JORGE RODRIGUES SIMÃO

ADVOCACI NASCUNT, UR JUDICES SIUNT

(2) Human Rights

The 30 Articles of the Universal Declaration of Human Rights

HR

The Rights of Man and their Discontents

The standard Western account of the tradition of human rights is somewhat problematic. Early legal developments in the area of human rights are said to have emerged from the Magna Carta of 1215, a contract between the English King John and the Barons who were dissatisfied with the taxes being levied by the monarch.

But, although this agreement guaranteed rights for free man not to be 'arrested, or detained in prison, or deprived of his freehold, or outlawed, or banished, or in any way molested...unless by lawful judgment of his peers and the law of the land', this guarantee was simply a right to trial by jury granted exclusively to property-owning men. The rights contained in the Magna Carta were not human rights, but rather political settlements.

Human rights belong to all human beings and therefore cannot be restricted to a select group of privileged men. From a contemporary perspective, the Magna Carta turns out to be a rather unfortunate example of a human rights declaration. Suffice it to cite one sentence, clause 54 of the Magna Carta reads: 'No one shall be arrested or imprisoned on the appeal of a woman for the death of any person except her husband.'

The English Bill of Rights of 1689 is similarly sometimes considered a stepping stone to today's texts. Parliament declared that 'no excessive fine is imposed; nor cruel and unusual punishment [be] inflicted'. It also stated, however, 'That the subjects which are Protestants, may have arms for their defence suitable to their conditions, and as allowed by law.' Like the Magna Carta, the Bill of Rights was in fact a political settlement; this time between a Parliament and the King (who had abused the rights of Protestants), in order to vindicate 'ancient rights and liberties'.

At the same time, the work of a number of philosophers had a very concrete influence on the articulation of demands in the form of 'natural rights' or the 'rights of man'. John Locke's Second Treatise of Government, published in 1690, considered men in a 'state of nature' where they enjoyed 'a state of liberty', yet it was not 'a state of licence'. Locke reasoned that everyone 'is bound to preserve himself so when his own preservation is not threatened everyone should’ as much as he can... preserve the rest of mankind', and no one may 'take away or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another'. In this way, 'men may be restrained from invading others' rights and from doing hurt to one another'. For Locke, 'every man has a right to punish the offender and be executioner of the law of nature'. Locke saw that this 'strange doctrine' was unworkable but argued that men remain in this state of nature until they consent to become members of ‘some politic society'. Locke saw civil government as the remedy for men acting as their own judges to enforce the law of nature. He considered that this social contract, freely entered into, entitled the government to enforce laws for as long as the government respected the trust placed in it. Should the people be subject to the exercise by the government of arbitrary or absolute power over their 'lives, liberties, and estates' then, according to Locke, governmental power would be forfeited and devolve back to the people.

The Social Contract of Jean-Jacques Rousseau developed the idea that an individual may have a private will (volonte particuliere) and that his private interest (interet particulier) 'may dictate to him very differently from the common interest'. Rousseau considered that 'whoever refuses to obey the general will shall be compelled to it by the whole body: this in fact only forces him to be free'. For Rousseau: 'Man loses by the social contract his natural liberty, and an unlimited right to all which tempts him,  and which he can obtain; in return he acquires civil liberty, and proprietorship of all he possess.' Published in 1762, The Social Contract was a precursor to the French Revolution of 1789 and the ideas it expressed have had considerable influence around the world as people have sought to articulate the rights of the governors and the governed. Thomas Paine was a radical English writer who participated in the revolutionary changes affecting America. He emigrated to America in 1774, and in 1776 produced a widely read pamphlet called Common Sense which attacked the idea of rule by monarchy and called for republican government and equal rights among citizens. He also worked on the 1776 Constitution of Pennsylvania and for the subsequent abolition of slavery in that state. Paine's publication, entitled Rights of Man, appeared in 1791 as a defence of the French Revolution in response to Edmund Burke's Reflections on the Revolution in France. Paine was popular with the people (one estimate suggests that various versions of Rights of Man sold 250,000 copies in two years). He was unpopular with the government and was convicted in his absence of seditious libel at the Guildhall in London. The crowds flocked to support his defence counsel, protesting the trampling of the 'liberty of the press'. Paine had by then already escaped to France and was rewarded with election to the National Convention for his defence of the Revolution. He was, however, later imprisoned, having angered the Jacobins for opposing the execution of the King. He himself escaped the death penalty (according to some accounts, the chalk mark was put on the wrong side of the door) and later left for America, where he died unfeted in 1809. His writings still resonate, and one does not have to look far to find bumper stickers and badges with Paine's aphorism from his Rights of Man: 'my country is the world, and my religion is to do well'. Paine's writings were not clear on what are the actual Rights of Man. His rights theory builds on Locke and Rousseau, and concludes that a man deposits in the 'common stock of society’ his natural right to act as his own judge to enforce the law of nature. Paine held that the 'power produced from the aggregate of natural rights... cannot be applied to invade the natural rights which are retained in the individual'. Reading Paine reveals what it is that makes human rights such an enduring concept. Paine is sentimental about other people's suffering: When I contemplate the natural dignity of man; when I feel (for nature has not been kind enough to me to blunt my feelings) for the honour and happiness of its character, I become irritated at the attempt to govern mankind by force and fraud, as if they were all knaves and fools, and can scarcely avoid the disgust at those who are imposed upon.

