens the horror of what happened to the Herero: The human beings starved to death in the Namibian desert must have felt not only the physical pain of their treatment, but also the moral outrage of their death.
This brief account encourages us to consider more closely what the history of slavery and the mass killings or even genocide of indigenous peoples can teach us about the deeper sources of human rights. Two more examples from different backgrounds indicate the kinds of question that arise if one reflects on the meaning of the testimonies of the indigenous victims.
Our first example concerns Yahling Dahbo, a former slave. Dahbo gave an account of the conditions of her life as a slave at a trial concerning her emancipation after British rule was established in The Gambia in 1889. Britain took some (albeit limited) measures to end slavery in the Crown Colony, although the practice persisted until 1930. Dahbo stated: “It was against my wish that Prisoner came to me at night, being a slave I was afraid. … I was at Prisoner’s as a slave. Nobody has put the word slave into my mouth. Prisoner himself used to tell us that we were his slaves. That is all the reason I have for saying I am a slave. It is not because I [was beaten] that I say that I am a slave. All the world beats. Not because I make rice farms. If you are in the hands of a person, if you are free born you will know.”Footnote 30
At the same trial, another woman, Dado Bass, testified about her life with the slaveholder: “I know I am a slave because they never tie free people or put them in irons. Prisoner used to tie me and put me in irons. He used to tie my hands with a rope. He used to put me in irons.”Footnote 31
A third women, Maladdo Mangah, had this to report: “It was not my will or pleasure to go with the prisoner. I could not help myself. I am a slave. … I have a child. She is in the hands of Mr. Edwin [the slaveholder]. Fatou James took the child at Bathurst saying she was a slave. It was not with my consent. I cried.”
What are we to conclude from this dry protocol of the answers given by these women to the questions of the court? Does Yahling Dahbo’s testimony simply report the brute fact of harm, or is there a normative dimension to her suffering? Did she evaluate the rape she endured in some kind of normative framework? Did she think (in whatever terms) that she could justifiably demand that this not happen and that the slaveholder was bound not to rape her, even though the customs of a slave society were on his side? What are the reasons why this is naturally assumed for European women of this time but not for her? Conversely, what are the reasons to think that the experience and evaluation of both African and European women share crucial common elements? Does rape only constitute a normatively evaluated harm after a cultural development comparable to that of Europe?
What about Dahbo’s longing for freedom? Did it have a normative dimension, or was it just a non-normative wish, like “I wish I could fly?”
How did Dado Bass feel, and what did she think when the slaveowner placed a rope around her hands and put her in irons? What about Maladdo Mangah? What does it mean that it was not her “will or pleasure to go” with the slave holder? What does it mean that she thought her consent should have mattered when she was forcibly separated from her child? Did she think she had a claim to be asked about the separation? What was going on inside her when she cried? Was her pain accompanied by some kind of moral outrage?
Our second example is taken from the report of a chief of the Native American Pomo. Based on the oral accounts of eyewitnesses of an 1850 massacre during the genocide against Native Americans in California, he stated:
[O]ne old lady a (indian) told about what she saw while hiding under abank, in under aover hanging tuleys [bulrushes]. … alittle ways from she, said layed awoman shoot through the shoulder. she held her little baby in her arms. two white men came running torge the women and baby, they stabed the women and the baby and, and threw both of them over the bank in to the water. she said she heard the woman say, O my baby; she when they [the survivors] gathered the dead, they found all the little ones were killed by being stabed, and many of the women were also killed [by] stabbing … They called it the siland creek (Ba-Don-Bi-Da-Meh).Footnote 32
What do we assume about the perceptions of this dying mother in the last moments of her life? What was the exact nature of her attitude towards the death of her child? What did the people of her community think? What would we assume if the mother were Swiss? Is the inner emotional and moral world of an indigenous woman flat and impoverished, whereas the inner world of a Swiss woman is differentiated and rich? Why the one, why the other?
Many such questions present themselves if one engages more intensely with this kind of research. However, the above remarks should suffice to show plausibly that some basic elements relevant for the history of the idea of human rights can be found in sources other than the canonical texts of the European history of thought and European or “Western” cultural practices and historical records. These basic elements include powerful intuitions about the value of freedom and strong moral beliefs about one’s claims to goods of fundamental importance for human life and correlated duties of others.
These findings are important for the question of who has epistemic access to the idea of human rights. Further analysis will show that many steps and transformations were required to bridge the gap between such elementary intuitions and beliefs and the explicit concept of human rights as understood today. These intuitions and beliefs are, however, part of the ethical raw material for developing the idea of human rights, and as such they are not beyond the reach of any human being.
A further conclusion suggests itself, if we take the methodological step mentioned above and interpret such results as providing some clues about the lifeworlds of cultures in the more distant past, albeit not mistaking them for a “direct window on the past,” as clarified above. In light of these findings, we should take seriously the possibility that the human beings of these times were no moral blank slates, but rather lived in a differentiated normative lifeworld, as did the Herero, other indigenous peoples or indeed any other human group (including ourselves) – a lifeworld that historians of human rights have taken too little interest in thus far.
Consequently, the normative dimensions of events such as the Herero rebellion, the slave women’s perception of their lot and the precise nature of the experience of the dying Pomo mother cradling her stabbed child properly belong in a history of human rights. Indigenous people are no strangers to this history, and their experience matters.
These remarks do not imply that indigenous people only had rights because they entertained subjective moral beliefs about their justified claims. There is no doubt that human beings have rights even if they are not conscious of them. A four-year-old child has a right to life, even though they have no understanding of this idea. The subjective belief that one is a rights-holder is not an existence condition of the rights of humans. The point of these observations is only to identify the traces of this idea in the moral experience of human beings in order to understand its deeper roots in the human life form.
The next step of our inquiry will investigate whether such findings are challenged or bolstered by what we know about the relevant normative ideas in antiquity. Here, too, the aim is not to discover full concepts of human rights in ancient texts or practices. Rather, the goal continues to be to go back to the roots of the idea of human rights to identify the elementary moral notions that make it possible to form the idea of human rights.
3.4 The Many Forms of Normative Thought in Ancient Times
3.4.1 The Imagery of Epics
When talking of antiquity, our interest goes beyond just European or even only Greek and Roman antiquity. Such a narrow focus would unduly neglect important recorded sources of other regions and cultures (e.g. from India or China). Nor should we conclude from the fact that we do not have many recorded sources of certain times and cultures (e.g. the oral cultures of Africa) that these cultures have produced nothing of interest. They almost certainly did.
Despite these limitations and the fragmentary nature of the historical record, surviving sources offer many interesting points of departure for research on the wider history of subjective rights and their connection with liberty, equality and ideas of human worth as a subchapter of the history of human rights. Serious, open-minded study of cultures that formerly and wrongly were called “primitive” may provide some interesting hints about the use of rights in early human forms of life, as we have just seen. In addition, the oldest known legal codes of the third and second millennia bce from Sumer and Babylon seem to express or imply a concept of a right – a finding that is hard to reconcile with the thesis that the concept is a much more recent invention of European legal thought.Footnote 33 The question of whether the same holds for the Vedas, the oldest of which also stem from the second millennium bce, is an important matter. It is equally fruitful to investigate whether rules such as the Ten Commandments entail something about rights. This is no trivial question, for the formulation of the normative content of a given moral or legal code as a command is not sufficient to rule out the possibility that this code implies such rights, as we have seen above.
For open-minded research that at the same time is critically aware of the danger of anachronism, in light of our methodological findings about the historiography of human rights, it may turn out to be a fruitful research strategy not to turn immediately to legal texts, as is often done, but to include wider cultural manifestations of normative ideas in our analysis to gain a more inclusive picture of the normative thinking of a given culture and epoch, which is never limited to the sphere of law.
One very interesting issue in this context is the imagery of epics. A good example of the depth of the questions these works of art raise is Homer’s Odyssey, a text whose outstanding importance for the cultural development of humankind is beyond doubt. One central part of the epic concerns the suitors’ abuse of Odysseus’ property. They “continue to slay his thronging sheep and his spiral-horned shambling cattle,” as Athena observes,Footnote 34 and they harass Penelope because “all prayed, each that he might lie in bed with her.”Footnote 35 This is described as a moral outrage, justifying the anger of Odysseus and his son, Telemachos. The suitors are wrong to use Odysseus’ goods because the cattle, wine and other amenities they feast on are the property of the absent Odysseus and of Telemachos. There is no doubt that the suitors are violating a rule by indulging in this behavior. It seems equally obvious that Odysseus and his heir, Telemachos, had a claim that their cattle not be slaughtered and their goods not squandered, and that the suitors were under a correlative duty not to do so. In addition, Odysseus and his son enjoyed the liberty to either dispose of their goods (e.g. by organizing a feast) or not do so, and the suitors could not demand the one or the other – they had, to use Hohfeldian terminology, a no-right that Odysseus and Telemachos do so, in the same way that Odysseus and Telemachos enjoyed a privilege to throw a party. This normative position is acknowledged by one of the suitors: “Never may that man come who by violence and against your will shall wrest your possessions from you, while men yet live in Ithaca.”Footnote 36
Odysseus’ terrible revenge on the suitors when he finally returns is not presented as a wanton act of cruelty but justified with reference to the abuse of the goods of his house and the attempt to force Penelope into marriage while he is still alive, thus being the violation of rights he is entitled to protect, some of them concerning Penelope evidently of a patriarchal nature. Not surprisingly, then, the attempt of the suitors to appease him consists in offering to pay him compensation for the damage inflicted, which implies that he had a claim that they forbear from what they have done.Footnote 37
Such observations are an invitation to track down the concept of a right in more detail – for example, in private law in the pluralistic normative orders of antiquity, which were of great complexity comparable in more than one respect to contemporary legal systems.Footnote 38 Some such rules even have clear significance for issues that haunt human rights law today, though evidently not in the form of current rights conceptions. A good example is represented by the legal rights of women – very limited in Athens, but quite strong in Egypt in the Hellenistic period, for instance.Footnote 39
No attempt, however, can be made to do any justice even to these and other very ancient sources that are of evident importance if one takes this wider, non-Eurocentric perspective on the genealogy of rights. Nor is this necessary for the subject matter at hand. Instead, the discussion will turn to an example that is particularly relevant for the history of human rights: the first politically, ethically and legally entrenched democratic order on record in ancient Athens. The reason for this choice is that democracy is not just any system of government but the attempt to create an institutional framework that does justice to the autonomy, equality and dignity of human beings and thus to those values that today are understood to be at the core of human rights. There is an intense debate about the exact relation between democracy and human rights.Footnote 40 That human rights are central for any theory of democracy is, however, beyond doubt. It seems therefore worthwhile to investigate what traces of these ideas can be found in the rudimentary forms of democracy of antiquity.
The discussion of this and other related matters, its necessary selectivity notwithstanding, will add further arguments to bolster the point that the idea of rights is far from a recent invention, as already suggested in the discussion of the normative lifeworlds of indigenous societies. Moreover, innovative thoughts about equality, freedom and human worth are not the prerogative of modernity, even in an explicitly cosmopolitan perspective.
There are many other examples from other spheres of the law of antiquity where rights play a role – for example, if a concrete person was awarded quasi-citizenship rights as a specific honor, including the right to enter a city, to reside there or to be professionally active.Footnote 41 These examples further illustrate that rights were part of the normative currency of the age.
3.4.2 Democracy and Rights
Many regarded democracy in ancient Greece as the political expression of equality and the principles of justice spelled out by equality. Accordingly, Isonomia, equal law, most probably even preceded Demokratia as a proper name for a democratic form of government.Footnote 42
The egalitarian character of the democratic form of government established in Athens was limited in obvious and significant ways, not least through the exclusion of women and slaves. Furthermore, democratic policy made no attempt to create social equality. Despite these grave shortcomings, from a historical perspective the idea of equalitarian self-rule as the core meaning of Isonomia was still a striking achievement, in particular for the disadvantaged classes: “It promised the poorest citizens an equal right in the law-making, law-administration, law-enforcing power of the state. It expressed the spirit of a constitution, hitherto undreamed of in civilized society, which declared that the poor man’s share in law and political office was equal to that of the noble and the rich.”Footnote 43
This order was established in several steps that gradually increased equality and transformed the Solonian order, which had limited magistracies to the members of the wealthier classes but already admitted every citizen to the courts before which officials could be held accountable under the law: “The demand for political equality, first voiced by only the poorest sections of the demos, became the first article of the democratic creed and was progressively implemented in waves of far-reaching reforms which swept away one by one all constitutional guarantees of political privilege for the upper classes.”Footnote 44
The democratic constitution of Athens enabling “the rule of the majority” included as its key elements the selection of magistrates by lot, the auditing of public officials, thus holding them accountable, and the referral of all resolutions to the authority of the public, as Herodotus put on record in one of the oldest reflections on the topic of democracy.Footnote 45 A further key element was the citizens’ ability to initiate motions and legislation in the assembly (ekklesia).Footnote 46 The entitlements to political participation and to access to office doubtlessly can be called rights. They encompassed the claims to be included in the group from which a person was selected by lot, to attend the assembly with a vote that counted and to initiate a decision of the assembly, as well as corresponding duties of others to act accordingly: Officials in fact were obligated to include persons with such entitlements among those that could be drawn by lot, to count the votes of such persons as ones codetermining the final outcome of an assembly decision and to deal appropriately with initiatives of entitled citizens.Footnote 47
Ancient Greek had no proper term for what is now called a subjective right or claim. The meaning of this term was expressed in various paraphrasesFootnote 48 or implied in particular human practices, as not only Odysseus’ and Telemachos’ actions illustrate. The importance of the idea in practical terms is illustrated perhaps most dramatically by its decisive role in the fundamental normative architecture of the democratic political order outlined above. This is another reminder that we should not allow ourselves to be led astray by the linguistic particularities of a given language and draw wrong conclusions about the ideas important to a particular culture. Just because a certain human community expresses itself differently than another does not mean that certain ideas are alien to this culture.
