The Age of Rights

Norberto Bobbio

• Publisher: Polity
• Year: 2017
• ISBN:
  9781509526130
• Edition: 1
• Topic: Politique et relations internationales
• Subtopic: Politique

This book presents a valuable clarification and defence of human rights by Italy's leading political theorist.

Part I

1
On the Fundamental Principles of Human Rights

1. I am going to discuss three topics in this essay: first, the nature of the problem we face over an absolute principle for human rights; second, whether an absolute principle is possible; and third, supposing it were possible, whether it would be desirable.

2. The question of a fundamental principle for a right has to be posed differently according to whether it is a right which has been attained or a right which one aspires to attain. In the first case, I would go and look through the positive legal code, which affects me as the possessor of rights and obligations, in search of a valid regulation which recognizes the right in question. In the second case, I would attempt to find good reasons for maintaining its legitimacy and persuading as many people as possible to acknowledge it, particularly those people who have the power directly or indirectly to put valid legislation on to the statute book.

In a debate such as this, which is for philosophers and not jurists, there can be little doubt that when we pose the question of the fundamental principle of human rights, we are referring to the second problem. In other words, it is not a question of positive rights, but rational or critical rights (or if you like, natural rights, but in a restricted meaning of the term, which is the only one I find acceptable). We are starting from the premise that human rights are something desirable, i.e. an objective worthy of pursuit, and in spite of their desirability, they have not all been recognized everywhere and to the same degree. We wish for others to share our decision, and are therefore motivated by the conviction that finding a fundamental principle to justify it would be an appropriate method for obtaining wider recognition.

3. The illusion in an absolute fundamental principle arises from this belief that by dint of accumulating and assessing justifications and arguments one after another, we shall finally come up with the irrefutable argument, the one whose reasoning no one could deny. The absolute principle is the undisputed principle in the universe of our ideas, in the same way that absolute power is the undisputed power in the universe of actions (think of Hobbes). The mind inevitably bows to the undisputed principle, just as the will bows to undisputed power. The ultimate principle cannot be discussed further, just as ultimate power must be obeyed without argument. Those who resist the former, put themselves outside the community of reasonable people; and those who resist the latter, puts themselves outside the community of the good and the just.

For centuries this illusion was common among advocates of natural law, who believed they had safeguarded certain rights from any possible confutation by deducing them from human nature (although the rights were not always the same). However, human nature has proved to be a very shaky foundation on which to build an absolute principle for incontrovertible rights. This is not the place to repeat the countless criticisms which have been made against the doctrine of natural rights, or to reveal yet again the speciousness of arguments used to demonstrate their absolute value. Suffice it to recall that many rights have been derived from the generous and obliging nature of man, however varied their character or however obscure (fundamental rights only in the eyes of their champions). For instance, advocates of natural law argued for a long time whether the most natural of three possible forms of inheritance was for property to return to the community, to pass from father to son, or to be freely disposed of by the proprietor (and which therefore was to be preferred in a system which accepted as just everything that was founded on nature). The argument could go on: all three solutions conform perfectly to human nature, according to whether you consider man as a member of a community on whom his life ultimately depends, as a pater familias whose natural instinct is to continue the species, or as a free and autonomous individual who is the only person responsible for his own actions and property.

Kant quite reasonably restricted the incontrovertible rights (which he called ‘innate’) to one: freedom. But what is freedom?

4. Today this illusion is no longer possible. Every attempt at an absolute principle has proved to be groundless. I can raise four objections to this illusion (and thus I move on to the second argument).

The first objection arises from the consideration that ‘human rights’ is a very vague expression. Have we ever attempted to define them, and if so, to what effect? Most of the definitions are pure tautology: ‘The rights of man are those which are due to a man in as much as he is a man’. Sometimes they tell us something about the desired or proposed status of these rights, and nothing about their content: ‘The rights of man are those which belong or should belong to all men, and of which he should not be deprived’. Finally, whenever there is some reference to content, it is impossible to avoid the introduction of terms requiring value judgements: ‘Human rights are those whose recognition is a necessary condition for the improvement of humanity or the development of civilization, etc.’ This leads to another problem: such terms can be interpreted in different ways according to the ideology of the interpreter. The improvement of humanity and the development of civilization are themselves the subject of passionate and irresolvable debates. Agreement is generally achieved by the disputants making reciprocal concessions until they can arrive at some general formula which is just as vague as the previous two definitions. However, disagreements which have been papered over soon reappear, whenever one attempts to put a purely verbal statement into practice.