Paine railed against Burke for failing to feel any compassion for those who had suffered in the Bastille prison and for being unaffected by the 'reality of distress'. We can see here, I would suggest, the real seeds of the human rights movement: a feeling of sympathy for the distress of others, coupled with a sense of injustice when governments resort to measures which invade the perceived natural rights of the individual.

Other philosophers have certainly contributed to our contemporary appreciation of the importance of respecting human dignity. Following the German philosopher Immanuel Kant, they have sought to derive the logic of human rights from absolute moral principles which can be generated from the following imperatives: first, that each of us has to act according to the principles that we wish other rational beings to act on; and second, that a person should never be treated as a means to an end, but rather as an end in themselves. In the words of the modern philosopher Alan Gerwith: 'agents and institutions are absolutely prohibited from degrading persons, treating them as if they had no rights or dignity'. This is often the starting point for rights theories that emphasize the importance of individual autonomy and agency as primordial values to be protected.

The modern concept of human rights is thus traditionally easily traced to the ideas and texts adopted at the end of the 18th century. It is well known that the 1776 American Declaration of Independence stated: 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.' The French Declaration of the Rights of Man and of the Citizen followed in 1789, and its familiar first two articles recognized and proclaimed that 'Men are born and remain free and equal in rights' and that 'The aim of every political association is the preservation of the natural and inalienable rights of man; these rights are liberty, property, security, and resistance to oppression.' These revolutionary Declarations represent attempts to enshrine human rights as guiding principles in the constitutions of new states or polities. Still, the rights they referred to were mostly relevant only to those states in relation to their citizens, and only specific groups could benefit from their protection. The Declarations were inspired by a liberal conception of society and a belief in natural law, human reason, and universal order. Rights were believed (by men) to be the exclusive property of those possessing the capacity to exercise rational choice (a group that excluded women).

Attempts by Olympe de Gouge to promote (by appealing to Queen Marie Antoinette) a Declaration of the Rights of Women and a 'Social Contract Between Man and Woman', regulating property and inheritance rights, fell on deaf ears. In England, Mary Wollstonecraft's Vindication of the Rights of Woman appealed for a revision of the French Constitution to respect the rights of women, arguing that men could not decide for themselves what they judged would be best for women. The denial of women's rights condemned women to the sphere of their families and left them 'groping in the dark'.

In the 19th century, natural rights, or the 'rights of man', became less relevant to political change, and thinkers such as Jeremy Bentham ridiculed the idea that 'All men are born free' as 'Absurd and miserable nonsense'. Bentham famously dismissed natural and imprescriptable rights as 'nonsense upon stilts', declaring that wanting something is not the same as having it. In Bentham's terms: 'hunger is not bread'. For Bentham, real rights were legal rights, and it was the role of law makers, and not natural rights advocates, to generate rights and determine their limits. Bentham considered that one was asking for trouble, inviting anarchy even, to suggest that government was constrained by natural rights.

The contemporary scholar Amartya Sen has recalled Bentham's influence, and highlighted a ‘legitimacy critique ‘whereby some see human rights as 'pre-legal moral claims ‘that 'can hardly be seen as giving justiciable rights in courts and other institutions of enforcement'. Sen cautions against confusing human rights with 'legislated legal rights'. He also points to a further reaction to human rights discourse: it has been claimed by some that human rights are alien to some cultures which may prefer to prioritize other principles, such as respect for authority. Sen calls this the 'cultural critique'. This last criticism is a common preoccupation of commentators whenever the topic of human rights is raised.

Indeed, The Very Short Introduction to Empire suggests that, for some observers, the International Criminal Tribunal for the former Yugoslavia (well known for the aborted trial of Slobodan Milosevic) s an imperialist creation, and that for' such critics, the whole idea of "universal" human rights is actually a gigantic fraud, where Western imperialist or ex-colonial powers try to pass off their own, very specific and localized, idea of what "rights" should be as universal, trampling roughly over everyone else's beliefs and traditions'.