Political rights were an explicit and decisive issue in the political struggles about the democratic constitution – for example, in the context of active or passive electoral rights, access to office and decision-making. These issues were not arcane elitist debates but the daily bread of politics. Consider the classic speech of Athenagoras, the democratic leader of Syracuse during the early stages of Athens’ doomed Sicilian campaign during the Peloponnesian War, who in his address to the popular assembly on the eve of war asked the young oligarchs the following rhetorical question: “Do you dislike having the same rights like all others? But how it is just for people who are the same not to have the same?”Footnote 49 The core of democracy, he argues, is that everyone has the same rights and duties.Footnote 50 The explicit linking of equal rights and justice in Athenagoras’ speech echoes widely held democratic beliefs: “There is nothing more hostile to a city than a tyrant. In the first place, there are no common laws in such a city, and one man, keeping the law in his own hands, holds sway. This is unjust. When the laws are written, both the powerless and the rich have equal access to justice, … and the little man, if he has right on his side, defeats the big man.”Footnote 51 These views draw attention to the relation between justice, equality and rights, as well as to the empowering function of rights, and thus to questions crucial for our inquiry.
Isonomia, equal law in this sense, and Isokratia, equal share in government, were essential to what later was termed the democratic idea. A further foundational feature was Isegoria, free speech, to which we will turn after exploring the meaning of equality.
3.4.3 Equality
In Greek antiquity, the discussion about equality was interwoven not only with topics such as democracy and the political rights of citizens. Social inequality, relations with – in the Greek case – barbarians (that is, all non-Greek-speaking people) and, of course, slavery were also of great importance. These are all issues that remain intimately linked to or even form core areas of human rights debates today. A short glance at these issues thus may prove fruitful.
Despite the egalitarian political structure of the Athenian democracy among the limited group of people that counted as equals, democratic politics did not aim at material redistribution within the Athenian society. There were utopian schemes that failed to become reality and instead ended up the object of comedic ridicule.Footnote 52 The social reality of democracy was based on the “astonishing fact that the man who, as citizen, shares the kingly dignity, the sovereign power of the demos, may yet as a private individual labour under the indignity of utter destitution.”Footnote 53
The equality discussed thus far was the political equality of Athenian (male) citizens – as it was still 2,500 years later at the dawn of the human rights revolutions. But at least some of the limits of equality were the object of debate. The sophist Antiphon, for instance, famously argued against distinctions based upon birth and importantly ethnic origin, very clearly stating a universalist, cosmopolitan idea of the equality of all human beings:
The sons of noble fathers we respect and look up to, but those from humble homes we neither respect nor look up to. In this we behave to one another like barbarians, since by nature we are all made to be alike in all respects, both barbarians and Greeks. This can be seen from the needs which all men have. [They can all be provided in the same way by all men, and in all this] none of us is marked off as either barbarian or Greek; for we all breathe the air with our mouth and nostrils and [eat with our hands].Footnote 54
This passage rejects distinctions based upon social class, race and ethnic origin. It does so on the grounds of an anthropological theory that asserts the basic equal properties of all human beings. Antiphon explicitly includes the non-Greeks, the barbarians, which we should note means all non-Greeks. The argument of all humans’ shared existential conditions is a powerful one and of great significance for the history of ideas. It has been appealed to by human beings in greatest need throughout history – as mirrored both in Shylock’s plea for recognition in Shakespeare’s literary reflection of human lifeFootnote 55 and in Primo Levi’s self-assertion against the deathly and very real grip of racist ideology in Auschwitz.Footnote 56 It also lends itself quite clearly to a critique of patriarchal power structures. One needs, however, to recognize that the argument for the equal respect of all persons based on the equal properties of all human beings applies to women, too – unfortunately no small step in cultural and political terms, as history has proved.
In Antiphon’s view, the equality of human beings has a normative consequence. We owe everybody equal respect, as otherwise we are behaving like “barbarians” (in this context, “barbarian” is used to refer to uneducated people who lack proper understanding rather than “non-Greeks”).Footnote 57 At this point an interesting question arises: What is the normative correlative to respect owed to others? What are the normative positions of those to whom respect is owed in relation to the agent who owes respect? The fragment remains silent on this issue. It does not say that people without a “noble father” have a right to respect. One could therefore argue that there is no such right, that there is simply a blank space, that there is an entirely one-sided relation that consists of nothing but, first, a person’s respect for others and, second, the obligation to show this respect to others but no correlative claim of these others. We already encountered this problem during the discussion of command-based ethical and legal codes: Such normative voids are hard to conceptualize. Another interpretation seems less far-fetched, namely that the others who are equals to be respected have a correlative claim to this kind of respect. If one reads the many pieces of democratic argument such as Athenagoras’ speech, this seems to be an evident implication: Equals have a claim to equal rights because they deserve equal respect.
Antiphon’s thought illustrates the depth of the reflection on equality and its normative consequences during Greek antiquity. Antiphon was, however, one voice in an obviously rich and controversial debate about human equality. His views align with some theoristsFootnote 58 and clash with others, most notably (at least in certain respects) with the theories of PlatoFootnote 59 and Aristotle,Footnote 60 which in different and complex ways defended the view that there are different classes of human beings. These anti-egalitarian arguments have political consequences, including the perceived legitimacy of slavery – the next issue to be considered. They also resonated through the centuries. Aristotelian arguments for inequality were, for instance, directly applied to justify the conquest of America, as we will see.
3.4.4 Slavery and the Search for Freedom, Equality and Equal Worth
Slavery concerns questions of human equality, freedom and worth in equal measure. Consequently, it is a crucible of the pivotal normative principles that stand at the core of the human rights debate. It thus comes as no surprise that recent history has focused strongly upon the abolitionist movement, interpreting it – rightly – as a manifestation and moving aspect of human rights culture. It consequently is hard to talk about slavery and not think about its role in the history of the idea of human rights.
For very long stretches of time, slavery was a simple and self-evident social given. Slavery took very different forms – the life of a slave in a copper mine in Attica was scarcely comparable to that of a slave running a business for an Athenian citizen. There were even complaints that slaves in Athens had too much freedom of speechFootnote 61 and more rights to free expression than the citizens of other states.Footnote 62
However this may be, there is little evidence that slavery was experienced as pleasant, and many documents attest to the suffering of slaves and the value of freedom. Euripides wrote: “[O] son … just one thing I urge upon you: never consent to live and go into slavery when you can choose to die as befits a free man.”Footnote 63 The losses imposed by slavery included not only particular freedoms, such as freedom of speech,Footnote 64 but also self-determination more generally. Euripides’ Trojan Women, for instance, is one great, heart-wrenching indictment of the “yoke of slavery.”Footnote 65 The play is of particular interest because it concerns the fate of women. Women were not free in Athenian society, and even less free than in other ancient societies. Despite this, slavery is depicted as something even worse than the usual subjugation of women, testifying to the perceived importance of freedom for any human life.
Moreover, slavery was questioned in principled terms in antiquity. One good example is furnished by the observation of a loyal slave in Euripides’ Ion: “Only one thing brings shame to slaves, the name. In all else a slave who is valiant is not at all inferior to free men.”Footnote 66 The equality of slaves and free human beings and thus the accidental nature of slavery find forceful expression in such passages.Footnote 67 As rightly has been concluded, “it would be perverse not to recognize an outright denial of natural divisions within the human race whereby one can be born to serve and another to rule, with the corollary that slavery is wrong in itself. A slave as such is of no less worth than a free man.”Footnote 68
Such statements about the equality of slaves and nonslaves were discussed widely some decades later, including by Aristotle. From this egalitarian perspective, slavery is unjust, for it is based on force, as Aristotle reports – even though he himself did not accept this conclusion, given his nonegalitarian anthropology.Footnote 69
Here, too, we can inquire into the normative position enjoyed by human beings perceived as unjustly forced into slavery. Did they enjoy no such position? How plausible is this? Is it not less far-fetched to assume that those people unjustly enslaved by brute force had an implied moral right to be freed? As the discussion thus far has already amply illustrated, the category of a right enjoyed wide currency in the normative thinking and practice of antiquity, and it is certainly no anachronism to assume that this category was of importance in the context of slavery, too.
This debate about slavery implies a stance about the worth of freedom for human beings. There are very clear statements about what enslavement meant for the persons concerned, as the examples discussed powerfully illustrate. It did not take the dawn of modern individualism to feel the pain of bondage. It is not as if there were no strong arguments against slavery in antiquity. The problem was rather that they did not prevail. The situation was therefore no different from other epochs in the struggle against slavery: One needs not only good arguments, but also the political and cultural leverage to make them count.
3.4.5 Liberty and Tyranny
Freedom also played an important role in other contexts. One central example is freedom of speech. Isegoria or parrisia, free speech, was robustly protected in the Athenian democracy. It was regarded as one of the hallmarks of the democratic order. At various points limitations were imposed, but these were often lifted again and did not do away with the practice in any case. On all accounts, freedom of speech was a fundamental right that citizens enjoyed. The political importance of this freedom is mirrored in the wider culture of the time. Take the following exchange between Jocasta and her son by Oedipus, Polynices, after the latter’s clandestine return to Thebes from exile:
Jocasta: What is it like to be deprived of your country? Is it a great calamity?
Polynices: The greatest: the reality far surpasses the description.
Jocasta: What is its nature? What is hard for exiles?
Polynices: One thing is the most important: no free speech.
Jocasta: A slave’s lot this, not saying what you think.
Polynices: You must endure the follies of your ruler.Footnote 70
Ion voices much the same sentiment in Euripides’ eponymous drama. He does not know who his mother is but hopes that she is Athenian “so that I may have free speech as my maternal inheritance! For if a foreigner, even though nominally a citizen, comes into that pure-bred city, his tongue is enslaved and he has no freedom of speech.”Footnote 71
These passages are of interest in more than one respect. They make the supreme worth of freedom of speech vividly and directly tangible. They do so using the term parrisia, which refers to normatively protected liberty, not just to a factual ability to do something. Both passages understand freedom of speech as a right guaranteed by a particular community, in the case of Ion protected only for natives of the Athenian (mythical) polis. Ion does not know his origins. He only hopes he is Athenian. He nevertheless expresses quite clearly that in his view it would be legitimate for him to enjoy freedom of speech, whatever his origins. There is no indication that he considers it justified for the tongues of foreigners (such as he might be himself) to be enslaved. It simply is a political and legal reality that this right is not protected if one is not a citizen of the city. His claim to freedom of speech is thus based on other grounds than belonging to a certain polis – most probably on the fact that he is a human person.
Jocasta’s reaction to Polynices’ assessment is interesting, too: The right to free speech was not guaranteed for women in Athens, nor was it guaranteed in the mythical Thebes where the dialogue is set. But this does not mean that she, as a woman, does not fully understand Polynices’ point. Rather, it seems that she resents “a slave’s lot” as much as her son. This was a view not only formulated by Euripides but heard and understood, if not endorsed, by his audience in the elevated social and cultural context of Athenian tragedy.
The right to free speech is singled out as a key element of democracy that contrasts democratic social orders with tyranny. Importantly, this is because it gives a person the freedom not only to speak, but also not to speak: “Freedom consists in this: ‘Who has a good proposal and wants to set it before the city?’ He who wants enjoys fame, while he who does not holds his peace. What is fairer for a city than this?”Footnote 72 The right thus explicitly has the content of a privilege to express oneself or refrain from doing it, with others having a no-right to the one or the other course of action.
In these ancient works, we thus find important questions relevant to the history of human rights: first, questions concerning the value of freedom of speech; second, the reasons for legitimately claiming it as a right; third, the difference between rights that are actually legally and politically guaranteed and the legitimate claims that people have that their rights be thus protected; and fourth, the reasons for the limited inclusion of certain groups of people among the bearers of such rights and the justification of these reasons. All of these works illustrate that the debate concerns rights in the proper sense, not some other kind of normative or non-normative position. Above all, they manifest a deep sense of the importance and human interest of these questions.
Another significant issue when considering the role of freedom in antiquity is why tyranny was regarded as a problem in Athenian democracy. The fact that it was seen as a major problem is illustrated by the great efforts made to avoid such rule, dubious as the means adopted against the abuse of power may have been – considering, for instance, the practice of ostracism. The answer can only be: because political liberty, freedom from power unrestrained by democratic decision-making, was regarded as an important good.Footnote 73 No defense of democracy or critique of tyranny is possible without valuing political freedom, though the structure of suppression of women and slaves shows the limits of this concern for liberty and equality.
