College Quarterly
Spring 2007 - Volume 10 Number 2
Reviews “I’ve Got My Rights! – The History and Politics of Human Rights”

Books discussed:

Debra L. DeLaet
The Global Struggle for Human Rights
Belmont CA: Thomson Wadsworth, 2006

Lynn Hunt
Inventing Human Rights: A History
New York: W. W. Norton, 2007

Micheline R. Ishay, ed.
The Human Rights Reader: Major Political Essays, Speeches, and Documents From the Bible to the Present
New York: Routledge, 1997

Gary Teeple
The Riddle of Human Rights
Aurora, ON: Garamond, 2004

by Howard A. Doughty

Among the major contributions of the European Enlightenment to modern political practices and discourse was the notion of human rights. It is true that concerns for the dignity and even the liberty and equality of individual human beings had been available for discussion since the beginnings of recorded history. Post-Socratic philosophers such as Diogenes the Cynic spoke eloquently of the desirability of human freedom and deemed freedom of speech to be the apex of a hierarchy of human rights. St. Paul acknowledged the benefits of civil rights when claimed to have been “born free,” which is to say that he was born a Roman. According to some readings of the evolving Abrahamic religions, all souls were equal in the eyes of God.

It was not until early modernity, however, that the idea of human rights gained the caché now attributed to it. It took the speculative theorizing of seventeenth-century philosophers like Hobbes and Locke to work out the concept of essential human freedom in the savage “state of nature,” and thus to put us on the long and tortuous intellectual trek toward the United Nations’ Universal Declaration of Human Rights in 1948.

It required the American Revolution and the creation of the US Constitution, however, to ground human rights in an explicitly liberal tradition and to codify fundamental liberties in law. Unlike declarations of rights and liberties such as the earlier English Bill of Rights (1689) and the later Canadian Bill of Rights (1960), the US example placed human rights above the “unwritten” constitution of parliamentary democracies, which relied on “custom and usage” and treated such legislation as equal in status to other statutes. This failure to entrench human rights and to enshrine them in a Constitution has made them susceptible to legal challenge, thus rendering their practical application problematic. (This apparent fault was largely rectified, in Canada at least, by the passage of the Charter of Rights and Freedoms in 1982.)

The United States set immediately upon a more directly progressive course. Its early postcolonial leaders, we must never forget, held “these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” We must also recall that, immediately after the United States had won its independence from the United Kingdom, cobbled together a constitution and joined together as what S. M. Lipset famously called the “first new nation,” it went on to pass ten amendments to that Constitution which are now commonly called the American Bill of Rights. Collectively, they spelled out certain limits on the authority of the federal government to impinge upon the individual rights of citizens and the rights of the several states.

In reality, of course, the achievement of the goals set forth in the founding documents of the United States has been long in coming and remains limited. Universal male suffrage was not adopted until 1836; slavery was not abolished until 1863; and, the rights of women have still not been accepted in the form of the long-delayed Equal Rights Amendment. The bad news is that, according to political scientist Jim Dator, :the United States is not a democracy, never has been a democracy, was not created to be a democracy, and will not be a democracy without substantial changes in the structure of government and the understanding and will of the American people.” The good news is that “no other nation is democratic, though some tend toward democracy” (he cites Holland and the Scandinavian countries as pertinent examples).

Human rights and democracy are compatible, of course, and may be mutually dependent; however, no country has perfectly realized either. In fact, no country has come close. To speak of democracy in the United States, Canada, the United Kingdom, the Western European nations or any other country is to engage in a self-indulgent and pretentious moral conceit. Nonetheless, the USA does deserve recognition for having advanced the cause of human rights in a singular, albeit largely symbolic and mainly eighteenth-century fashion. By this is meant that American citizens were promised protection from intrusion into their economic affairs, and were afforded other shields against such mischief as “unreasonable searches and seizures” and “cruel and unusual punishments” by government, and that capital was “liberated” from control by the state. It was, in short, a bourgeois concept of human rights that was implemented. Radicals such as Tom Paine believed that democracy was more, and it was also something else. Radicals such as Tom Paine were to be disappointed.