The only thing we know about fundamental rights is that they are necessary for the achievement of final values, and they are therefore an appeal to those final values. But final values themselves cannot be justified but only premised: that which is final is, by its very nature, without foundation. Moreover, final values are antinomical, and cannot all be accomplished universally at the same time. It is necessary for both parties to make concessions in order to achieve them, and the concessions required for this process of conciliation involve personal preferences, political choices and ideological orientations. All three of these types of definition do not therefore allow us to develop a well-defined category of human rights. One wonders how the question of fundamental principles for human rights, whether absolute or not, can be addressed when it is not possible to formulate a precise concept.

5. Secondly, human rights constitute a variable category as is adequately demonstrated by the history of the last few centuries. The list of human rights has been modified and continues to be modified in changing historical circumstances: the requirements and interests of the ruling classes, the available means for their enactment, technological developments, etc. Rights, which were declared absolute at the end of the eighteenth century, such as the sacre et inviolable right of ownership, have now been subjected to radical restrictions in contemporary declarations, while prominence is now given to rights, such as social rights, which in the seventeenth century did not even get a mention. It is not difficult to foresee that new demands will emerge which at the moment we can only catch a glimpse of, such as the right not to carry arms against one’s wishes or the right to respect the lives of animals and not just humans. Thus rights are not fundamental by their nature. That which appears to be fundamental in a given historical era or civilization, is not fundamental in other eras or civilizations.

It is difficult to see how a fundamental principle can be attributed to rights which are historically relative. But we should not be frightened of relativism. The evident plurality of religious and moral perceptions is a historical fact, and these too are subject to change. The relativism which derives from this pluralism is itself relative. It .is precisely this pluralism which constitutes the most powerful argument in favour of some of the most significant human rights, such as religious freedom and freedom of thought in general. If we were not convinced of the irreducible plurality of teleological concepts, but instead believed that religious, ethical and political declarations could be demonstrated by theorems (as advocates of natural law illuded themselves – Hobbes, for example, called natural laws ‘theorems’), then the right to religious freedom or the freedom of political thought would lose their reason for existence, or at the very least would acquire a different meaning: they would no longer be the right to follow one’s own personal religion or to express one’s own political opinion, but would become the right not to be deviated by force from the pursuit of the one true religion or the single political good. It is worth noting the profound difference between the right to religious freedom and the right to scientific freedom. Religious freedom is the right to profess any religion or no religion at all. Scientific freedom is not the right to profess any scientific truth or none at all, but is essentially the right to pursue scientific research unimpeded.

6. Apart from being ill-defined (§ 4) and variable (§ 5), the category of human rights is also heterogeneous. The same declaration can include very different kinds of demand and, what is worse, demands which are incompatible. The arguments used for some of the demands are not therefore valid for others. In such a case, we should not be talking of the principle but the principles of human rights, of different principles according to which right we are arguing for.

As has been observed on several occasions, the ‘status’ of human rights varies. There are some which are valid in every situation and concern all human beings without distinction, such as the right not be enslaved or not to be tortured. No limitations are requested for such rights either on the basis of exceptional circumstances or in relation to this or that category of humankind, which may be extremely restricted. These rights are privileged, because they cannot be impinged upon by any other rights, however fundamental, and do not involve a choice in given situations or in relation to particular categories.

It is not possible to assert a new right in favour of one group of persons without suppressing a former right enjoyed by another group of persons. The recognition of the right not to be enslaved implies the elimination of the right to own slaves; the recognition of the right not to be tortured implies the suppression of the right to torture. In these cases, the choice seems easy and self-evident, so we would be surprised if anyone asked us to justify them (we consider morally self-evident that which does not have to be justified).

