The United Nations’ Universal Declaration of Human Rights was published seventy years ago last December. To be precise, it was on the 10th. The anniversary received less fanfare than might have been expected in the world at large or, for that matter, in the literature of philosophy. The latter fact is especially surprising, considering that the subject of rights has formed one of political philosophy’s major preoccupations for the past four decades or so. It is with that in mind that, here, I offer a few observations on the subject of declarations (“bills” or “charters”) of rights. The UN declaration is not alone, of course. History records a number of such documents and, in what follows, I shall comment, firstly, upon the relationship of their content to the circumstances which prevailed at the time of their being drawn up; secondly, upon that content’s relationship to the philosophical ideas which were prevalent during the same period; thirdly, upon the possible future of the idea of human rights, as embodied in the Declaration.
First of all, then, it is a matter of plain historical fact that each of the bills of rights in question was drawn up with a specific purpose in mind. Usually, that purpose was to strike a balance between competing centres of power and authority. For example, the English Bill of Rights – drafted in 1689 after more than half a century of political turmoil – sought to balance the demands of parliament against the power of the monarch. To take another example, the United States’ Constitution sought to formulate ground rules to be observed by independent states seeking to form a union. As for the UN Declaration itself, this was drafted in the aftermath of the Second World War, a period during which – as the document’s preamble puts it – “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind”. Its publication formed part of a project to ensure that, insofar as possible, future conflicts of interest between nations could be resolved peaceably.
This fact – that every bill of rights has emerged from within a specific context – has made it inevitable that every such bill, for any aspirations to universality it may have had, has also reflected features contingent to that context. The fact becomes all the more obvious, the further one looks back through time. By way of example, take Magna Carta, drafted in 1215 by a group of English nobles with a view to containing the power of the Crown. It’s more anachronistic articles include those stating that “If anyone has borrowed anything from the Jews, more or less, and die before that debt be paid, the debt shall pay no interest so long as his heir shall be under age” (article 10), that, a widow may “remain in her husband’s house for forty days after his death” (article 7), and that, “No man shall be apprehended or imprisoned on the appeal of a woman, for the death of any other man except her husband”. (article 54) Clearly, the world reflected by these clauses – a world in which Jews are treated with negligible respect, in which wives cannot inherit the property of their husbands, and in which the testimony of women is automatically ruled out as unreliable – is not the enlightened world of liberty and equality anticipated by the UN Declaration. (The fact must, surely, cast into doubt the familiar, rose-tinted narrative according to which Magna Carta stands at the beginning of a linear process which, having moved through increasingly enlightened stages, culminates in such documents as the UN declaration.) A parallel example of such anachronism, or so I would argue, is the US Constitution’s notorious second amendment. In frontier conditions during the late eighteenth century, when the most sophisticated rifle you could get your hands on was a flintlock, it may well have made sense to suppose that, as the amendment puts it, “a well-regulated militia” is “necessary to the security of free state” and, on that basis, to guarantee a right to “keep and bear arms”, but the authors of the amendment can hardly have foreseen a time when it would be possible to buy a semi-automatic machine gun from a shop in your local high street.
Turning – secondly – to the manner in which the major declarations of rights under discussion here reflect philosophical ideas current at the time they were drawn up, it is pretty clear that the ideals which informed the political philosophy of the Enlightenment period are manifest throughout their content. (That’s with the exception of Magna Carta, of course.) It’s well known, for example, that another foundational American document, The Declaration of Independence (1776) carries more than an echo of Locke’s arguments, in his Second Treatise of Civil Government, that we have natural rights to life, liberty, and property, and that government must rest upon the consent of the people. In a similar manner, the influence of Jean Jacques Rousseau is reflected in the French Declaration of the Rights of Man and the Citizen. (1789), notably in the opening sentence of its first article. This states that, “Men are born free and remain free and equal in rights”, thereby reflecting Rousseau’s famous assertion, in The Social Contract, that “Men are born free but are everywhere in chains”. (We are to take it, presumably, that, thanks to the revolution, “men” are no longer in chains.) The UN Declaration itself follows in these Enlightenment footsteps, opening with what it describes as “a recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family”, these being, it asserts, “the foundation of freedom, justice and peace in the world”. In all cases, the ideals informing these documents (i) treat everyone as equal (regardless of factors such as race, religion, gender, and so on.) and (ii) seek to place limits on the power of the state in order to protect the individual.
This being The Philosophers’ Magazine, a further comment on the question of rights is in order here, namely that it can be tempting to invoke a distinction between two contrasting methods for arriving at a list of rights. These are (i) through a philosophical argument appealing to some (supposed) “essence”, – some feature of “what it is to be human” and (ii) through a negotiation between actually existing individuals – precisely the sort of discussion which (ideally) went on at meetings of the UN’s Human Rights Commission when the declaration was drawn up.
Arguments of the former kind are unpersuasive – or so one might argue – because the idea of a “human essence” is difficult to substantiate. This is the view taken by Hannah Arendt, for example. In The Origins of Totalitarianism she argues that, “From the beginning the paradox involved in the doctrine of inalienable human rights was that it reckoned with an ‘abstract’ human being who seemed to exist nowhere”. Arendt, thus, dismisses the idea of “the rights of man” on the grounds that only a belief in the “rights of men” – really existing, historically situated, people – is tenable. If this is correct, it follows that the only rights which we really have are rights which arise from our position within specific contexts. Rights which can be contained in a document, referred to and enforced – rights which result from negotiations between actually existing people – would be an example.