The principal points to be made about human rights as conceptualized by America’s founders are that they were deemed natural, equal and universal. Again, although it is true that the rights were attributed to a “creator,” the nature of that entity was left ambiguous – a balance between the largely Deist beliefs of many of the founders and the more traditional Christian convictions of other established interests. So, when asked how it was that “God” had not been given a more prominent place in the construction of American political values and institutions, James Madison (author of the Bill of Rights) and close associate of Thomas Jefferson (drafter of the Declaration of Independence) merely quipped: “We forgot.” Natural rights, of course, do not negate an omnipotent supernatural power, but they neither are they dependent on one.

Equal rights, though less visible in practice than in principle, are also matters of secular judgment and policy. As for universal rights, it is plain that human rights theorists and Americans in particular regard liberties to be applicable worldwide, and to be defended and extended globally until all human beings enjoy the freedoms that are their common due. This is not theology, but it is comprehensive, inclusive and ultimately teleological. It is, some say, “civil religion.”

So far, so good. Although there are enduring debates about specific rights such as freedom of speech (What about obscenity and “hate speech”?) or the right to a fair and speedy trial (What about the US Patriot Act, the Canadian War Measures Act or the British Anti-Terrorism, Crime and Security Act? all of which have been criticized by organizations such as Amnesty International and Human Rights Watch), the traditions of Western liberal democracies maintain a common consensus that human rights are legitimate categories of political value and ought to be supported under all normal circumstances. Like the Rule of Law, political activists from right-wing libertarians to left-wing Marxists have agreed that human rights, broadly defined, are an “unqualified human good.” Though nation-states vary in details and procedures, there is sufficient agreement on fundamental tenets to permit general accord about what counts as a human right and what steps must be taken to ensure the approximation of a just society based on the acceptance of some basic commitment to their implementation.

The human rights of the American Revolution are, of necessity, liberal rights as anticipated by the likes of John Locke and Adam Smith, which is to say that they are predominantly rights that emerged out of pre-industrial society and that had mainly to do with the desire to escape the dominance of the authoritarian post-feudal state. The overriding goal was to win an extensive array of rights over personal property, especially for commercial interests and individual entrepreneurs.

This limited agenda was adequate to the interests of the ruling elites of the day. Like all things, however, the society of the independent artisan, the yeoman farmer and the local merchant was fated to pass. Accordingly, when social and economic changes made it plain that there was a substantive role for the state in providing such necessities as education, health care, public safety and an economic infrastructure, it became necessary to redefine the concept of rights. This transformation may have been somewhat more easily accommodated in European social democracies than in Anglo-American liberal democracies, but it has been more or less accommodated in both. Moreover, despite late twentieth-century wave of neoliberalism that conducted an assault on the public sector and promoted the triumphalism of the corporate-dominated private sector, the frenzy for privatization and the consequent undermining of public services may at last be drawing to a close. The object lessons crumbling cities, inadequate health care, wretched poverty and failed disaster relief are becoming to apparent and embarrassing to be dismissed entirely.

Of special importance in the evolution of the welfare state, Keynesian economics and the imperatives of social investment was the thought of twentieth-century philosopher Isaiah Berlin. Reflecting on the nature of liberty, Berlin distinguished between “negative” liberty, by which was meant the “freedom from” excessive interference in the lives of individuals by the state and “positive” liberty, by which was meant the “freedom to” achieve happiness through the provision of state-sponsored programs such as public schools, hospitals and all manner of projects from highways to museums to municipal swimming pools.

