The Rights Of Man Today

Louis Henkin

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781000305180
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Civil Rights in Politics
• Index: Politics & International Relations

This book analyzes the evolution of the idea of human rights, the "universalization" of human rights as reflected in the spread of "constitutionalism" to almost all states. It focuses on the conditions that must exist if the rights of men and women are to be more secure in the future.

One
The First Two Hundred Years of an Idea

“Rights” have bedeviled legal and political philosophers for centuries,^* and the addition of “human” has only caused further uncertainties. There are volumes on the meaning of rights, their source, what gives them authority. There are continuing debates about the relation of rights to duties: Are they exact, verbal correlatives? Can there be a right without a corresponding duty or a duty without a right? Which comes first, the right or the duty (and does it matter)? Can only human beings have rights, or also animals, trees, and corporations, society, the state, the government, even God?^** Can one have rights in the abstract or only against somebody; only against another person, or also against the state, the government or its officials, against oneself, or even against God? Does a person alone on an island have rights and, if so, against whom?

* Confusion has been aggravated by linguistic development, itself perhaps significant. Some languages give rights several different though not unrelated meanings—legal, moral, logical, or conventional. In English we have, variously and among others: “I have a right to that book”; “he was right to disobey the law”; “that is a right answer.”

** Justice Douglas has suggested that environmental issues might be litigated in the name of “the inanimate object about to be … despoiled,” with those who have an ‘‘intimate relation” with it recognized as its legitimate spokesmen.¹

Most of these jurisprudential inquiries are not material to the law, the politics, or the sociology of human rights in our day. For our purposes, human rights are claims asserted and recognized “as of right,” not claims upon love, or grace, or brotherhood, or charity: one does not have to earn or deserve them. They are not merely aspirations or moral assertions but, increasingly, legal claims under some applicable law.

Human rights, I stress, are rights against society, as represented by government and its officials. One may conclude that government must protect the individual from neighbors or from wolves, that it must afford legal remedies against a wrongdoer, that it must provide bread or free hospitalization; but, at bottom, the rights claimed are against the state, not against the neighbor or the wolves, the wrongdoer, the baker, or the hospital. In the eighteenth century human rights were thought of as limitations on what government might do to the individual; today they also include what society is deemed obligated to do for the individual. Here human rights are not in contradistinction to human liberties: they include the right to be free, and not only “free from,” but also “free to”; they include not only rights to do, but also rights to have and to be.

I write of claims against society; perhaps one should speak rather of claims upon society. For human rights are not perceived as “against society,” against the interest of society; in the theology of human rights, the good society is one in which individual rights flourish, and the promotion and protection of individual rights are a public good. There is an aura of conflict between individual and society only in that individual rights are asserted against government, against those who represent society officially, and it is sometimes necessary to choose between an individual’s right and some other public good. By the ideology of rights, in this choice individual rights cannot be lightly sacrificed even for the greater good of the greater number, even for the general good of all. Government cannot do some things, and must do others, even though officials are persuaded that it is in the society’s interest (and even in the individual’s own interest) to do otherwise. But this conflict between individual and society is only temporary and superficial; in the longer, deeper view, the society is better if the individual’s right is respected.

That the rights we are describing are “human” has additional intrinsic implications. They are the rights of men and women. These may assert the right to worship God, form associations, own or protect animals or trees; but neither God, the association, the animal, or the tree has human rights. The concept has also acquired connotations and overtones. These are rights that all human beings everywhere have—or should have—equally and in equal measure by virtue of their humanity; regardless of sex, race, perhaps also of age; regardless of high or low “birth,” social class, national origin, ethnic or tribal affiliation; regardless of wealth or poverty, occupation, talent, merit, religion, ideology, or other commitment. (A person may have additional legal rights by virtue of some of these extraneous qualities, or of others such as citizenship, residence, or having been elected to office. But those are not “human rights.”) If these rights are implied in one’s humanity, they are inalienable. They cannot be transferred, forfeited, or waived; they are “imprescriptible,” that is, they cannot be lost by having been usurped or by failure to exercise or assert them, no matter for how long.

It is also commonly said that human rights are “fundamental.” That may imply only that they are important, that life, dignity, and other high human values depend on them. It does not mean that they are absolute and may never be abridged for any purpose in any circumstances; it means that they are entitled to special protection enjoying at least a prima facie, presumptive inviolability, bowing only to compelling societal interests, in limited circumstances, for limited times and purposes, and by limited means.

Origins and Antecedents

The conception of human rights as an individual’s political-legal claims, implying limitations and obligations upon society and government, is a product of modern history. It reflects particular political theories and rejects others. Both the recent history and the prevailing theory reflect their antecedents.

