Rights and privileges

‘Rights language gives less and less help in the resolution of conflicts’

“We are internationalists. We believe in universal human rights.” This fragment of conversation, overheard on BBC radio, could stand for thousands of affirmations of identity and value. Such affirmations of self-evident truth were long taken for granted, so that the 70th anniversary of the United Nations Universal Declaration of Human Rights was the occasion for celebration and self-congratulation rather than careful reflection. But should we be concerned?

The World Report 2019 of the organisation Human Rights Watch shows that we should. Its executive director, Kenneth Roth, announces that “the promise of rights-respecting democratic rule . . . remains a vital, mobilising vision”, but is he whistling in the dark? His hope ill accords with news reports of civil war, genocide, religious persecution, the manipulation of democratic procedures, the murder of reporters, the oppression of dissidents and the manufacture of fake news.

Even Roth admits that “In some ways this is a dark time for human rights . . . Despite the mounting resistance, the forces of autocracy have been on the rise.” In addition, he reports, “Established autocrats and their admirers continued their disregard for basic rights.” Human Rights Watch offers us the usual catalogue of butchers, tyrants and kleptocrats across the Third World, but the spectacle of long-established societies like China, Russia and the United States also illustrates the different meanings that rulers of even advanced polities can attach to “rights”. Like “democracy” itself, almost all states profess to respect rights; but has this only devalued the term?

There is little point in just denouncing regimes of which we disapprove. To deal with Roth’s “dark time”, we need a better historical understanding of natural rights, the trajectory of the doctrine and its effectiveness in practice.

Professor Samuel Moyn has shown us how natural rights discourse has hugely proliferated since the 1970s, and now expresses most claims in the public realms of Western states. But this raises the question: was natural rights discourse always there, an eternal verity, preordained to strengthen and to develop towards a rights-based Utopia? Or was it a secular ideology like any other, sharing with all such ideologies a trajectory from inception through flourishing to decline?

How can we tell? We can see through claims to self-evident truth only by locating the recent history of the phenomenon of natural rights discourse within a much longer sweep of time. We need to look back to the supposed origin of this international movement in what is often termed the Age of Revolutions, notably 1776 and 1789, episodes that are often thought to show how institutions can easily embody natural rights with fundamentally liberating effects. In the English-speaking world, we cannot avoid a reconsideration of the political thought of Thomas Paine, author of the classic Rights of Man (1791, 1792), who is generally held to have made natural rights language merely sound like common sense (to recall the title of his famous pamphlet of 1776).

What, after all, is the metaphysical status of such natural rights? Remarkably, Paine described them as human possessions because God gives rights to each person at the moment that He creates that individual. Naturally, God would provide for each of His children an equal and adequate tool kit of rights, sufficient for coping with life’s challenges. This was a Deist vision, but the content of the tool kit was intellectually dependent on an unacknowledged inheritance from the Anglican Christianity in which Paine had grown up. As such, rights doctrine had traction within the English-speaking world before and after Paine’s lifetime. Television and the internet now reveal to us the limitations of its reception in those much larger parts of the world’s population whose religious traditions are very different, or even among people in the West who have been profoundly affected by secularisation (whatever we mean by that contentious term). Without an implicit divine guarantor, natural rights theory steadily loses its force.

As natural rights language proliferates, it tends to become synonymous with claims to good things. Rights language therefore gives less and less help in the resolution of conflicts over finite resources (as most conflicts of principle are). There is another difficulty. If God endowed each individual with a complete and sufficient tool kit of rights, the tool kits of 1776 or 1789 tended to be overtaken by social change. Paine’s Deist God seems not to have anticipated, for example, abortion, feminism, or transgender rights; inter-generational       equity, climate change or mass migration.

What are the alternatives? Within the English legal tradition, “rights” were ubiquitous for decades before Paine, but in the sense of specific, legally defined entitlements; they were largely synonymous with “privileges”, which could be added to as human needs developed. After the most euphoric years of the French Revolution, English reformers distanced themselves from the language of natural rights and fell back on the older notion of the “rights of Englishmen”. In the succeeding era of social reform in the 19th century, the second proved by far the more effective idiom. In general, today it is still the particularist political practices of nation states that deliver what justice we see in the world rather than multinational organisations talking a universalist language.

Examined more closely, Paine proves not to have coined any new language of universal human rights, despite his ardent concern for humanity and his considerable geographical range. His usage was much closer to older meanings of “rights” than was recently supposed. In France, the Déclaration des droits de l’homme et du citoyen (1789) was far from being an easy codification of self-evident truths; it was a political document, drafted by a committee, endlessly argued over within that body and left unfinished. It created as many problems as it solved.

So do all such statements of human rights. In order to sound inspiring to large audiences, they have to be couched in terms so generalised that their specific meaning has to be fought over and decided elsewhere, by corrupt politicians, expensive lawyers or violence in the streets.

Consequently, the delivery of justice and decency to the diverse populations of today’s world is a matter of far more difficulty than the champions of universalist natural rights theory still assume. If the dictators are not to exploit the new opportunities of the electronic age to gain still more ground, political theorists need to rethink what they wrongly assume can be learned from this crucial part of the historical record.

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