So, while early versions of human rights were mainly about limiting the powers of government against the individual, it eventually became clear that individual citizens needed and wanted protection from those private institutions that took over control of social and commercial relations, but behaved little more equitably than the previous authorities of church and state. When, therefore, both the good of the individual and of the community seemed mutually to be served by an activist state, another dimension was added to the doctrine of human rights. In recent years, the array of public regulations and services have moved beyond elemental matters of road-building, hospitals and law enforcement and have come to include demands for industrial health and safety, protection against dangerous commodities and increasing action with regard to environmental degradation. Human rights, in short, are evolving and seemingly becoming as much concerned with community planning and protection as with purely personal liberties. The individualistic cry: “I’ve got my rights!” is being joined by the collective insistence that “We have our rights, too!”.

In outlining the emergence of human rights, there have been a number of reference books and documentary histories that have helped us travel down the circuitous road of political progress from ancient kingdoms to contemporary democracies. Although a decade old, one of the most accessible and helpful remains Micheline Ishay’s The Human Rights Reader. It delves back into classical Greek and Biblical sources to tease out the ancient roots of our most modern political concepts. It then traces the development and, eventually, the expansion of the catalogue of human rights through medieval, renaissance, Enlightenment and contemporary philosophical discourses and political struggles. Ecumenical almost to a fault, Ishay neglects neither the contributions of nineteenth-century Marxists nor twentieth-century neoliberals to the symposium. From Plato to Rousseau and from John Locke to Rosa Luxemburg, thoughtful contributions and critiques are presented for and against a number of perspectives. Particularly engaging is a summative essay by contemporary political theorist Steven Lukes which effectively skewers utilitarian, communitarian, proletarian and libertarian interpretations of human rights before offering its own compelling perspective. If readers had not yet realized it themselves, one of the unavoidable conclusions to be drawn from Lukes is that the real origin of human rights is theological nor metaphysical, but human – all too human.

Locating a noumenal, metaphysical, eternal, supernatural, essential, transcendental or even self-evident source for human rights is an exercise in justificatory rhetoric, but is anthropologically – to say nothing of philosophically – absurd. Seeking a foundation in the domain of biology or physics is almost equally unproductive. It leads almost inevitably to what logicians call a “naturalistic fallacy.” Instead, what we call rights are matters of human invention and convention. Their roots may have evolved over centuries, even millennia, but their current popularity is historical, contingent and guaranteed by no authority other than human circumstance and will.

This is the issue that Lynn Hunt addresses in her remarkably clear and concise treatise, Inventing Human Rights. In what historian Gordon Wood has called a “tour de force of compression,” Hunt offers the argument that meaningful human rights are a distinctively modern invention, and that they require three defining characteristics if they are to be taken seriously and made effective: they must, again, be natural, equal and universal. Giving it more influence over practical events than the American Revolution, Hunt credits the French Revolution as having had the greater impact on Western political thought. While the United States saw itself as already “exceptional” at its beginning and originally sought to cheer on similar revolts against tyranny only from a distance, it was France that took liberté, egalité and fraternité to war – paradoxically under the command of an Emperor. The visceral revolt and the expiatory slicing of the guillotine may not have been quite as dramatic as phrases like the “reign of terror” suggest, but there can be no gainsaying the fact that the revolution in France set the stage for European ideological debate (and subsequent rebellions) for a century and more. Or, as the late Chinese foreign minister, Chou en-Lai is reputed to have said when asked to assess the historical significance of the French Revolution mid-way through the twentieth century: “It is too early to tell.”

What logic leads Hunt to this conclusion? It has to do with her understanding of origins. For the English-speaking world, human rights are the result of the application of human reason to the problems of the human condition. The social contract that limited natural rights in the interest of collective security and that formed the rationale for government was the product of rational human thought, a calculated escape from the barbarism of life in the state of nature. Hunt, however, regards this explanation as inadequate. She argues that early modern human rights doctrines resulted from quite a different pattern of change, one that relied less on reason than upon emotion.