It’s an argument with a certain appeal, but it fails, and for two reasons. The first is that the political philosophers of the seventeenth and eighteenth centuries – the Enlightenment period during which the major declarations of rights were drafted – did not appeal to some supposed human essence; that is, they did not argue that we have such-and-such rights “simply by virtue of the fact that we are human” (as the phrase has it). On the contrary, they tended to appeal to certain very general features of the way in which humans are related, and it is from that appeal that their arguments acquired a political dimension.
To take the example of Locke again, his argument for government by consent is premised upon the observation that there is no natural feature from which it may be determined that one person is entitled to exert authority over another. In other words, while there may be differences between us – differences of age, sex, race, athletic talent, and so on – there is no, similarly “natural”, qualification to rule. Far from being open to question, the claim is, so far as I can see, obviously correct. (A more recent exercise in social contract theory, the argument of John Rawls’s A Theory of Justice, is also premised upon an obvious feature of human relatedness, the fact that we are cooperative creatures, each of whom stands to gain through the efforts of the others. It’s a claim with which it would be hard to quarrel. If Rawls’s argument is to lose relevance it will be, I suggest, through the fact that his account of an “original position” from which hypothesised rational choosers select principles of justice, assumes a situation which is, apparently, spatially bounded, rather as nation states are geographically bounded. The fate of Rawls’s hypothesis and that of the nation state will go hand-in-hand. That’s my suggestion anyway. Still, it’s speculation and “another story”.)
The other reason for the failure of the argument juxtaposing two different methods for arriving at a list of rights is this: Actually existing individuals involved in a negotiation will only have a chance of coming up with what is recognisable as a list of natural or human rights if their discussion is, in the first place, informed by Enlightenment ideals of equality, fairness, liberty, and so on. Otherwise, its outcome will only reflect the values and prejudices of the individuals involved, together with the degree of influence each was able to exercise as the discussion progressed. In theory, a discussion uninformed by those ideals can come up with anything. It’s precisely the reason why Rawls places his hypothesised rational choosers behind a “veil of ignorance” as they seek to formulate principles of justice. In answer to the argument, then, the only conclusion it seems reasonable to draw is that, in order to draw up a credible charter of human rights you need both (i) philosophy to provide ideals of liberty, justice, and fairness with a rationale and (ii) discussion to come up with a list of rights, concrete and enforceable within a specific context.
It remains true, of course, that any rights we have require our situatedness in an appropriate context if they are to be recognised and enforced. That is what makes the argument that lists of rights must represent the outcome of actual discussion attractive. It is also what Hannah Arendt had in mind when she insisted upon a “right to have rights”, (although she also introduces the ideal of equality into her argument, in effect, by insisting that “we become equal as members of a group on the strength of our decision to guarantee ourselves mutual rights”). The type of “group” Arendt had in mind was the state, and in her world, as now, the dominant institution was the nation state. Up to now, that is the context within which the UN’s Universal Declaration of Human Rights has played a role, serving as part of a mechanism for regulating the relationship between such states and setting “a common standard of achievement for all peoples and all nations” to meet. No one could pretend that it has worked perfectly, but at least it has been there, requiring to be acknowledged.
What of the future? The bills and declarations of rights I have been discussing here were certainly intended by those who drafted them to guide future practice. However, they can only have served to do so provided that there remained relevant resemblances between future conditions and the circumstances within which they were drawn up. (It is obvious, for example, that Magna Carta can no longer serve as a practical guide for anyone. Rights which it would have made perfect sense to claim at the time of the wild western frontier, may start to look like nonsense once those conditions no longer apply) This suggests that the future life of the Universal Declaration must hinge upon two factors. One is a continuation of the Enlightenment faith in the advent of a world “in which human beings shall enjoy freedom of speech and belief”, as the document puts it, and in which “freedom from fear and want has been proclaimed as the highest aspiration of the common people”. The other is the continuation of an institutional structure within which those ideals can be codified as rights and actually enforced. If that structure is not going to be based upon the nation state, then something else will have to take the place of the latter.
Things don’t look good, however. For one thing, it is by no means apparent that the increasing number of problems which require treatment at a transnational level – the rise of multi-national corporations, climate change, and so on – has been matched by a development of transnational institutions capable of dealing with them adequately. For another, we have seen the rise of powerful states – China, for example – with no tradition of liberalism, and with poor human rights records. How realistic can it be to suppose that such powerful states can be required, where necessary, to observe the Declaration’s “standard of achievement”? Worst of all, we have seen the crisis of refugees in their tens of thousands seeking a haven in the West. Europe and the USA have proven woefully unwilling to meet this challenge, and the nation state system woefully inadequate to deal with it. Instead, we have seen a retreat behind fortress walls and a resort to a nostalgia from hell; a populism which makes a fetish of “the nation”, elevating that concept to the level of a mystical entity and subordinating the individual to its demands, which divides “ourselves” from “the others” out there beyond the walls, and the “real people” from the manipulative and untrustworthy “elite”. These are, pretty much, the ideas to be found in the work of writers such as Giovanni Gentile and Carl Schmitt, those who served as fascism’s “official philosophers” in the 1930s, and they run directly counter to the ideals embodied in the Universal Declaration of Human Rights. It is hard to feel optimistic in these times.