Karl Marx responded to the proclamation of rights in the Constitutions of Pennsylvania and New Hampshire and in the French Declaration by deriding the idea that rights could be useful in creating a new political community. For Marx, these rights stressed the in dividual's egoistic preoccupations, rather than providing human emancipation from religion, property, and law. Marx had a vision of a future community in which all needs would be satisfied, and in which there would be no conflicts of interests and, therefore, no role for rights or their enforcement. Marx also highlighted the puzzle that if rights can be limited for the public good then the proclamation that the aim of political life is the protection of rights becomes convoluted. We return to the issue of how to balance individual interests with the public good when we consider how modern human rights law allows for some limitations that are 'necessary in a democratic society'.

Is the story of human rights then simply a dispute between those who believe and those who doubt? Do different people, depending on their situations, perceive rights as either helpful for their struggle or as bourgeois obstacles to revolutionary change? Are rights enthusiasts and their critics in perpetual antagonism?

Modern rights theorists have sought to justify the existence and importance of rights by reference to some overriding value, such as freedom, autonomy, or equality. Such philosophical excursions are helpful because they tell us why we might want to protect human rights. We can see that rights can be instrumental to build a society that allows people the freedom to develop as autonomous individuals, while allowing participation based on equality in the community's decision-making process. In other words, we can start to admit that political arrangements are useful for protecting human rights, not because every community must be about protecting God-given rights, but rather because human rights seem to prove a useful way to protect other values, such as dignity and participatory democracy.

Some philosophers have suggested that we abandon the quest for a convincing theory of why we have human rights. For Richard Rorty, it is a fact that: 'the emergence of the human rights culture seems to owe nothing to increased moral knowledge, and everything to hearing sad and sentimental stories', and that we should put foundation list moral theories concerned with human rights behind us so that we can better 'concentrate our energies on manipulating sentiments, on sentimental education'.

Lively discussion continues about the utility of human rights for progressive change. Many question whether adopting a rights strategy might not result in entrenching existing property interests. Feminists continue to highlight the failure of human rights to address structural inequality between the sexes, issues of private violence against women, and the need for greater inclusion of women in decision making. Even reorienting human rights to address these issues could be considered simply a measure to reinforce stereotypes of women as victims of violence and in need of protection. At another level, as references to human rights feature increasingly in the discourse of Western leaders, some fear that human rights are becoming instrumentalized, deployed as excuses for intervention by powerful countries in the political, economic, and cultural life of weaker countries from the South. This level of criticism does not seek to deny that human rights exist. Indeed, human rights are under attack today, not because of doubts about their existence, but rather due to their omnipresence. Let us leave moral philosophy for now and see what insights we can glean from the way human rights have sometimes been portrayed in 20th-century literature.

 

Mary Wollstonecraft's dedication to Monsieur Talleyrand-Perigord

 

Consider - address you as a legislator - whether, when men contend for their freedom, and to be allowed to judge for themselves respecting their own happiness, it be not inconsistent and unjust to subjugate women, even though you firmly believe that you are acting in the manner best calculated to promote their happiness? Who made man the exclusive judge, if women partake with him, the gift of reason? In this style argue tyrants of every denomination, from the weak king to the weak father of a family; they are all eager to crush reason, yet always assert that they usurp its throne only to be useful. Do you not act a similar part when yon force all women, by denying them civil and political rights, to remain immured in their families groping in the dark? For surely, sir, you will not assert that a duty can be binding which is not founded on reason?

 

 Karl Marx, On the Jewish Question

 

 

It is puzzling enough that a people which is just beginning to liberate itself, to tear down all the barriers between its various sections, and to establish a political community, that such a people solemnly proclaims (Declaration of 1791) the rights of egoistic man separated from his fellow men and from the community, and that indeed it repeats this proclamation at a moment when only the most heroic devotion can save the nation, and is therefore imperatively called for, at a moment when the sacrifice of all the interests of civil society must be the order of the day, and egoism must be punished as a crime. (Declaration of the Rights of Man, etc., of 1793.) This fact becomes still more puzzling when we see that the political emancipators go so far as to reduce citizenship, and the political community, to a mere means for maintaining these so-called rights of man, that therefore the citoyen is declared to be the servant of egoistic homme, that the sphere in which man acts as a communal being is degraded to a level below the sphere in which he acts as a partial being, and that, finally, it is not man as citoyen, but man as bourgeois who is considered to be the essential and true man

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