It was, Hunt says, the emergence of a profound sensitivity to the suffering of other people and the recognition of the essential humanity of foreigners, paupers, slaves and (even) women and Jews that distinguished the political culture of the eighteenth-century revolutionaries from those that had preceded them. This new sensitivity, she acknowledges, was no epiphany that yielded immediate, world-altering results. Robespierre, after all, was replaced by Napoleon and Napoleon gave way to the restoration of monarchical power throughout most of Europe.

In the USA, as well, the revolutionary leadership sought to install what they called a “natural aristocracy” that could be identified by wealth and to whom would be accorded legitimate rights that we to be kept from the grubby hands of the poor. Moreover, any extension of human rights toward concepts of political democracy was bitterly opposed by many of the revolution’s great heroes – notably Alexander Hamilton and the Federalists – who had little but contempt for their socio-economic inferiors. They called them “loose and disorderly” people who collectively comprised a “great beast.” So, in a disconcerting affirmation of authority, they made it a crime for a member of Congress to criticize the administration, and set aside the commitment to individual liberties in the Alien and Sedition laws of 1798.

In time, however, the protection of the Bill of Rights, universal suffrage and the extension of freedoms grew and, though it is worrisome that the same arguments that restricted freedom in the alleged interest of national security at the turn of the nineteenth century have been trotted out in recent years, it may be too early to proclaim that the United States or any European democracy stands precariously poised on the edge of some fascist abyss.

Whatever followed the first liberal revolutions, it remains important to judge the nature of their origins. If Hunt is correct is crediting a “new sensitivity,” whence did it come? Disappointingly, she gives no satisfactory answer, other than to affirm that humanity became increasing humane, respectful of the essential “selfhood” of all others of the species and indignant at the systematic cruelty that had been endemic to human civilization since the first landowner placed a fence around some real estate and designated others to do the farming while the property owner took the profit. In her view, the political achievement of rights and liberties seems to be a psychological or, at most, a cultural development. She speaks of the influence of the art of the novel in bringing to the reading public, at least, the apparently stunning realization that the poor and the illiterate had hopes, joys, tragedies and feelings of remorse much like those of their “betters.” This astonishing discovery made it plain that mutual sympathy and understanding with its attendant political acknowledgement of something like moral equality, if not exactly economic solidarity, was not merely conceivable but ethically proper.

Beginning, then, with the rights of property, growing to include elements of democratic citizenship, expanding to take into account public responsibility for basic welfare and ultimately moving beyond the domestic affairs of the nation-state to recognize that individual autonomy and well-being were the inherent rights of all humanity, Hunt tells an optimistic tale of progress that is heart-felt and inspiring, but not without its problems.

The tale ought not to be prematurely dismissed, for it does point to certain non-material yet undeniable inspirations for social movements that had notable effects. The abolition of slavery, for instance, owes much to the initiative and enthusiasm of small groups of dedicated individuals whose “sensitivities” were upset by the deprival of even the most elementary rights for vast numbers of children, women and men who were kidnapped, imprisoned, bought and sold as property well into the nineteenth century in countries that were otherwise in the forefront of political reform. Whether this change of sensibility was a cause or an effect of more profound shifts in what are formulaically called the mode, means and relations of production remains a highly contested question, but only the most unreconstructed economic determinist would deny that ideas, ideals and a modest measure of voluntarism were utterly absent or undeniably insignificant in popular, progressive historical change.

The role of politically conscious political activists is also stressed in Debra DeLaet’s The Global Struggle for Human Rights. The College Quarterly seldom publishes reviews of books that are primarily intended for student audiences. “Textbooks” – especially of the comprehensive introductory sort – are rarely the stuff of good reading (hence, perhaps, some of the problems with student learning … but that’s another story). The few books that I have read in the Wadsworth political science resource center are different. Generally well-written, focused and balanced without being bland, they are commendable contributions to teaching and learning. DeLaet’s approach is comprehensive in that it treats both theoretical issues related to the content and universality of human rights and practical matters such as the relationship between state sovereignty and universal rights, issues of restorative justice and questions of economic rights. She does not back away from some of the more disturbing dimensions of contemporary politics and raises important controversies related to gender equity, genocide and the several contradictions that characterize contemporary disputes over individual human rights and cultural rights that plainly violate them.

