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.

2.3.1 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?

2.4.1 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

2.5.1 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

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.

2.7.1 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

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:

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:

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.

3.5.1 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:

The second is the capacity for free self-determination and the central value of freedom for human beings:

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:

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.

3.6.1 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.