In the majority of cases, however, the choice is doubtful and needs to be demonstrated, because both the right which is being asserted and the right which is being suppressed have arguments in their favour. In Italy, for example, there is a demand for the abolition of censorship on films shown in cinemas. The choice is simple: you put the artist’s freedom on one scale and on the other scale the freedom of government bodies, which are generally incompetent and mean-minded, to suffocate the artist. But the problem becomes more difficult if you oppose the film producer’s right of expression to the public’s right not to be shocked, offended or provoked. The problem is resolved by introducing limitations on both rights so that each is safeguarded to some extent. To continue our example of film censorship, our constitution provides for the limit of good taste.

It would appear, therefore, that rights with such different areas of pertinence cannot have the same foundation, and above all that rights of the second type, which may well be fundamental but are subject to restrictions cannot have an absolute foundation, because this would invalidate the restriction.

7. One must distinguish between the previously discussed situation of a clash between the fundamental right of one category of persons and the equally fundamental right of another category, and a situation which even more seriously undermines the search for an absolute principle: the situation which involves a contradiction between the rights claimed by the same group of persons. All the recent declarations of human rights include not only the traditional individual rights or ‘freedoms’, but also the so-called social rights or ‘powers’. The former require purely negative obligations from others (including public bodies), and for those others to refrain from certain forms of behaviour, while the latter can be achieved only if a certain number of positive obligations are imposed on others (including public bodies). They are antinomical in the sense that they cannot both be developed at the same time: the comprehensive implementation of one set of rights precludes the comprehensive implementation of the other set. The greater the powers of each individual, the lesser his on her freedoms. These are two legal situations so different that the arguments used to uphold the former are worthless for the latter. The two principle arguments for introducing the most fundamental freedoms are:

1. the impossibility of establishing teleological beliefs;
2. the belief that the greater the liberty an individual can enjoy, the more he or she can progress morally and promote the material progress of society.

Well, the first of these arguments is irrelevant to the demands for new powers, and the second has proven to be historically incorrect.

Two fundamental but contradictory rights cannot have a single absolute principle which makes them both irrefutable and irresistable. It is worth recalling here that the illusion of an absolute principle for some established rights has been an obstacle to the introduction of new rights which were wholly or partially incompatible. Consider, for instance, the obstacles posed to the progress of social legislation by the theory of natural law which upheld the absolute principle of property. For almost a hundred years, opposition to the introduction of social rights was carried out in the name of the absolute principle of libertarian rights. The absolute principle is not only an illusion; on occasions it is also a pretext for defending conservative positions.

8. So far, I have put forward arguments to explain the futility of searching for an absolute principle for human rights. But there is another aspect which emerges from the previous considerations, and leads me to the third question I posed at the beginning. It is the matter of ascertaining whether the successful discovery of a fundamental principle would achieve the hoped-for result of a speedier and more effective recognition and implementation of human rights. The debate concerns the second dogma of ethical rationalism and illusion of natural law which maintains not only that final values can be demonstrated by theorems, but that it is sufficient to demonstrate them (to prove them irrefutable and indisputable) in order to ensure their implementation. Apart from the dogma of the demonstrability of final values whose lack of foundation I have been attempting to prove in the previous paragraphs, ethical rationalism in its more extreme and old-fashioned formulations also claims that the rational demonstration of a value is not only a necessary condition for its implementation, but is sufficient by itself. The firs...

Table of contents

• Cover
• Table of Contents
• Title
• Copyright
• Preface to the English Edition
• Note
• Part I
• 1 On the Fundamental Principles of Human Rights
• 2 Human Rights Now and in the Future
• 3 The Age of Rights
• 4 Human Rights and Society
• 5 Human Rights Today
• Part II
• 6 The French Revolution and Human Rights
• 7 The Legacy of the Great Revolution
• 8 Kant and the French Revolution
• Part III
• 9 Against the Death Penalty
• 10 The Current Debate on the Death Penalty
• Index
• End User License Agreement