In doing so, she raises the disconcerting problem of how to respond to cultures that do not embrace Western versions of human rights, regarding them as no more (and no less) than imperialism in a new form. Those who criticize male-female relationships as represented by the female genital mutilation performed on about two million women and girls annually, or who regard a compulsory “female dress code” as fundamentally abusive of individual rights are now confronted by some postmodernists and assorted relativists who accuse such human rights activists as displaying insensitivity to cultures that have not uncritically adopted Western “values.” The matters at stake are not as obvious as they may seem – to either side – and DeLaet does a good job of revealing the problems for both.

DeLaet, though somewhat less than Hunt, avoids the question of the origins of human rights from an historical or a cultural materialist perspective. This is understandable in any book hoping to appeal to a pluralistic, Western audience. Much room must be left for psychological and idealistic ideologies. Perhaps paradoxically, then, it was from his devoutly Christian and conservative perspective that Canadian philosopher George Grant contextualized the idealism of the American civil rights movement of the 1960s. He argued at the precise time of the strongest Civil Rights activism in the USA that the abolition of segregation in the American South – another human rights issue that was defended as an instance of local culture – was an inevitable consequence of the need for industrial modernization. True, courageous and optimistic young people were recruited to help launch the initiative, and inspirational leaders such as Martin Luther King carried the cross, so to speak, for the process of change. Nonetheless, the maintenance of explicitly racist social relations was inconsistent with the emerging hegemony of technological society. One way or another, Jim Crow had to go. In making this case, Grant was acknowledging that forces more powerful than human beliefs either in the retention or in the abolition of repressive cultural norms are normally in play when significant changes in attitudes and action take place.

This insight is wholly consistent with the main thesis guiding Gary Teeple’s book, The Riddle of Human Rights. In his critique of human rights conceived from liberal, individualistic premises, Teeple not only discounts the somewhat fuzzy secular humanism that underlies the great proclamations of human rights, but also remains sceptical of their seemingly inevitable growth and durability. He does not deny the value of the freedoms and rights given voice in policies ranging from voluntary rules about equal opportunity for employment and advancement within corporations both public and private through to national constitutions and ultimately to global proclamations in support of personal liberty and security. For Teeple, the problem lies not in the rights and freedoms we in the West take almost for granted, but in the rights and freedoms that are undermined or ignored by authorities and would-be authorities the world over.

Once more, the root of the problem lies in the question of origins. Influenced by an unapologetic Marxist orientation, Teeple contends that the only rights that are fully established and vigorously defended in late capitalism are those that support the political economy of late capitalism. He presents a scathing indictment of the ease with which contemporary liberal democracies have rely upon and give almost unlimited assistance to brutal dictatorships whose policies coincide with neoliberal economic priorities. He is almost as scornful of non-governmental organizations that have taken it upon themselves to publicize violations of human rights – without fear or favour – across the world and to criticize Western powers that abuse aboriginal peoples, supply arms to authoritarian “third world” countries and engage in aggressive campaigns – especially against “leftist” movements and regimes.

Teeple’s concern, of course, is not that these violations should be tolerated, but that groups such as Amnesty International and Human Rights Watch decline to acknowledge that human rights abuses, much as human rights themselves, are products of specific, identifiable social formations that reflect underlying economic systems. He insists that, absent direct encounters with those systems, protests against injuries done to particular individuals or groups will do no better than to ameliorate or mask the symptoms of a deeper pathology. Just as the extension of human rights cannot be ascribed to a spontaneous outburst of empathy sometime in the late eighteenth century, he suggests, so the authentic protection of human rights cannot be contemplated without going to the root of the problem. This would require disclosing that the most infamous violations of human rights occur within the context of global alliances and economic relationships, and can be seen as much or more in the implications of devastating economic rules for poor nations through the instrumentality of the World Bank and the World Trade Organization as in the actions of sociopathic dictators and ideological extremists.