The desire for freedom is also one reason for the political importance of the equality of citizens and the rule of law. The rule of law is a tool guaranteeing the equality of citizens. At the same time, the equal political power of citizens in a democracy maintains the rule of law because it prevents the use of arbitrary power by individual tyrannical rulers.Footnote 74 The rule of law thus protects equality, equality the rule of law.Footnote 75 The equality of citizens under the rule of law has a central aim, however: to secure the citizens’ freedom. The protection against arbitrary power by the rule of law and equal political rights thus underline the importance of freedom and political autonomy.
3.4.6 Rape, Injustice and Human Self-Determination
One recurrent theme of Greek mythology is the rape of women by both men and gods. This should be of interest to us, for rape brings together the issues of patriarchy, self-determination, bodily integrity, equality and violence – all of which are intricately connected with human rights and human rights law. “A curse on that night and its fate” is what the women of Troy have to say about being “brought to the bed of a Greek.”Footnote 76 Such passages leave us in no doubt whatsoever that the horrific and degrading meaning of rape was already perceived very clearly in antiquity – in fact, it was thematized on the grand stage of the theater with chilling intensity.
What do such representations of suffering tell us about the normative framing of rape? The fate of Creusa in Euripides’ Ion is a further interesting example that is relevant when answering this question. Creusa, an Athenian princess, is raped by Apollo. She gives birth to Ion, whom she abandons in despairFootnote 77 and with whom she is reunited only after years of deep sorrow. Not only is the pain of the act of rape itself deplored,Footnote 78 but the god also is accused of violating normative principles and – crucially – inflicting a wrong upon her.Footnote 79 What does this imply for the normative position in which Creusa finds herself? Could these passages possibly be understood as implying that she had no claim that violence not be done to her and the god no corresponding obligation towards her, even though she passionately accuses him of doing her an injustice? There is nothing in the play that justifies Apollo’s behavior. It does not seem plausible that Creusa and other characters in the play can accuse the god of inflicting the gravest injustice upon her and at the same time hold that she had no claim that he not violate her. She comments on the plight of women: “O unhappy women! O the criminal deeds of the gods! What is to happen? To what tribunal can we appeal when we are being done to death by the injustice of our masters?”Footnote 80 This observation is clear enough: The reason for her despair is not that she feels she and other women have no claim to be spared the indignity of rape, but that there is no institution able to enforce this legitimate claim given the perpetrators’ overwhelming power. Is this merely a problem of the very distant past, unheard of in more recent attempts to protect the rights of human beings? If that is doubtful, then Creusa’s remarks and the real suffering for which they stand deserve to be remembered.
3.4.7 Justice and Rights
Justice was a central concept for both ethics and law in the thought of this period. Its meaning and consequences were a core concern not only for Socrates, Plato and Aristotle – the remarks of Athenagoras indicate its particular political traction in public debate.
It has been underlined – and quite plausibly so – that central theories of justice in antiquity contain an implicit statement of rights. This implicit statement can be traced not by hunting for specific words that occur in the texts, but by undertaking an in-depth, substantive analysis of these theories, challenging as such an analysis may be.Footnote 81
One common point of reference in these debates was Simonides’ formula that justice consists in giving everybody that which they are owed.Footnote 82 Socrates saw this formula as relevant to but not exhaustive of justice. He clarified that it cannot mean that one does good to one’s friends and inflicts harm upon one’s foes. Justice, in his view, means not harming anybody.Footnote 83
This principle forms the starting point of Plato’s argument in The Republic for a very particular understanding of justice.Footnote 84 The idea also is endorsed and qualified by Aristotle, among many other relevant voices: “Justice is a virtue which assigns to each man his due [τὰ αὑτῶν] in conformity with the law; injustice claims what belongs to others, in opposition to the law.”Footnote 85
Some interpretations see this formula as empty, understanding it to presuppose an additional standard for what is due to a concrete person – a lot, little, nothing? – without specifying what this standard might be. At first glance, this is true. However, all of the theories mentioned clearly understand the formula as a principle of the equality of persons, and this connection with equality, together with background assumptions about the natural interests of human beings, fills the formula with substance. Socrates’ understanding is paradigmatic in this respect: The prohibition of harm, applied equally to everyone, whether friend or foe, already constitutes a substantial, nontrivial moral principle and derives from the formula of what is owed to others – it is everyone’s due not to be harmed given that it is a fundamental interest of equal human beings not to suffer.
Importantly, the formula implies that rights are a normative correlative of just distribution. This does not mean only that justice demands the equal protection of given rights. This would leave open the question of what the normative reasons are for assuming that persons have these rights in the first place. Its additional, important point is that people have a right to a share of a just distribution of goods (their due). A just distribution is an equal distribution to which one has a right. If it is just to distribute a pie equally, Peter cutting the pie does not have free discretion to allocate the pieces as he will – the recipients have a right to an equal slice of the pie and the distributor a duty to distribute it accordingly.
This principle was reformulated by Ulpian and became one of the classic definitions of justice in the Western legal tradition through its incorporation into the Corpus Iuris Civilis and the reception of Roman law from the Middle Ages onwards. It appears in two versions, one with an explicit reference to rights (iustitia est constans et perpetua voluntas ius suum cuique tribuere; justice is the constant and unremitting will to render to everyone their own right), the other without (suum cuique tribuere; to render to everyone their due).Footnote 86 The two versions need to be interpreted as synonymous, underlining the fact that the formulation “justice assigns to each person their due” implies a right, as it can be used interchangeably with a formulation that refers explicitly to rights.Footnote 87
Another reading of this formula is possible, too. Here, the formula can be understood in an objective sense – for instance, as assigning the sanction for a crime that is just and in this sense due to the offender. What is meant, therefore, depends on the context.Footnote 88
In the Greek debate, the principle encompassed not just one subset of rights, such as property rights,Footnote 89 but in fact included any entitlements, including far-reaching political claims.Footnote 90 Socrates’ understanding of the issue once again is helpful in this respect: It refers to not inflicting any harm, not just harm to property.
Even the theory of justice that seems to break most radically with the concepts of justice common at that time, Plato’s ideas in The Republic (later significantly modified in The Laws), needs to be understood as saying something about rights.Footnote 91 His shorthand formula for his concept of justice as “to do one’s own” not only determines the duties of the members of the polis, but also indirectly defines what is due to them.Footnote 92 The members of the polis have a right to exactly those things that are necessary for doing what is “their own.”Footnote 93 Therefore, the guardians, even women, have the right to rule if they have the required intellectual ability.Footnote 94 Otherwise, they could not fulfill their function, which is to govern the polis. Conversely, the guardians have no claim to any material privileges – the latter would just prevent them from doing “their own,” namely to rule the polis based on true justice.Footnote 95 These rights are not human rights, because they are rights dependent on membership in a polis and (importantly) dependent on the fulfillment of a social function.Footnote 96 For Plato, being human in itself is no reason to have rights. This is a key reason for the hierarchical, antiegalitarian structure of his imagined ideal polis, and one of the main reasons it is so unconvincing.Footnote 97
For the purpose at hand, these examples suffice to elucidate that ancient discussions about rights were intimately related to question of justice – and not only in the political sphere, but also in the fascinating debates about the idea of justice that continue to shape important aspects of the search for the right order even today. The concept of rights was simply presupposed in all of these debates. As in the case of indigenous culture, without this concept, neither a description nor an analysis of ancient thinking and practice is possible.
3.4.8 The Worth of Human Beings
The abovementioned debate about slavery already implied an important question: What are the essential features that characterize a being as morally relevant, with a claim to respect, freedom and equal rights? Who shares these features? All human beings? Just a subclass of humans? What are the normative consequences of such properties?
The worth of human beings and their special status in the order of the world – the themes that inspired the discourse about human dignity in its many, not only modern variations – were the subject of explicit reflection. One famous (and very beautiful) example can be found in the verses in Sophocles’ Antigone in which he praises on the one hand human beings’ ability to build (to use a later term) a second nature through culture, prevailing over their many foes in the physical world. On the other hand, however, humans are described as tragic beings, always prone to harming others and themselves if they lose their way by acting contrary to the laws of justice, which are the laws of the gods. The Greek epithet ta deina, used to capture the core of human existence, refers to a being that is not only great and wonderful, but also uncanny and full of destructive forces – as Antigone’s tragedy vividly illustrates.Footnote 98 Those wanting to write a history of the idea of what today is called human dignity would be well advised not to ignore such thoughts.
Encouraged by these examples, we can start to search for other traces of the idea of human worth. For example, Socrates’ understanding of justice as (at least) implying that one should not harm anybody seems to make little sense if there is not something about other human beings that demands that much respect for their well-being. Socrates’ respect for human autonomy, displayed in his attitude towards his partners in dialogue, appears to support this interpretation. He wants to incite them to think independently and is not trying to betray, manipulate or dominate them. In particular, he trusts in his interlocutors’ moral autonomy, in their ability to truly understand what is just and to act accordingly.Footnote 99 His irony is a statement of respect for others’ power of judgment, their ability to discern the serious meaning of thoughts dressed in the light colors of irony. This attitude towards others entails an acknowledgment of their worth as thinking and self-determined subjects, an acknowledgment that unsurprisingly has resonated as both an encouragement and an inspiration through the ages.
3.4.9 The Human Polis
The Stoics and their reflections on the content and nature of Natural Law provide another important body of thought that is of interest in our search for the deeper sources of the idea of human rights.Footnote 100 The thinkers counted as part of this tradition held many differing opinions. Some voices underlined the particular value of human beings because of certain properties they enjoyed – an argument that even today remains a central, albeit controversial source of the ascription of the predicate of dignity to humans. Furthermore, some Stoics developed a distinctly cosmopolitan vision: All human beings are members of one polis and therefore live under one kind of Natural Law. Stoic Natural Law criticized slavery as a violation of human equality, although some Stoics also defended slavery from this point of view. Here, we once again can ask: If some Stoics understood slavery as a violation of a cosmopolitan Natural Law of equality, then what was the slaves’ normative position? Did they enjoy an entitlement to be freed? There is no doctrine of rights in Stoic philosophy, but it is certainly at least as plausible that claims were implied in the normative propositions of this philosophy as in the other examples discussed.
Cicero is an heir to the Stoic tradition in many ways, albeit with a strong dose of theoretical eclecticism. One important idea of his was to use dignitas, dignity, not only to refer to the relative social position of human beings, but also to designate their worth as human beings as such – although he certainly did not draw the same practical conclusions as we do today with 2,500 more years of experience and reflection.Footnote 101
3.4.10 Actions and Rights in Roman Law
Roman law developed a particularly sophisticated legal system that remains influential to this day. One seasoned topic of discussion is the existence of subjective rights in this action-based legal system. Because of this constitutive feature of Roman law, some scholars deny that it had any concept of subjective rights. The actions, the lawsuits, the actio in rem concerning objects and the actio in personam concerning mainly the law of obligations, however, do not support this conclusion. After all, a claim or subjective right, which is enforced by the lawsuit, forms the necessary basis of legal action. Moreover, the category of subjective rights played an important role in Roman law, including property rights, the rights making up the patria potestas over one’s children or rights concerning one’s wife (manus), the right to inheritance, the rights of tutors and curators and the patronage of the liberator over the slaves the liberator has freed. It seems difficult to interpret the given body of Roman law plausibly without reference to the category of subjective rights.Footnote 102 In addition, important instruments such as the actio iniuriarum made it possible for persons to sue others over violations of personal injuries, implying that respect for one’s person was indeed a right.