The origins and ancestry of ideas are rarely single or simple, or readily disentangled. Many can claim patent to the ideas of human rights, with some warrant, yet all claims include some exaggeration, for the various elements of human rights have different ancestry, and attempts to correlate contemporary with ancient concepts court anachronism and other distortion. The Bible, for example, stressed not rights but duties—and these were essentially duties to God, although fellow man was the beneficiary of many of them.² “Society” and “government” were not central conceptions in the life of a people governed by God through his prophets, judges, and others chosen, ordained, or anointed. (The people’s desire for a king was decried as a rejection of God’s kingship.)³ The “higher law,” God’s law, was in principle the only law. The individual had free will and freedom of choice; but he was, a priori, not autonomous but subject to God’s law, and he was not to do “that which was right in his own eyes.”⁴ On the other hand, the major religions, philosophies, and poetic traditions can surely claim some ideas and values central to human rights: right and wrong, good and evil; law, legality, and illegality, justice and fairness; the equal protection of the laws; the significance of individual man and the essential dignity and equality of mer. In the Bible, justice is particularized in various precepts but is also prescribed generally, undefined but intuitive, and is required of God as of man.⁵ The equality and dignity of man are supported by the Genesis story of the common ancestor of mankind and by the fatherhood of God to all men.⁶ For the principle of limited, “constitutional” government—that there is a higher law binding on the governor as on the governed, and that man-made law is valid and to be respected only insofar as it is consistent with that higher law—we cite Sophocles’s Antigone, the midwives resisting Pharaoh’s order to kill all male Israelite babies, King Saul’s servants refusing to kill the priests, or the story of Daniel.⁷

Immediately, human rights derive from “natural rights” flowing from “natural law.”⁸ The Stoics, Cicero, and their jurist successors did not perceive natural law as a higher law invalidating and justifying disobedience to man-made laws that did not measure up, but as a standard for making, developing, and interpreting law: law should be made and developed so that it will correspond to nature.⁹ Later the church christianized Roman ideas, rooted natural law in divine authority, and gave it the quality of highest law. Although some of this law was revealed, most of it was left to man to uncover and develop by his God-given “right reason.”

Natural law theory emphasized duties imposed by God on every human society in an orderly cosmos. In time, society’s duties came to be seen as natural rights for the individual. It was difficult, however, to fill early natural rights with agreed content, other, perhaps, than the rights of “conscience”—to worship the true God and to refuse to commit “unjust” acts.

Currents of natural law and natural rights run deep in human rights even today.¹⁰ Politically as well as intellectually, however, human rights today trace their authentic origins to seventeenth- and eighteenth-century concepts. Although no idea is nicely confined within dates, although each recent century saw variety in ideas, one might see human rights today as a kind of twentieth-century synthesis of an eighteenth-century thesis and a nineteenth-century antithesis.

The Eighteenth-Century Thesis

The American and French revolutions, and the declarations that expressed the principles that inspired them, took “natural rights” and made them secular, rational, universal, individual, democratic, and radical. For divine foundations for the rights of man they substituted (or perhaps only added) a social-contractual base. Consider these famous lines:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed, that … it is the right of the people … to institute new government, laying its foundation on such principles, and organizing its power in such form, as to them shall seem most likely to effect their safety and happiness.¹¹

The Virginia Declaration of Rights begins:

1. 1. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
2. 2. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.
3. 3. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and that, when any government shall be found inadequate or contrary to these purposes, a majority of the community hath an undubitable inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

The rights of man, it will be noted, are not (or not necessarily) divinely ordained, not (or not necessarily) divinely conceived: they are God’s gift in that they result from his creation.^* They are natural in the sense that nature (and nature’s God) created and inspired man’s reason and judgment. They are natural in the sense that every man is born with them. They are natural also in a different sense, in that they are man’s in the “state of nature,” and he brings them with him into society. The individual was autonomous, sovereign, before government was established, and he, and other individuals taken together—“the people”—remain sovereign under any government, for their sovereignty is inalienable, and government is only by the consent of the governed. (The logical leap from autonomy of the individual to the sovereignty of the people and majority rule was not commonly noted or explained; presumably that was deemed implicit in the social compact.)

* The relation of these rights to God is ambiguous. In the American declaration, men are endowed with rights by their creator. That may mean what Paine meant when he referred to the “illuminating and divine principle of equal rights of man, (for it has its origin from the Maker of man)”; therefore, “all men are born equal, and with equal natural right.”¹² The French Declaration was made only “in the presence and under the auspices of the Supreme Being.”

The people gave up some of their autonomy to government for limited purposes, retaining the rest as rights and freedoms under government. (Paine distinguished “that class of natural rights which man retains after entering society, and those which he throws into common stock as a member of society” because he cannot execute them by himself.¹³ Rights originate with and are retained by the people; they are not granted to them.^* “Society grants him nothing. Every man is a proprietor in society, and draws on the capital as a matter of right.”¹⁵ Some rights, indeed, could not be subordinated to government even if the people wished, because these rights are inalienable.

* Compare the Ninth Amendment to the United States Constitution: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Explicit provisions of the Bill of Rights also reflect the view that rights are not bestowed by the Constitution but are antecedent to it; the Bill of Rights only commands the government to respect those antecedent rights. E.g., “Congress shall make no law… abridging the freedom of speech, or of the press.” “The right of the people to be secure … shall not be violated.” Amendments I, IV. The Supreme Court has written of “implied reservations of individual rights, without which the social compact could not exist.”¹⁴

Man retains rights against government in principle by virtue of his social contract, though that, we know, is a hypothetical construct, not a historical fact; a justification, not an explanation.¹⁶ In any particular...

Table of contents

• Cover
• Half Title
• About the Book and Author
• Title
• Copyright
• CONTENTS
• ACKNOWLEDGMENTS
• INTRODUCTION
• 1 THE FIRST TWO HUNDRED YEARS OF AN IDEA
• 2 CONSTITUTIONS AND HUMAN RIGHTS
• 3 HUMAN RIGHTS ABOVE AND BEYOND NATION
• 4 HOMAGE TO MR. PAINE
• APPENDIX: UNIVERSAL DECLARATION OF HUMAN RIGHTS
• NOTES