The riddle of human rights does not end, of course, in the struggle to get the theory right, though it may be a precondition for genuinely emancipatory policies and practices. Of late, another problem has arisen that goes straight to (or through) the heart of the matter of human rights. It is the apparent conflict between and among rights that have long been included in the inventory of individual liberties. Freedom of religion, to take an especially salient example, has been a fixture in the human rights doctrine from the outset. For almost as long, a measure of equality regardless of “race, colour or creed,” and eventually including religion, national origin, sex, age, physical and mental disability, plus (in some especially progressive jurisdictions) sexual orientation.

What happens, though, when two fundamental rights clash? Freedom of religion seems like a good idea. Protection against discrimination because of sex or sexual orientation seems like a good idea. Both give the impression of being wholly consistent with the doctrine of human rights. What, however, do human rights advocates say and do when a particular religion includes a belief in the subjugation of women or the essential immorality (abomination) of homosexuality?

A number of Western countries are finding themselves in the awkward position of being confronted with Muslim demands for the recognition of Sharia law in areas of civil justice such as child custody and division of property in divorce proceedings. Likewise, demands for public funding of “faith-based” schools in the interest of religious freedom are being made for educational programs that may include the teaching of “values” that are inconsistent with other provisions of various human rights codes.

What do human rights advocates say and do when language laws restrict (as in the Canadian province of Québec) the freedom of expression of citizens who choose to use English in commercial establishments in violation of laws privileging French?

These are conundrums that expose some of the flaws in human rights theory, especially when its supporters insist – as they seemingly must – on the universality of its moral and legal claims. Paradoxically, the human rights agenda is currently viewed as an instrument of “imperialist” oppression by people in non-Western societies and even within aboriginal populations within Western countries.

Localized criminal justice systems for aboriginal peoples, for example, may emphasize “healing” and “restitution” rather than incarceration even for relatively serious crimes as normally practiced under standard judicial procedure. Such exceptions may strike observers as more progressive and humane than the imposition of “white man’s law” and therefore acceptable. At the same time, as noted, female genital mutilation is consistent with some traditional cultural beliefs and efforts to curb or abolish the practice are resisted by those who regard such efforts as the imposition of an alien value system and, in some cases, a violation of religious freedom or cultural autonomy.

The answer to such dilemmas is inescapable to those who accept individualistic bias and catalogue of rights and liberties promulgated in most Western societies. The answer is equally obvious to those who view the imposition of secular, liberal individualism as corrosive of communities and, in extreme situations, a violation of the word and the will of God.

All four books under review contribute valuable ideas and are essential parts of the ongoing discussion of human rights. At the moment, however, it is regrettable that many thoughtful arguments in support of alternatives to the Western models can be found only in books that are not readily available in the West or remain buried in relatively obscure academic journals. It is also regrettable that many Western supporters of universal human rights have become reticent to express their own convictions. This is not merely a matter of demonstrating proper sensitivity to those who insist that “their women” be covered from head to toe, but also one of growing diffidence when human rights are undermined in the West by Westerners. As Naomi Klein has said of the North American Security and Prosperity Partnership, “security has become the new prosperity; surveillance has become the new democracy.”

Lively debates are, of course, being carried on – especially among feminists and postcolonial writers and activists – but these remain marginal to most people’s reading habits and need to be brought forward if discussion is to move beyond the current cacophony attending the so-called “clash of civilizations.”


Howard A. Doughty teaches in the Faculty of Applied Arts and Health Sciences at Seneca College in King City, Ontario. He can be reached at howard.doughty@senecac.on.ca

Reviews

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