Furthermore, famous passages of Roman law echo parts of the older traditions of Natural Law. These include the assumption of the equality of human beings and their freedom under Natural Law.Footnote 103 When setting out the foundational assumptions of Roman law, Ulpian underlines that originally all persons were just called human beings. According to Ulpian, slavery is an artificial creation. The distinction between free persons, slaves and liberated persons was only introduced later.Footnote 104 Freedom is defined as the ability to do what one wants to unless one is prevented from doing so by force or law.Footnote 105 The legal status of a free person entails not just the factual ability to do as one pleases unless prevented by force or law. It is a normative status, iusta libertas,Footnote 106 which implies subjective rights. These include the claim that others do not circumscribe the liberty of a free person and treat him as slaveholders are allowed to treat their slaves. That means, more concretely, for instance, that a free person enjoys not only the legal ability (the power in Hohfeldian terms), but also the entitlement to acquire property for himself, not just for the slaveholder and under the restrictive conditions set out by the law on slavery, among many other concrete claims based on the legal status of a free person.Footnote 107 This legal status was not lost when a person was forced into slavery without legal grounds, implying that legal claims arising from the status of a free person continued to exist.Footnote 108
The doctrines on original equality and freedom as part of Natural Law did not act as a shield against the legal entrenchment of institutions such as slavery. On the contrary, these institutions were put into practice in often gruesome and appalling legal detail. As the reference to the original equality and freedom of human beings shows, the architects of this system were well aware of other positions. They were conscious, too, that slavery meant misery for the person concerned. Accordingly, the legal possibility to be freed by manumissio was highlighted as a benefit (beneficium),Footnote 109 whereas slavery was a calamitas, a misfortune, as the Digests note, for instance, in passing – a misfortune great enough that it should not be legally imposed on children when their mother had conceived while she was still free but had borne the child when she already was enslaved.Footnote 110 It is consequently an oversimplification to state that criticism of institutions such as slavery on the grounds of human liberty were unknown in Roman law. Other considerations, unconcerned with the misfortune imposed on many human beings, simply prevailed, as they did in the many centuries of slavery to follow. Moreover, we should not overlook the elements of human freedom and equality protected in this normative system. Not only the conceptual tools of Roman law were important for subsequent developments, but also these elements. They were used, sometimes centuries later, as argumentative resources to reclaim liberty – for instance, when the idea of human beings’ freedom under Natural Law was invoked to counter another misfortune imposed on others: the conquest of America.Footnote 111 This illustrates the methodological point made above: The history of the development of human rights is a history of expanding the scope of the content and the class of beneficiaries of certain rights, which were at first selectively guaranteed – a scope, moreover, that sometimes contracted again over the course of history. The intricacies of Roman law are relevant for this history – not because this law already formulated human rights proper, as some argue,Footnote 112 but because it illustrates the many forms that systems operating with individual rights and with content related to human rights (like freedom) can adopt. These systems form the raw material from which the idea of human rights ultimately was molded. They show what steps need to be taken to make this idea explicit and what obstacles stand in its way. Even in the system of Roman law, a reference to the universal freedom of human beings was inscribed, an idea that was irrelevant in practical terms but whose time would come. The fact that this reference to a Natural Law of freedom existed offers not only a hopeful, but also a sobering lesson, however: An explicit idea of universal freedom is no guarantee that a culture and its legal systems will not disregard its commands.
A final remark: As already discussed above, one of the most influential definitions of justice by no less a figure than Ulpian echoes the older Greek discussion linking justice and rights. This alone is sufficient evidence to show that claims or subjective rights were part of Roman law – unsurprisingly so, given that this law was one of the technically most sophisticated pieces of legal thinking ever developed.
3.4.11 Varieties of Rights
Even a brief discussion of these selected ancient sources already shows how lively, controversial and profound the debate about the equality, freedom and worth of human beings was, a debate with grand stakes for political rights, institutions such as slavery and the lives of women. This debate included thoughts about the universality of ideas such as equality, forging arguments that in principle remain current today about the existential equality of human beings and its normative consequences, arguments that in contemporary frameworks are discussed in universalist terms. They naturally included – implicitly or explicitly, and expressed using different linguistic means, as the Greek example in particular shows – the complex category of subjective rights in many variants.
These debates about competing ideas prevent us from regarding the complex world of Greek and Roman antiquity as a monolithic whole, stating, for instance, that this period had no concept of equality, freedom or rights. This is a crucial finding for the purpose of our study. Another point is worth mentioning: One cannot argue that Antiphon’s defense of the equality of all human beings and Aristotle’s critique of this idea had simple cultural causes, as very different thoughts were put forward eloquently in the same culture. These controversies within the same cultural framework were a matter of competing ideas and arguments and were not due to simple and superficial properties of their exponents’ backgrounds.
To be sure, rights in the examples discussed were not part of human rights catalogues. Some theories were quite contrary to a plausible set of human rights in many respects – prime examples include Plato’s division of humanity,Footnote 113 Aristotle’s defense of slavery and slavery’s legal regulation in Roman law. The examples nevertheless illustrate that these ancient sources contain aspects that are relevant and quite interesting for the convoluted history of the concept of subjective rights.
Acknowledging this does not mean glossing over the less attractive features of slave societies without rights for women, in the case of the Athenian democracy pursuing an exploitative, aggressive foreign policy ultimately to its own detriment. Nor does it mean that the admirable features of these cultures led to current human rights systems in a continuous line of development. Rather, these thoughts exemplify what later epochs, including our own, have underlined: There are many voices in history, including powerful ones that incite human beings to injustice, cruelty, subjugation and often self-destruction. However, there are other voices, too, which make a case for the equality, freedom and worth of all human beings, sometimes even couched in the language of rights. We should listen to these voices if we want to do justice to the greatness and tragedy of the history of the deeper sources of the human rights idea.
3.5 Rights since Antiquity
3.5.1 Rights at the Dawn of a New (European) Era
One important document from the twilight of antiquity is the document commonly called the Edict of Milan (313), following Galerius’ Edict of Toleration, issued in 311.Footnote 114 The Edict is part of Christianity’s slow rise from a proscribed faith to the state religion of the Roman Empire.Footnote 115 It grants religious freedom not only to Christians, but also to members of other religions, ordering the restitution of the property people have lost through religious persecution. It establishes a right (potestas, facultas) to the free exercise of religion in broad and clear terms, including some justificatory arguments about the need to protect this right for the sake of peace.Footnote 116 The Edict represents yet another example from late antiquity illustrating the important role played by the idea of rights at that time – rights as a naturally used normative resource for political action. With freedom of religion, the Edict concerns an issue that is fundamental for the history of human rights. It grants this right to all persons under the rule of the Emperor and does not limit it to persons with certain characteristics. The Edict also indicates the distance to be crossed from a right such as this, granted by an Emperor not fully living up to its promise, to later ideas about freedom of religion, including the natural rights tradition and finally the idea of human rights as inalienable rights of human beings that are not granted by an Emperor, but rather deny his claim to power.
It should be noted, however, that the Edict does not tell the whole story of ideas of rights at that time, such as the thoughts that the Christians had about their normative position. The Edict certainly did not grant to Christians and other believers something they had never heard of – a right to religious freedom – but rather mirrored their demands or at least their aspirations, issues that were of fundamental importance for them. While not formulated in the language of modern human rights, the Edict thus is a highly significant testimony of the prevalence of the issue of a right to freedom of religion at that time as well as to the wishes of human beings of different creeds concerning their normative status. As such, the Edict is very much part of the history of human rights.Footnote 117
This illustrates the methodological point made above about the many sources of ideas of rights. It is thus a fallacy to take certain political or legal documents as the only key to determining the state of a given idea’s historical development. The fact that the Emperor granted a right does not mean that his subjects did not entertain other, more capacious concepts of legitimate claims. The fact that women had few rights in many ancient societies does not mean that women had no ideas that transcended this state of affairs – as powerfully expressed in the most important artworks of that time, as we have seen. We need to remember this point when turning to other important instruments of the development of the law.
3.5.2 Natural Rights and Medieval Rebellion
Medieval and scholastic thought worked with a well-developed notion of subjective rights. Twelfth-century authors referred to a faculty or power (facultas, potestas), using a traditional terminology to describe a normative position that, according to the analytical account above, can count as a right, though often with remaining analytical ambiguities. The rediscovery of Roman law acted as a catalyst for the development of legal thinking, spearheaded by canon law since the Decretum Gratiani (1140). It profoundly influenced the terminology and conceptions of rights.Footnote 118
The Magna Carta (1215) belongs to this time. It grants certain rights to the nobility and freemen of England, and thus to a limited group of people. It was inspired by the English barons’ desire to defend their existing rights against encroachment by King John. One of its most famous articles – 39, later 29 – concerns the right not to have one’s rights interfered with without the Crown abiding by some medieval standards of the due process of law. There are, however, other interesting provisions, too – for example, concerning freedom of movement.
It is often argued that the Magna Carta does not belong in the history of human rights proper because of its limited personal scope and aim to reinforce the traditional rights of the nobility. On the other hand, it had an enormous impact on the development not only of English, but also of American constitutional law, as it was interpreted (not least under Coke’s influence) as an instrument to protect freedom. The personal scope expanded given the increasing number of freemen. Accordingly, the Magna Carta is a good example of the incremental steps in which rights developed, leading from securing a right within a certain area of protection for a limited group of privileged people to the slow inclusion of wider circles of persons into the personal scope of protection – often against the resistance of the privileged minority.Footnote 119
The idea of explicitly stated “natural rights” gained importance in this period. These rights concerned different issues, from Godfrey of Fontaines’ idea of a right in mounting a case against papal power in the 1280s to Ockham’s inalienable right to property.Footnote 120 Moreover, there are good arguments for holding that Thomas Aquinas included rights in his Natural Law theory. One example is his argument that persons in need can take the property necessary for their subsistence lawfully if they are in concrete danger because this property is owed to them by the owners. Under these circumstances, the property becomes the lawful property of the needy. It does not seem very plausible to deny that, according to this argument for basic human solidarity, persons in need have substantial claims to the support of others.Footnote 121
The struggles for the restoration and protection of rights were not limited to the nobility and philosophical reflection. Fundamentally important rights were demanded from below in popular revolts. The famous proverb “When Adam delved and Eve span, who was then a Gentleman?” was used (and perhaps formulated) during the Peasants’ Revolt of 1381 in a sermon of the preacher John Ball.Footnote 122 It reasserts the fundamental equality of human beings and clearly implies the claim to be treated accordingly. Another important and tragic example stems from the German Peasant Wars of 1525, one of the major popular uprisings in European history in which Luther ultimately sided with the feudal lords against the peasants whose movement in the end was crushed by force.Footnote 123 A central document of the uprising lists twelve articles with the peasants’ demands. They concerned the abolishment or easing of the burdens imposed on the peasants by their lords and asserted the right to freedom of all human beings who are created equal. Therefore, they also insisted on the abolishment of serfdom. Such demands echoed older views, including those found in such important restatements of customary medieval law as the Sachsenspiegel (1215–1235), which influenced the law of the German states for 700 years. Its author, Eike von Repgow, argued for the initial equality and freedom of human beings: “All people were free when our ancestors came here to this land. My mind cannot comprehend that one person could belong to another.” He regarded serfdom (the legal meaning of which the rules reported in the Sachsenspiegel flesh out in great detail), in contrast, as unjust violence: “The genuine truth, however, is that bondage resulted from coercion, imprisonment, and unlawful exercise of force, which has become unjust custom since ancient times, and now people take it to be right and good custom.”Footnote 124
These examples show the important role that rights and ideas of freedom and equality, explicitly derived from the existential conditions of human beings and conceptualized in religious terms, played in the struggles for social justice and liberation of ordinary people of that period – a role they continued to play in the centuries to come.Footnote 125
3.5.3 Natural Rights and the Conquest of America
Spanish late scholastic thought contributed a further famous chapter to the history of natural rights. This school of thinking serves as another example for the purpose of our historical overview, and for two reasons: first, the depth of its arguments; and second, the political issue that stands in the background and sometimes in the foreground of reflection, namely the European subjugation and exploitation of South and Central America and the human suffering and loss these caused.
The founder of the School of Salamanca, Francisco de Vitoria, developed a differentiated theory of natural rights, particularly in his comments on Aquinas.Footnote 126 These rights form part of Natural Law. According to Vitoria, this law can be understood by all human beings, including non-Christians, and thus also can be comprehended by the inhabitants of the Americas, as they, too, enjoy the natural light, the common human faculty of understanding.
Vitoria provided a definition of a subjective right in line with earlier formulations: “A right is the power or faculty that somebody enjoys by law, which means a faculty, provided for me by law, concerning anything that I need.”Footnote 127 Vitoria’s theory of property is particularly relevant for such subjective rights. It is based on the idea that every human being has a claim to the goods of this Earth. Vitoria conceptualized the concrete order of property as the product of a common agreement establishing human law. This meant, among other things, that the indigenous Americans had a title (dominium) to their land – that it was not terra nullius, not a territory that belonged to nobody and was therefore up for conquest. It is clear that he is concerned with a normative claim, as he distinguishes this normative position from the factual ability to take somebody’s goods.Footnote 128 The scope of the rights he discusses overlaps in crucial respects with current human rights positions, including the rights to life, bodily integrity, freedom and property, though traditional limitations apply – for instance, as to the freedom of women. In addition, he assumes a right to freedom of movement and to commerce between peoples based on their natural society and communication. There are also political rights, not least the right to determine the form of government.
A particular conception of the normative status of human beings forms the basis of this argument. They are subjects who are entitled to determine themselves, are free and exist for their own sake.Footnote 129 His discussion of the four reasons why the indigenous Americans could not have rights illustrates this clearly: This could be so because they are sinners, infidels, lunatics or insane.Footnote 130 None of these arguments proves valid: Sinners still can enjoy dominium because they are created in God’s image and exist for their own sake. Infidels can have rights, as can lunatics and insane persons. In any case, indigenous Americans are no lunatics but self-determining human beings.
Vitoria assessed Spain’s claims in America on this basis, dismissing influential voices that defended the Spanish conquest. Vitoria considers seven arguments that in his view are not sufficient to justify denying indigenous Americans dominium:Footnote 131 Neither the emperor nor the pope have power over the whole world sufficient to abrogate the rights of indigenous Americans. The discovery of America justifies the denial of rights of indigenous Americans as little as the discovery of Europe by indigenous Americans would have justified abrogating the rights of Europeans. Indigenous Americans had not been given sufficient reason to believe in Christianity, so proselytizing does not provide justification either. Sins do not justify the derogation of rights because it is unthinkable to be entitled to conquer all countries where there are sinners, as there are quite a few. The indigenous Americans have not elected the Spanish kings, nor was America a gift of God to Spain.
Vitoria based a possible justification for Spain’s claims on the right to movement and commerce, including to war to defend this right. Spaniards enjoyed the right to spread Christianity peacefully and protect converters. These rights could be defended by force if denied. The indigenous Americans could elect Spanish kings voluntarily. Spaniards could lend support to other indigenous Americans in war. Another argument, likewise of interest for the history of human rights, was that indigenous American societies violated Natural Law by sacrificing humans and even practicing cannibalism. This violation justified intervention to stop this practice. In Vitoria’s view, there were no slaves by nature, though he kept open the possibility that the Spanish dominion could be justified by indigenous Americans’ need to be ruled because of being close to be incapacitated – but only if this rule aimed at their benefit and they indeed did not have the ability to rule themselves, which he was not asserting as proven.Footnote 132
This leaves Vitoria in an ambivalent position towards the conquest of America. His thought contains strong critical potential, and his theory made it much more difficult to justify the atrocities perpetrated by the Spanish, not least on the ground of natural rights. He explicitly voiced strong doubts that the conquest could be justified, considering all of these reasons. On the other hand, rights and rights violations were used to justify the use of force against others. The Spanish conquest certainly had nothing to do with protecting the rights of indigenous Americans, and in political practice it was not based on restrictive arguments like Vitoria’s. Vitoria’s argumentation nevertheless represents an early example of the danger of potential misapplications of these notions, strengthening (albeit unwillingly) the ideological foundations of projects such as the conquest of America.
A now-famous voice that also forms part of the context of Spanish late scholastic thought is Bartolomé de Las Casas. His critique of the Spanish conquest of America starts from points that lie right at the heart of the idea of human rights.
The first of these points is the ascertainment of the equality of human beings as reasonable beings with the capacity for autonomous self-determination and consequently with equal worth:
All peoples of the world are made up of human beings, and there is only one definition of all human beings and of each one of them, which is that they are rational creatures; they all have their own reason and will and freedom of decision, because they are created in the image and likeness of God. All human beings have five outer and four inner senses and are driven by the same purposes; they all possess the natural or seedlike principles through which to understand, study, and discern the sciences and things that they do not know, and this goes not only for those with virtuous tendencies, but also can be found in those who are bad because of their depraved customs; all delight in the good and take pleasure in what is enjoyable and amusing, and all reject and abhor evil and are displeased by what is unpleasant and harmful to them.Footnote 133
The second is the capacity for free self-determination and the central value of freedom for human beings:
It is obvious that liberty is the highest and most precious of all worldly goods and is beloved of all creatures, both sentient and non-sentient, and most of all of rational creatures. … If human beings do not agree to an interference with their aforementioned liberty of their own free, uncoerced will, then everything is based only upon duress and violence, is unjust and perverted, and is null and void according to natural law, for this turns the state of freedom into that of servitude, which is the greatest detriment apart from death.Footnote 134
Liberty is understood as a natural right of all humans: “Freedom is an inborn right that humans possess necessarily and in themselves from the beginning. Therefore it is a matter of Natural Law.”Footnote 135 It is hard to find any qualitative distinction between this right and what is understood as a moral human right today. There is a further interesting point: Las Casas argues for liberty with reference to the idea – found in Thomas Aquinas among others – that human beings exist “per se” and thus not as a mere tool for others’ ends. To use other, more modern words, humans are ends-in-themselves.Footnote 136 There consequently are no slaves by nature.Footnote 137 Las Casas for some time accepted the widely held idea that slavery was justified in war, and even proposed using such slaves from Africa for work in South America – a position he later famously renounced as a great error.
This liberty is the root of people’s political self-determination, including their choice of government.Footnote 138 This extends to all human beings, including the indigenous Americans, a position that – in Las Casas’ later thought – denied the legitimacy of Spanish imperial rule on the grounds of Natural Law, which implies subjective rights to self-determination:
All non-believers, whichever religious sect they belong to and whatever sins they may have committed, according to natural and divine law as well as according to so-called ius gentium entirely justifiably possess the power over the things they have acquired without harming anybody. And by the same right they possess their principalities and kingdoms, their estates, dignities of office, their jurisdiction and powers to rule.Footnote 139
Las Casas interpreted the 1493 Bull Inter Caetera of Pope Alexander VI, which permitted the Spanish conquest and missionizing of America, in a correspondingly narrow manner as legitimizing (if any) only a supervisory role of the existing Spanish rule for the purpose of religious teaching by gentle means, such as good example – “peaceable, loving and indulgent, charitable and enticingly, through gentleness, humility, and good examples.”Footnote 140
The concept of subjective rights likewise played an important role in Francisco Suarez’s approach to Natural Law. Natural Law defines a scope of permitted action that gives rise to subjective rights to do or not to do those things permitted – for instance, to marry or to preserve one’s freedom, to use Suarez’s examples.Footnote 141 Freedom is of central importance: Human beings are free by nature and subject only to their creator.Footnote 142 As in Vitoria and Las Casas, there are no natural slaves. Suarez argues, however, that humans can subject themselves to slavery and – echoing a principle of his time – that legitimate slavery can be established by enslaving prisoners of war in a just war.Footnote 143
Within this framework, political authority is legitimized with reference to the preservation of freedom. It originates in the will of all who unite in a political community: “According to nature, the perfect civil community is free and not subjected to any person outside of it; it enjoys total power over itself, which would be democratic if not changed.”Footnote 144 The people have a natural right (naturalis potestas) to defend themselves against tyranny.Footnote 145
Suarez’s Natural Law theory included the whole of humanity, which he thought of as possessing a “certain unity” (aliqua unitatis), not only as a species, but also in political and moral respects, as indicated by the natural obligation of mutual love and compassion, “which extends to all, including the foreigner of whatever nation.”Footnote 146 In addition, the mutual dependency of communities demands cooperation and mutual help, which form the basis for the idea of international law.Footnote 147
3.5.4 Natural Rights and the Worldly Law of Reason
A further important exponent of the Natural Law tradition is Grotius, whose work for centuries formed the textbook not only of the legal but also of the ethical thought of influential parts of the European societies.Footnote 148 He is therefore our next example of complex thought about the rights of human beings.
Grotius is widely regarded as restating the Scholastic idea of Natural Law rooted in patristic thought and the Stoa,Footnote 149 and transforming it into the conception found in the modern Natural Law tradition.Footnote 150 According to Grotius, human beings are able to understand Natural Law because of their natural reason – they are legislators guided by insight. The principles he derives reflect the social nature of human beings. These principles, like those of his predecessors, contain a highly differentiated notion of natural rights, including a sophisticated concept of rights that in many ways is on par with later analysis.Footnote 151 These rights are not fundamentally restricted to certain groups but apply to all human beings,Footnote 152 even though Grotius’ theory was not short of elements able to buttress the imperial ideology of the European states.Footnote 153 These rights of all human beings include the right to self-preservation,Footnote 154 to the pursuit of well-beingFootnote 155 and, as a precondition for this, to life, bodily integrity and freedom.Footnote 156 These rights establish duties of others to refrain from violating them. Grotius also discussed the right to receive what is one’s due and thus the traditional relation between justice and rights.Footnote 157 Grotius outlined a theory of the extraterritorial enforcement of the rights of humans under qualified circumstances,Footnote 158 underlining the universalist dimensions of his theory.
Natural rights do not exclude the possibility of unrestricted, absolute power, however.Footnote 159 Human beings can relinquish their freedomFootnote 160 – a position important for Grotius’ idea of justified slavery, one example of those elements of his thought that were put to use to justify European imperialism.
3.5.5 Transitions of Natural Law
Samuel Pufendorf’s theory of Natural Law strongly influenced the debates in the late seventeenth and eighteenth centuries that ultimately led to the explicit formulation of human rights, imperfect as this formulation remained. Important elements of Pufendorf’s thought are his account of God’s will as the source of Natural Law’s obligatory power, his theory of international relations and his theory of sovereignty. The substantive content of Natural Law is spelled out by duties and the rights of persons. Like other thinkers in the Natural Law tradition, Pufendorf drew on a differentiated analytical notion of subjective rights. Natural Law’s main aim, which determines its content, is to preserve the peaceful sociality of all humans.Footnote 161 Some of the duties of Natural Law are directed towards all human beings, men and women.Footnote 162 These absolute duties towards others include the prohibition of injury and the accessory obligation of reparationFootnote 163 and mutual respect between human beings.Footnote 164 For Pufendorf, too, there is no natural slavery.Footnote 165 He argues not only for the prohibition of injury of others, but also for an (imperfect) obligation to benefit others.Footnote 166 Where distribution is concerned, only an equal distribution honors the equal dignity of human beings.Footnote 167 Such obligations are connected to rights claims – as illuminated by the example of human beings’ justified claims for equal respect based on the concept of human dignity: Human beings have a right to this respect.Footnote 168
3.5.6 Rights in the Best of All Possible Worlds
Yet another interesting example is G. W. F. Leibniz, whose ideas on Natural Law for the most part remained unpublished during his lifetime, and for whom Grotius served as point of departure in his own complex thought on Natural Law, including subjective rights. Like Grotius, his thoughts include a sophisticated analysis of the structure of rights. In addition, he outlines some substantive content of human rights. Leibniz distinguishes three levels of Natural Law: ius strictum, aequitas and pietas. Ius strictum – importantly for our topic – encompasses the protection of life, physical and mental integrity, liberty and property. These are clearly conceptualized as normative positions with the quality of rights.Footnote 169 These rights are not created by legal communities; rather, liberty has profound metaphysical roots. It is the inalienable right of rational souls.Footnote 170 Ius strictum is based on the equality of personsFootnote 171 and, with reference to Aristotelian categories, on corrective justice.Footnote 172 Its principle is not to harm anybody (neminem laedere).Footnote 173
The next level is aequitas, which concerns the proportional balance of normative claims. In this sphere, it is not the equality of human beings that is central, but rather their inequality, which stems from specific unequally distributed abilities and talents. On the basis of these inequalities, applying Aristotelian principles of distributive justice, the goods of society are to be distributed in a way that serves the common good.Footnote 174 This distribution is effected by law and through the action of authorities applying the maxim of this sphere, suum cuique tribuere,Footnote 175 a maxim implying rights, as discussed above. The political order is one of just inequality because of these differences between human beings. Importantly for our topic, just inequality includes the political rights of human beings. Leibniz argues that the “equality of human rights” (l’egalité du droit des hommes) would be self-evident if human beings’ capability to rule was equal. Given that this capability differs, those who are the most capable are the ones who legitimately govern.Footnote 176 Though often highly critical of monarchs and the aristocracy, he thinks that a “rule of reason” is more likely to be achieved in the hierarchical order of the monarchies of his day.
The principle of the highest sphere of Natural Law, pietas, which demands that human beings live decently,Footnote 177 is justice as the love of those who have gained wisdom.Footnote 178 This demands a principled concern for the well-being of others.Footnote 179 Leibniz thinks that the ultimate motivation of agents for action is to realize their own interests. These interests, however, include the desire to see others becoming happy.Footnote 180 The happiness of others is an intrinsic good. This stance has concrete consequences. Leibniz formulates very substantial demands of human solidarity: There is a duty not only to abstain from harming other people, but also to make their well-being possible, if no substantial disadvantages are incurred by the agent,Footnote 181 which raises the familiar question: What claims are implied?
Leibniz pursued a cosmopolitan perspective: The City of God is a moral universe formed by all rational souls under the same principles of justice that guide God’s thought, decisions and actions.Footnote 182
3.5.7 Closing the Circle: The Explicit Doctrine of Human Rights
The idea of human rights was finally formulated explicitly in the eighteenth century. For moral philosophers, thinkers and political theorists of the Enlightenment, human rights were a central, foundational and explicit element of their thought both before and after the political declaration of these rights.Footnote 183 Approaches such as Locke’s social contract theory and his defense of the natural rights to life, liberty and property already directly influenced the formulation of the Declaration of Independence in 1776. Moreover, Locke’s triad of rights is based on another important idea we have repeatedly encountered, namely that human beings exist for their own sake, a position Locke ultimately framed in religious terms. These natural rights “belong to men as men and not as members of society.”Footnote 184
Natural Law theorists such as Barbeyrac,Footnote 185 Burlamaqui,Footnote 186 Wolff and de Vattel outlined in theoretical depth and with a political thrust different accounts of the idea of the natural, inalienable rights of individuals, in some cases making them the foundations of their conceptions of the rights of states and nations.Footnote 187 Wolff develops a specific concept of innate rights (iura connata) within the framework of a perfectionist theory of Natural Law. These rights are derived from Natural Law obligations based on the nature and essence of human beings, are inalienableFootnote 188 and encompass not only freedom, equality and the means of subsistence, but also other means of attaining the perfection of their human physical and mental faculties as the core command of Natural Law.Footnote 189 Human beings have all of the rights necessary to promote their happiness.Footnote 190 These innate, inalienable and explicit rights of human beings are embedded in a theory of the state, public welfare and security, which are themselves based on Natural Law and form values that can override individual rights in the civil state (status civilis), though not beyond the purpose of the state to enable human perfection.Footnote 191 As members of a human society organized in a state, natural rights continue to exist and serve as critical yardsticks for civil law but are substantially limited and not properly enforceable by the rights-holders against the sovereign.Footnote 192 The subjects maintain the right to resist abuses of power, derived from their innate rights, however.Footnote 193 Vattel took Wolff as a reference point for his reflections on Natural Law, which in turn influenced core ideas of the American Revolution, including the Declaration of Independence and its conception of unalienable rights.Footnote 194
From a Jewish perspective, Mendelssohn, for instance, defended human rights within the conceptual framework of the natural rights tradition, including a most impressive account of freedom of religion, “the most valuable treasure of human bliss” – to be expected, perhaps, from a courageous member of suffering minority.Footnote 195
Mendelssohn’s correspondent Kant, to take this most influential last example of the practical philosophy of the epoch, formulated his doctrine of freedom as a human right. This is a complex and intricate right, because the freedom of the individual must be compatible with the freedom of all under a universal law of liberty. Kant’s conception of human rights is based on the idea of human dignity in the concrete sense of respect for human beings as ends-in-themselves, which is the source of their equality.Footnote 196
Human rights permeated art as much as they did theory. Internationally acclaimed plays of the epoch illustrate this, such as Schiller’s Don Carlos or his Wilhelm Tell, in which the rights of human beings constitute crucial and explicit elements of great tragedy.Footnote 197 Human rights are a centerpiece of Schiller’s theory of political aesthetics, too, as we have seen. For the purpose of this illustrative historical sketch, there is consequently no need to elaborate further on these thoughts – the historical record is uncontroversial.
These theories were often limited in many ways, excluding large groups of persons, as we have repeatedly underlined, and sometimes were clearly contradictory, not least because the radicalism of some normative insights had not permeated the whole theory. One good example of this is Kant’s idea that human beings are to be respected as the ultimate ends of human decision-making, as ends-in-themselves, a maxim that gained significant influence in contemporary ethics and law in the context of discussions about human dignity.Footnote 198 Kant’s powerful critique of political practices on these grounds did not prevent him from denying suffrage to women and servants or justifying the rights of men over women, however – positions obviously irreconcilable with the idea that they are ends-in-themselves as human beings.Footnote 199 Such positions are thus best and most effectively criticized by the normative principles that Kant himself made explicit. Moreover, theoreticians’ ideas did not necessarily determine their behavior – as Locke’s involvement in the slave trade demonstrates. However, the idea of human rights had now been formulated in modern terms, entered the stage of world history and at last become a revolutionary force.
3.6 The Many Roots of Human Rights
This review in outline of the concept of rights is far from exhaustive, particularly bearing in mind that not only the history of ideas, but also the history of ordinary human lives and struggles is important. There are many other periods and events that lend themselves to a fresh look from the perspective of human rights – from slave revolts in antiquity, the liberties granted under the Moghul rulers in IndiaFootnote 200 or the rights claims of religious dissentersFootnote 201 to the claim by one of the leading protagonists involved in the drafting of the Universal Declaration, P. C. Chang, that Confucianism at its core is about human rights,Footnote 202 a statement comparable to the view of a spiritual leader of current Buddhism.Footnote 203 For the purpose of our inquiry into the history of human rights, however, avoiding ahistorical naivete in the theory of human rights is sufficient. In particular, our review sought answers to the following questions: What (if anything) does the history of human rights teach us about the relationship between human rights and human moral cognition? Is history all you need to know to understand the roots of human rights in the human life form? Answering these questions proved a difficult task, as the history of human rights is a minefield of controversies – so much so that even the method of inquiry itself required clarification.
Despite these difficulties and the limitations of the review, this endeavor produced some important results, which we will recapitulate in the following.
3.6.1 The Importance of Methods of Inquiry
The above discussion has shown that any historical account of human rights needs to pay close attention to: first, the need to search for implied ideas instead of for words or terms; second, the importance of a keen awareness of the many forms of human expression beyond theoretical thought, including art and the oral history of indigenous communities and their often highly significant content; third, the need to respect the profound ethical implications of human practices beyond elite circles, not least of human struggles; and fourth, the need to abandon Eurocentric or otherwise parochial perspectives. The example of the “freedom-loving” Herero or the questions generated by attention to the experience of enslaved women indicated the interesting results such an approach is able to generate. When we follow these methodological admonitions, we see that the traces of the idea of human rights are manifold – indeed, they are so copious that no existing history of human rights has done them justice so far, despite the sterling work carried out in this field.
3.6.2 Varieties of Rights and the Significance of Distinctions
Our historical review has shown that the idea of subjective rights played a central role in cultures and contexts as diverse as pastoral, indigenous societies, Greek antiquity, Roman law and Roman imperial politics, Scholastic thought, Natural Law and the law of reason, up to the Enlightenment, when human rights were explicitly (albeit imperfectly) stated more or less in their current form and became a revolutionary force. These rights did not deal merely with minor issues but addressed decisive human concerns such as autonomy and self-determination, political participation and decision-making, bodily integrity, freedom of speech and political equality. Some discussions involved major social and political controversies of their time, such as the fight for isonomia, equal political rights (even though these were guaranteed highly selectively) in the democratic era of ancient Athens, as well as the legal advice given to arguably the most powerful monarchs of their time about the rights of indigenous Americans during the conquest of America when the lives of many human beings were at stake (and not saved), to take just a few rather dramatic examples.
Unsurprisingly, these debates were not couched in modern human rights language. However, this does not mean that they are irrelevant for the history of human rights, as this history is – as emphasized above – not about words or terms, but about a normative idea. In light of the historical record, it seems obvious that the examples discussed above were in fact dealing with normative phenomena related to (but not identical with) the idea that currently is called “human rights.” The examples are highly selective, particularly if one considers the methodological steps proposed above for the study of human rights to be reasonable. The baseline of these steps is, after all, that a history of human rights needs to be much more inclusive than traditionally assumed, not only going beyond Eurocentric perspectives, but also including other sources than canonical texts. There have been some hints that such a broader perspective would only strengthen the points made so far, as the discussions about indigenous cultures and the rich normative tools of antiquity show.
Our review of historical thought on rights included very different examples – varying in form, in their metaphysical and religious background, in their concrete conclusions as to central topics and in their anthropological assumptions, theories of society and understanding of human history. Euripides’ poetic reflection about rights (quite evidently) differs in many important ways from Leibniz’s metaphysical perfectionism. These distinctions should not be glossed over in some kind of romantic tale about the triumphant march of human rights, implying that they were already conceived in full in the very early stages of human reflection. They were not, and this almost trivial point has been repeatedly underlined.
Frequently, these reflections had no political influence – they were political hopes, aspirations, often mere desperate dreams that did little to better the conditions of human beings. They included many instances of minority positions, even singular views of outsiders, entirely marginalized in their social environment. Euripides did not simply adopt the consensual positions of his era, as Aristophanes’ derision shows. The theories of the Spanish Scholastics remain impressive despite their flaws and inconsistencies, but the reality in America was decided by the sword and the greed for gold and land. Las Casas was a total anomaly, not only in his own time, but also in subsequent centuries that happily embraced the racist ideology of conquest. Unsurprisingly, the Inquisition banned some of his works after his death. Sometimes major powers were moved to protect certain rights for certain moments in the historical trajectory, but only for a limited time, as evident in the Roman Emperor’s protection of freedom of religion in the Edict of Milan, which ultimately yielded to religious intolerance.
The rights discussed were often limited to certain groups of persons, whether because of the aristocratic stratification of society, as in the case of the Magna Carta, or because the set of legitimate bearers was thought to be limited on other grounds – excluding women, for instance. Another challenge proved to be that the concept of “human beings” or “humanity” expanded as human cultures on different continents encountered one another. These developments posed the question of inclusion (and exclusion) anew.
A further important observation is that the starting point of reflections about rights is one thing, the concrete conclusions drawn from these reflections quite another. One may agree that human beings have a right to freedom but disagree substantially about what this actually means in specific cases. Yet another question is whether any of the insights drawn determine concrete action, as opposed to other motives such as individual interests. One position in Natural Law theory, reaffirmed throughout the centuries, was that there are no natural slaves. This did not prevent some of the theorists from justifying slavery on other grounds (e.g. as legitimate captives in war) or from becoming commercially involved in the slave trade themselves, like Locke, who most probably was motivated by financial interest and not by deep philosophical principles to do so.
Moreover, events of the historical proportions of the conquest of America gave rise to profound and honest critique based on the rights of indigenous Americans on the one hand, but on the other hand led to arguments that could be abused to justify imperialist policies by the back door – for example, the rights to free movement and commerce to justify some of the violence committed by the Spanish conquistadores. Other historical examples show that the use of rights-based arguments for political purposes that seek to empty these rights of their meaning is far from a recent invention.
Today, human rights are widely regarded as connected with democracy. Many of the theories discussed, however, were developed in the context of monarchical orders. Some theories challenged these orders – albeit sometimes half-heartedly – on the basis of rights, but not necessarily so. Leibniz’s theory offers an interesting account of the role that subjective rights can play in a conservative concept of politics that legitimizes monarchy. Leibniz was an adherent of Europe’s stratified order that ultimately was to be overcome by the developments sparked off by the eighteenth-century democratic revolutions. This does not mean that his conception of rights was meaningless: Asserting the inalienable “freedom of rational souls” considerably limits the actions of others, including political powers, as illustrated by Leibniz’s measured but significant critique of slavery.
The constraints of religion are likewise important. In the examples discussed, Christianity obviously is particularly significant, although, for instance, the Herero’s cult of their ancestors raises interesting questions as to their social fabric, too. The limits of the cosmopolitanism of Natural Law theories form a recurrent theme of this review. The ambivalent effects of the Christian background of some accounts and the consequences of these effects for persons of other faiths are important issues here. While a cosmopolitan theory based on a particular religious perspective certainly is not sufficiently inclusive from the point of view of a critical human rights theory, it nevertheless is of interest for a history of human rights. This is because such theories based on a particular religious outlook assert the normative relevance of some common properties of all human beings, creating a moral community that is not limited to specific societies – a doctrine that proved to have wide-ranging consequences once religious and other biases were transcended.
Religious beliefs were important in other respects, too. Even a radical critic like Las Casas, for example, felt compelled to accommodate the papal bull legitimizing the subjugation and exploitation of America in his (nevertheless critical) doctrine. Thinking beyond the Christian systems of institutions was beyond even his reach, faithful believer that he was.
Notwithstanding these many limitations, inconsistencies, cultural and religious biases, incorporated injustices, racist distortions and apologetic abuses among other problems, we should not overly quickly dismiss these theories and ideas as irrelevant for the history of human rights simply because they come from a different time and a different cultural, social and religious context. This would not do justice to the important contributions to the idea of human rights that can be detected in this history despite all of their flaws. Human rights history is not an all-or-nothing issue – many normative phenomena below the threshold of human rights as stated in modern constitutions or international law are highly significant if one wants to understand the deeper roots of the human rights idea. There is, after all, a line that runs through these debates. This line is made up of: first, the concept of a right as a specific set of correlated normative incidents, often explicitly identified in a sophisticated analysis such as that developed over the centuries in Natural Law; and second, the particular content of such rights, securing existential concerns such as life, bodily integrity, liberty and equality as fundamental entitlements of human beings.
As to the first point: Given the amount of evidence reviewed, it is clear that the normative category of a subjective right is no recent invention. The historical record shows that this category played an important role as a building block of normative systems in very different historical and cultural settings. There is ample evidence showing that this category does in fact (contrary to some historical reconstructions) form part of early normative orders, including those of antiquity about which we have reliable information and of indigenous societies that may give us some hints about the normative elements of even earlier forms of life. The cultural narcissism of some studies claiming that the European or Western tradition has a monopoly on the idea of rights needs to be overcome once and for all.
As to the second point: Demands for respect for life, bodily integrity, liberty and equality are likewise not prerogatives of Europeans since the eighteenth century, as the Herero example or the rich normative reflection of the poets and thinkers of Greek antiquity vividly illustrate. Brushing aside the many centuries of reflection about rights related to existential concerns of human beings would not do justice to those remarkable thoughts of the past.
A failure to take this history seriously into consideration when discussing contemporary human rights would not do justice to the many victims of this history, either. Their voices are heard faintly at best in many historical accounts. We know what Columbus thought when he discovered human beings he was able to easily exploit. We do not know what his victims thought of his arrival, even though this knowledge would be crucial for understanding this fateful historical event. The least one can do, given this situation, is to pay very close attention to those testimonies we have.
3.6.3 Rights and Models of History
These broader perspectives of the slow emergence of human rights sit well with our previous findings about the development of human rights following their explicit statement in the eighteenth century as revolutionary principles of political reorganization. There is no simple, continuous, linear, progressive trajectory from the idea’s inception to universal acceptance – neither before nor after the idea of human rights flew its flag visibly on the philosophical and political barricades of the eighteenth century.
There is no teleology, no comforting “this had to happen” to be detected in this process. And certainly there is no “all’s well that ends well” fanfare appropriate today – not only because we do not know whether this history will indeed end well, but also because of what was (and continues to be) done to so many victims along the way, the unjustified, wanton, avoidable suffering that cannot be redeemed by a bright human rights future, the metaphysical kitsch of teleological theories of history aside.
These results show that the remarks made above (in Chapter 2) about the different theories of history were useful: The history of human rights is neither one of simple linear progress, nor one of disconnected events without an overarching meaning. Rather, it is a history of recurrent attempts made in various diverse cultural and social contexts to secure the most important goods of human beings with the normative tool of rights, sometimes informed by predecessors, sometimes not, sometimes with long-lasting constructive influence, sometimes entirely forgotten, sometimes resounding through history, sometimes nothing more than the desperate whisper of the victims of injustice.
These complex findings underline another point highlighted in the discussion about the models of history guiding research on human rights: It is crucial to be self-critical about one’s implied anthropological assumptions. A naive adoption of the blank-slate theory, for instance, might lead historical research to overlook the intricate normative world (including a richly textured inner world) of indigenous human beings, wrongly taking them and their cultures to be “primitive.” More interesting problems may be hidden here than is widely assumed.
3.6.4 A Key Finding: The Long Way from Moral Intuitions to Explicit Rights
Our historical review leads us to an analytical point about the genesis of the human rights idea as an explicit ethical, political and ultimately legal concept. This point is of crucial importance for our argument. As we have just underlined, human rights do not come in an all-or-nothing fashion. There are many possible intermediary stages between the (hypothetical) possibility that there is neither the normative category of “rights” nor ideas about claims to bodily integrity, liberty, equality or respect in a given cultural context on the one hand, and fully developed beliefs that human beings enjoy the now-canonical human rights of codes such as the Universal Declaration as moral or even enforceable legal rights on the other.
If one tries to reconstruct the steps necessary to develop an idea of human rights in light of these findings, the following picture emerges: The most basic first step on the long road to the formulation of an explicit, critically reflected idea of human rights appears to be a moral intuition with a specific, claim-related content which is not arbitrary and in this sense principled, although not necessarily based on explicit ethical principles. This is an important observation which will be analyzed below in Chapter 8. Second, according to this moral judgment, a person – for instance, Creusa – first perceives herself as having a claim that is of qualified concern to her life, and second perceives somebody else as being under a duty to act in certain ways demanded by this claim. Third, according to this moral evaluation, it is often the case that she can decide herself whether or not to do something that is within the material scope of the perceived claim, the other party having no right that she do the one or the other. In other cases, she simply enjoys an entitlement – for instance, that her bodily integrity is respected.
One example is Creusa’s intuition, first, that she should remain unmolested by Apollo; second, that he is under a duty to restrain himself; and third, that she has the privilege to decide herself about whether or not to have an intimate encounter with him. It is crucial that there is such a claim, not just an interest or a wish – this is the decisive step into the realm of normativity and rights.
Intuitions about such claims, duties and privileges can concern many different things, including trivial matters. For the history of human rights, only very particular contents of claims, duties or privileges are relevant. In Creusa’s case, for example, her bodily integrity and personal self-determination certainly qualify in this respect. If claims cross this threshold, they are potentially relevant for the history of human rights.
As this claim and the correlative duty are normative incidents, some normative principles must be involved that give rise to the complex normative position a right defines for its holder and addressee. Justice was of central importance for the justification of rights in more than just one epoch – Athenagoras’ speech in defense of equal political rights in Syracuse in the face of the Athenian attack is just one example.
Such justice-based claims to important personal goods by individual persons in particular circumstances do not already constitute human rights, however. Several more steps need to be taken to transform these individual moral judgments about legitimate individual claims towards specific other persons into human rights. These steps are quite demanding in more than one sense.
The first step is the generalization of the abstractly determined ethical content of specific claims. The material scope of human rights is not just about the claim of W to X against Y under the specific circumstances Z – Creusa’s claim not to be raped by Apollo in the holy cave – but to respect (in this example) the bodily integrity and autonomy of women under any circumstances. Another step (historically perhaps the most difficult one) is universalization – the inclusion of all human beings in a right’s personal scope. This step rests upon two major presuppositions: first, that the same rights-conferring reasons apply to all human beings – for instance, because they all share some rights-conferring properties; and second, that (roughly) the same goods are of particular importance for all human beings. Both presuppositions evidently require substantiation, seeing as they remain controversial even today.
As we have seen, such moral claims can remain implicit, as in Creusa’s case. The idea of human rights, having defined their content in abstract terms, generalizing and universalizing them, now renders them explicit, another step with far-reaching consequences. It presupposes various conditions that are neither individual nor culturally and historically trivial. First of all, it requires a reflective stance towards moral intuitions, taking one’s own individual moral judgments as the possible object of critical scrutiny, improvement and change. Impartial moral reasoning, adopting the point of view of an “impartial spectator,” is the aim.Footnote 204 Ethical reflection needs to abstract from the personal interests and wishes of a particular agent and determine in explicit terms what claims anybody may have under normative principles such as justice. We can call this the objectification of human rights content.
Finally, human rights, derived from the generalized, universalized and objectified abstract core content of moral intuitions made explicit, can be conceptualized and institutionalized as law. The historically most important form of this conceptualization and institutionalization is, as we have seen, the protection of human rights in the legal systems of concrete political communities, a foundational idea of modern rights-based constitutionalism. In the twentieth century, humanity even made the audacious attempt to do something that never had been tried before: to erect a system of the legal complementary protection of human rights by international law on a global scale, including mechanisms of enforcement that are meant to be (and sometimes are) effective.
We do not maintain that these steps follow a consecutive historical order, nor that they describe stages in the development of individuals, let alone of humanity as a whole. There is no parallelism of ontogeny and phylogeny. Rather, these steps are theoretical constructs, a kind of ideal-typical description of the preconditions of the genesis of the human rights idea. The historical record, however, elucidates that in reality such intermediary steps were taken in many different forms – on a road that not only was long, but also needed to be paved while it was already being traveled, without clear directions on which way to go.
3.6.5 How to Miss the Point of Human Rights: Some Lessons from the Past
The historical record teaches another lesson. It illustrates the central obstacles that may prevent the development of the idea of human rights. These obstacles arise at every level of this idea’s evolution.
As we have seen, rights are often limited to certain groups of people or as to the specific content they protect. The Magna Carta implied that only parts of the population of the Kingdom of England were entitled to certain important goods – for example, not to be arrested without legal grounds. The same goes for the Virginia Charter (1615) or the Bill of Rights (1688/1689). Widening the personal scope to include more groups of persons through a process of personal universalization requires the overcoming of religious, social, cultural and ethnic boundaries, as well as the age-old dividing line of gender. The preceding remarks have made the huge historical steps involved sufficiently clear. There are other challenges as well, likewise of no small scope. One example is the need to reformulate the concept of humanity because of encounters with other cultures, expanding it to the entire globe. That these encounters would result in an inclusive concept of humanity was far from obvious, given that they were accompanied by the rise of extremely powerful ideologies very alien to the idea of human rights, as the uncanny attraction of racism and its political manifestations exemplify.
These processes are accompanied by the struggle to further define the material scope of the rights protected – a separate and equally difficult task, full of further obstacles. There are theories of rights that are meaningful even though certain rights that reasonably seem to fall under human rights are not included – for instance, equal political rights do not form part of the set of rights defended by Leibniz. This illustrates the importance of the question of which rights exactly are to be protected as human rights. If good reasons are found to secure a particular right, the next (no less complex) question arises: What precisely is the scope of the rights guaranteed – what does habeas corpus, for instance, mean exactly? This is a question that haunts lawyers, courtsFootnote 205 and ethicists to the present day.
In this respect, the guarantees of certain rights catalogues limited to certain persons have often spearheaded the development of the material content of human rights. The right to be arrested only under some form of rule of law under the Magna Carta was not a human right. But within the framework of the Magna Carta’s limited personal scope, the content of a right was developed that later was vindicated for all human beings,Footnote 206 illustrating that “the historic value of any single pronouncement affirming the rights of man as against authority is not dependent upon the degree of its completeness.”Footnote 207 Even in the opinion of its most ardent supporters, freedom of religion for a long time excluded atheistsFootnote 208 – until they finally were included in its personal scope and enjoyed the protection of a right initially designed for religious believers.
This process is of great importance. The exclusion of certain marginalized groups can be the precondition to establishing a certain claim as a right. The peasants of England could not claim habeas corpus under the rule of law in 1215 – the noblemen could. Many believed that atheists could not claim freedom of religion while believers could, because otherwise the moral structure of society would be subverted. These personally selective rights form a first crack in the wall of the unlimited power and privilege of certain persons or social institutions. Moreover, the exclusion of often large swathes of the population gives rise to questions with subversive power: What is the reason for this exclusion? Why do they enjoy this right and not us? The impossibility of providing good, principled answers to these questions turned out to be the seed of those revolutions that built the modern world of rights. The privileges for a few spearhead the rights for all – this has been a central theme of the history of human rights to the present day.
Another key obstacle to the development of human rights is their challenge to the distribution of power in social orders. Any expansion of the content of rights reduces somebody’s power and privilege – the power to determine what is said in a community, which criticism is allowed, what the ruler can do to their subjects and ultimately even whether these rulers may lose their positions because the ruled claim the right to rule themselves. These rights reshape the social fabric, directly or indirectly challenging social and economic power. This does not require sophisticated social rights or doctrinal instruments such as direct or indirect horizontal effects of rights between private parties. If one grants freedom of speech, freedom of association and freedom of assembly, one empowers unions to start renegotiating the distribution of wealth in a society, for instance, and women to unite to challenge patriarchy. If people are entitled to education irrespective of their skin color, the outcome quickly undermines ideas of racial superiority. If women cannot be treated disadvantageously because of their gender in labor law, this subverts discriminatory structures of domination in the workplace.
A further impediment is that, as indicated above, human rights as an explicit idea presuppose something like detached reflection, transcending merely personal perspectives and interests. They demand a readiness to be bound by the conclusions drawn from reflecting upon normative questions and to act accordingly – exacting demands for creatures such as human beings. The fact that the results of this thinking took a very long time to be formulated clearly, elevated to political demands and institutionalized in the law, finally even on the global level, is another unsurprising feature of the development of human rights. Human beings live in lifeworlds full of prejudice, narrow-mindedness, ignorance, resentment, egoism and aggression. The pursuit of domination, power and material advantage is a significant historical factor. In history, social structures that maintain power and privilege define entire epochs. Developing an idea like human rights in this framework evidently is an arduous task – not least because many competing theories deny that human rights really serve justified ends well, a matter we will discuss in Chapter 4.
The history of human rights is thus not just a smooth ride to paradise. It is worth remembering the many incremental steps, the dead-end roads taken, the errors and the striking thoughts formulated on the way. Furthermore, debates on human rights are far from over: Questions concerning the personal and material scope of human rights arise to the present day, as illustrated by current theories about the legitimate bearers and content of human rights that, in the opinion of some, do not include certain groups of human beings such as infants,Footnote 209 or do not in fact encompass certain content, such as the right to democratic self-government,Footnote 210 which in the eyes of others is central to the idea of human rights.Footnote 211
3.6.6 Not from Nowhere
These findings are very useful in determining what exactly we are talking about when addressing the topic of human rights. They illustrate that the idea of human rights was not formulated explicitly in all cultures since the beginning of time but is no creation ex nihilo of ingenious eighteenth-century thinking either, let alone a ephemeral partisan concept of the second half of the twentieth century, stemming from, say, Amnesty International (admirable as they are),Footnote 212 the Carter administrationFootnote 213 or Catholic personalism.Footnote 214 Rather, the building blocks of this idea have been long in the making. Casting these ideas as a recent invention of modern, perhaps even twentieth-century normative ingenuity misses important dimensions of the history of human rights and does not do justice to the great contributions of the past of more than one cultural tradition.
The development of the idea of human rights is embedded in the wider history of thought about justice, goodness and the right political order. From a very early stage onwards, these debates concerned not only what is objectively right, as some have maintained, but also the justified claims that human beings have. The history of the search for equality, liberty, solidarity and human worth speaks against simplistic accounts – for example, that antiquity (which antiquity?) had no concept of a subjective right or of human equality and dignity. The historical record is highly fragmented, not only because of the destructive forces of history, but also because very many human beings were prevented from contributing to its records, which already should caution us against drawing one-dimensional conclusions. Moreover, even the sources we have show a differentiated picture – there were voices for equality and voices against, and even statements such as this have to be carefully nuanced for each individual case. Plato and Aristotle were no champions of democratic egalitarianism. But shelving their complex thought as irrelevant for the history of the idea of human equality would be ill-advised, too, given their contribution to the theory of justice and its relation to rights, as we have seen.
All of these debates were couched in a great variety of intellectual contexts – Plato’s theory of ideas, Aristotle’s concept of forms, the metaphysics of religiously framed Natural Law, the rational deductions more geometrico, the perfectionist Natural Law of Leibniz and the a priori principles of practical reason in Kant’s thought, for example.
The history of human rights thus is full of complications and of “continuity and discontinuity.”Footnote 215 But, as we have seen, many traces of the idea of human rights can be discovered in history, in the thought and art of many cultures, as well as in the backyards of history, where dwell those who are forgotten and downtrodden but still show, in acts of rebellion and daily uprightness, what rights, albeit denied, are truly theirs.
This winding course of human rights history is to be expected, because human history itself is a long journey towards human self-understanding, a meandering, often-tragic course with early advances and epochs of regress, slowly fathoming humans’ most important concerns and vulnerabilities, finally forming a concept of humanity itself that is not biased and fragmented by ideologies of exclusion based on sex, skin color, cultural origin and the like as the basis of ethical thought.
The roots of human rights in history thus are deep. They are not the monopoly of just one culture, one system of thought, one religion or one political agenda. The idea of human rights draws on the best traditions of human thought, on the defense of human equality, liberty, solidarity and human worth. For this idea to see the light of day, human thinking needed to shed the fetters of prejudice, resentment and concern for comfortable privilege and to breathe life into the hope for equal respect for all. Human rights do not make up the totality of justice, but they are an important element of what a just order may be.
To be sure, human rights have been and indeed currently are abused for political purposes. This seems to be the fate of any great human idea. But the idea itself is not necessarily delegitimized by its abuse by its political foes. Human rights as embodied in law are equally not just the innocent offspring of beautiful moral minds. They are the product of many political forces, including ones that were sometimes far from any serious attachment to the idea of human rights. Again, this comes as no surprise in light of the way human institutions are formed in history. But human rights are not necessarily contaminated by these origins if they are otherwise justified. If we overlook this, we fail to provide “a historically convincing account of the normative power of the human rights idea,”Footnote 216 and thus we neglect a crucial element of human rights history.
Seen in historical perspective, human rights are the late child of ethical concerns at the core of the human life form. This finding considerably raises the bar for any theory seeking to address the relation between human rights and the human mind. The task is not to say something meaningful about a political whim of a generation or an ideological artifact of the post-1945 intellectual culture of the West. If it is to succeed, this account needs to contribute to the understanding of nothing less than a central, enduring element of human beings’ deepest moral and legal aspirations, an element that often fails tragically, at irredeemable human cost.
3.7 The Charisma of Human Rights: Where from?
The interesting lessons of the history of ideas thus raise questions that differ significantly from those discussed by current historical human rights revisionism. These questions already suggested themselves during our reflection on the lessons of the more recent history of human rights and can be put like this: Why did the moral intuitions related to the core building blocks of the explicit human rights idea and the principles underlying it emerge in quite different historical and cultural contexts? Why is the human rights idea prospering today, not least at a grassroots level, despite its many political (and academic) foes? Why was it not just one idea among others, but a notion that exerted a fascination like few before it? Why did it capture the moral, political and legal imagination of human beings around the globe and from all walks of life, prompting committed political and even revolutionary action that still rightly is heralded as a proud chapter in the self-liberation of human beings? Why does this tradition continue in the attempts of very many people, who often are far removed from academic discourses, to secure justified claims of human beings against suppression and contempt? Why does it appear as one example in human history that nourishes the hope that this species may be capable of something better than folly, superfluous harm and mishap? What are the deeper reasons for this fact?
The history of the idea of human rights is not a history of cultural developments without human subjects. On the contrary, in crucial respects it is the history of inquiring, fallible human beings who developed certain ideas, enlarged their scope, ironed out inconsistencies, established new connections to other beliefs that appeared insightful, made explicit what before was only tacitly implied and through these labors of thought and passion for understanding forged the concepts that finally became reliable foundations upon which to build something new through political action. It is the history of great insights that are lost and rediscovered, transformed and finally grow into an almost self-evident part of a human way of living. These insights can seem secure for some time until doubt sets in again and the destructive forces of failing to comprehend, of ignoring or, to use Benjamin’s phrase, of “Penelope’s work of forgetting”Footnote 217 what already has been understood take their toll – forces that can make people turn their back upon what earlier generations won at very high cost, occasionally even with a bored shrug of their shoulders and a contemptuous grin.
As we have seen, this picture also appears to aptly describe the more recent developments after the explicit proclamation of human rights on the world stage in the age of revolutionary constitutionalism. Our historical review showed that the human rights idea has its true source in a particular position, in an ethically calibrated political and ultimately legal substantial stance about whether human beings enjoy fundamental rights, what these rights are and how they relate to other concerns of human beings and the social communities in which they live. This stance convinced very many people around the globe, including governmental actors. It enjoyed great influence for some periods of time, but also was eclipsed, as we have seen. This was the case not only for obvious political reasons, such as the rise of new forms of authoritarianism after the end of colonialism, but also because of other factors as well, as exemplified by recent theoretical human rights skepticism.
What is the source of the attraction, the “charisma” of human rights, to adopt a term used by Max Weber in the context of his (skeptical) discussion of the rise of human rights?Footnote 218 What led human beings to politically declare rights to liberty, equality, solidarity and respect for equal human worth the basic conditions for any legitimate human political order? Why did they turn these rights into law, finally embarking on the ambitious project of extending the realm legally secured by these rights to all human beings, protecting them preferably by the means of national legal orders, but with international law and international institutions as residual safeguards?
In the end, human rights are nothing less than a powerful yes to human existence, a yes to the worth of every person being more important than other concerns, a yes to the respect for human beings as the minimum condition for a decent human life. Why did the idea of human rights convince sufficient numbers of people? It appeals to the best in human beings, to their sense of justice, to their concern for the well-being of others, to their respect for their moral status and the shared humanity of all. Usually such appeals die away unheard. Why was it, then, successful to a remarkable degree, despite all of its evident shortcomings? Why did the seasoned projects of domination, of secured privilege for some and contempt for others, fail to win the day (at least for now)? Given the course of human history, there is ample reason to be astonished about this course of affairs, as this history allows no illusions about the necessarily victorious force of justice and goodness and its relative strength in comparison to other baser pastimes of humanity. The fact that something as noble as the idea of human rights could be formed, survive and even prosper might thus be cause for considerable bewilderment.
One possible reason for the success of human rights is the “peculiarly compulsionless compulsion of the better argument,” to borrow a famous phrase.Footnote 219 From this perspective, the partial victories of the human rights idea and its underlying principles first in the realm of thought and then as political projects and legal institutions are, despite all epistemic differences, due to some of the same factors that led to the acceptance of the theory of gravity or the Darwinian theory of evolution and their successors in scientific theory building. Of course, arguments in physics or the theory of evolution convince on different grounds than arguments in ethics or legal thought. However, there is a common denominator in one respect. In all of these cases, the reason for the “charisma” of these ideas is that they are well justified and because of this have the power to convince, sometimes slowly, sometimes by leaps and bounds.
To be sure, good reasons hardly have been a strong force in history. But we should not underestimate their subversive power either. After all, the attraction of some arguments has slowly altered our views about the structure of the universe and matter, or about our origins in natural history. These were hardly small intellectual labors. Consequently, there is nothing strange in assuming that the same can happen in the process of chiseling out the politically effective and legally enforceable ideas from the bedrock material of some basic moral intuitions of what justice and moral decency command.
The precondition for this perspective is the assumption not only of good justificatory reasons for the legitimacy of human rights, but also of the existence of a capacity of moral understanding that in principle is shared by all human beings. It is exercising this capacity that leads to insights about rights when human beings reflect impartially on their existential situation within a community of others like themselves and on what the human condition might normatively demand.
To explore such perspectives and to assert, first, that there are good arguments for human rights; second, that all human beings enjoy the ability to understand their point; and third, that the conviction of the justifiedness of human rights has been and continues to be a relevant, sometimes even decisive historical and political factor determining human political action leads in no way to a surprising or strange conclusion. It is rather the fundamental assumption underpinning many lines of thought in human history, not only of obvious cases such as Natural Law theory and the theory of moral understanding of the Enlightenment. It is the hidden working hypothesis of contemporary human rights culture, of literally millions of people, despite the importance of various relativisms for academic and some political debate. The foundational assumption of the human rights movement after all is that human rights make sense for everyone. The whole project starts from the idea that all human beings are endowed with “reason and conscience” and thus are capable of understanding that there are human rights for themselves and others, irrespective of culture, upbringing, gender, skin color and the like. The human rights project represents optimism about the possibility of common human insight. Despite its many obstacles – not least powerful ideologies, incited hatred and the cultivation of moral parochialism in some intellectual quarters – this project considers it possible that humans can come to understand that such rights are justified and that they are worth the effort, passion and sacrifice required to make them living things.
Thus, the true answer to the challenge of historical human rights skepticism is not to prove the universal historical presence of human rights in human history. This proof is neither possible nor necessary. The true answer to the historical and, as an intended consequence, normative relativizing of human rights is to reassert the strength of the reasons, first, for the validity of human rights and, second, for assuming the reality of a fundamental and universal faculty of human beings for moral cognition that provides everyone with epistemic access to the idea of human rights. To avoid any misunderstanding: The existence of a capacity of practical cognition is not the criterion for the truth of the propositions perceived as true. The fact that empirically human beings judge something to be true or justified is no reason to assume that it is in fact true or justified. This capacity only creates the cognitive possibility of understanding what is justified on whatever grounds there are for this justification, as we will see in the following chapters.
According to this fundamental assumption of modern human rights culture, this human faculty of moral insight is not just the privilege of some philosopher-kings, of some special people, of a particular culture, class or religion. It is not the privilege of white people or of men, nor is it the privilege of just one time. As we have seen, the history of the idea and practice of human rights is the history of constantly renewed approaches to this great idea in very different forms and in very different historical, social, cultural and religious contexts, approaches that often are implicit and always are fragmentary, tentative and imperfect. Our own time is no more than another chapter in this history. We can be sure that other times will discern and perhaps wonder about the limits of our present understanding and practice of fundamental rights, as there is no reason to assume that we – unlike all who came before us – are able to grasp fully something that is so difficult to develop and even harder to fill with real life.
The history of human rights consequently puts two questions on the table. First, are human rights justifiable, and if so, how? Second, how are we to understand the thesis of universal epistemic access to the idea of human rights? In other words: What are the conditions for the epistemological plausibility of such a theory of justification? What kind of theory of practical cognition and of the kind of objects that cognition in this field is concerned with does the justification of human rights presuppose?
Historical or even historicist accounts of human rights thus offer no escape from the theory of the justification of human rights and their psychological, epistemological and ontological aspects. On the contrary, a review of the history of human rights and, in this context, of the merits of historical human rights revisionism leads to the question of the relationship between human thought and the idea of human rights. More precisely, it raises the questions of whether these good arguments for human rights do indeed exist and of whether the idea of a universal faculty of moral insight – of practical reason or a sense of justice, if you will – that is shared by all human beings and provides justified insight into these matters makes any sense for contemporary thought.Footnote 220
The precondition for answering these questions is a theory of the justification of human rights beyond the particular political or religious strategies that hoped to use the idea of human rights for their purposes. Only once the problem of justification has been clarified can we ask whether a certain structure of the human mind has any importance for the project of justification, not least to delegitimize it, as is claimed by various quite influential theories of the human moral mind to be discussed below. This question needs to be taken very seriously, as it challenges the idea of a potentially shared human understanding of human rights more radically than other forms of human rights critique, such as the various forms of relativist perspectivism discussed today.Footnote 221
These results of the history of human rights constitute a crucial benchmark for assessing the merits of any psychological or neuroscientific theory of human rights. This theory has to be able to account for the cognitive preconditions of the possibility of the historical trajectory and its immense complexity. Given the historical analysis and what it tells us about the making of the human rights idea, thus far it seems implausible that human rights intuitions are either a simple given of human cognition, despite what influential contemporary theories maintain, or that human beings are merely moral blank slates.
This brings us to a very important finding. In order to develop something like a theory of moral cognition relevant for human rights, we consequently need to take a different route. The most promising points of departure are the fundamental intuitions about claims to goods (e.g. the ability to speak one’s mind, so cherished by Polynices and Jocasta), correlated with duties and often accompanied by privileges, based on justice and moral obligations towards others that seem to be the root for what has become the explicit idea of human rights, now institutionalized as law.
These findings prove the need to reconstruct some elements of human rights history for the cognitive interests of our inquiry. The discussion has shown that a historical account such as this is not a mere digression for a theory of human rights that is willing to confront the challenges of psychology, neuroscience and the theory of mind. On the contrary, history is crucial if we are properly to determine the object of research and the key theoretical questions that such a theory needs to answer.
A fundamental lesson thus is that studying the genealogy of human rights is a necessary condition but in itself is not sufficient to understand the ascent and current reality of human rights. The argument for the cross-cultural origins of contemporary human rights discussed above is important. But even if matters were different, the case of human rights would not be settled. Even if this idea were of purely European (or Indian or African) origin, the question would still remain: How convincing is this idea of human rights after all? Are there reasons relevant for all human beings or are there not? Are all human beings able to understand these reasons, as all human beings are able (in principle) to grasp the arguments for the theory of gravity, even though not many of them are born in Woolsthorpe-by-Colsterworth in Lincolnshire, like Newton? In order to understand human rights and their role in history, it seems that we have to turn to the grounds of their justification and the sources of moral cognition in the still largely unfathomed human mind.
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