Depending on one’s perspective the origins of human rights can be traced back to Cyrus the Great, Magna Carta or to Immanuel Kant’s Categorical Imperative. Like all important social concepts it has been implicit in human institutions before being given greater philosophical clarity. Whatever its origins, there can be little doubt that the twentieth century was a high watermark in the development of human rights and their embodiment in political and legal institutions through the UN Declaration of Human Rights at the end of the Second World War, as both a statement of modern democratic civilised values, and a measure by which to evaluate one’s own nation’s progress and, perhaps more commonly, to criticise other cultures or regimes that did not meet its standards.
By contrast, while the twenty-first century has witnessed an acceleration of human rights legislation in the West, and Europe in particular, the status of human rights as a mark of civilised culture is increasingly threatened. This has happened externally through the rise of China as a world economic and political power that does not adhere to the ideology of human rights, nor observe them in practice, certainly not the rights of free speech and expression of dissident views. The rise of political Islam and its rejection of democracy and Western legal systems in favour of its frequently extreme interpretations of Sharia, has also dented the idea of human rights as a human universal given. Sometimes, even the West’s own stance on human rights has been compromised, for example by the acceptance of torture in the ‘War on Terror’ and by attitudes towards the present influx of migrants arriving from Africa and the Middle East.
Some would consider the greatest damage, though, is that which has been seemingly self-inflicted by an almost endless stream of legal judgements that are said to offend common sense, standards of decency, conscience and national sovereignty, and which threaten to bring the very notion of human rights into disrepute. The recent report by a UN working group on arbitrary detention, which asserts that the WikiLeaks founder Julian Assange has been unlawfully detained was met, certainly within the establishments in Britain and Sweden, with incredulity, a feeling widely shared by the press and most of the public; after all, how could someone who had voluntarily taken refuge in the embassy of a third country with which neither the UK nor Sweden has an extradition treaty, be considered to be ‘detained’ in any meaningful sense of the word. Examples like this have, over the past few years, tarnished the image of human rights among the general public, though this has not precipitated as much serious analysis of rights as their widespread permeation into our institutions and discourses deserves.
The critique of rights is not peculiarly recent, however. From the inception of its use in the modern sense, probably with Locke’s ‘Vindication of the Rights of Man’, the status of the whole idea of universal rights has been questioned. Bentham famously excoriated what were then referred to as natural rights as ‘nonsense on stilts’. Bentham was not objecting to the idea of ‘securities against misrule’, something that had been established in thinking on rights since the signing of the Magna Carta; what he objected to was the idea that rights have a foundation in human nature (Schofield, 2003). It was this latter idea, advanced by some of the thinkers and ideologues behind the American and French revolutions and that was destabilising governments across Europe, that Bentham and others in the Empiricist tradition decried (Smith, 2012).
The contemporary English philosopher Roger Scruton, in a recent lecture on natural rights (Scruton, 2011) has undertaken an analysis of the various components of the human rights issue, which is exemplary in its clarity and exposition of the various distortions and consequences to which it has given rise in the law courts. He follows, though not necessarily in the same language, the tripartite division of rights introduced by the Czech jurist Karel Vasak (1979) into three ‘generations’: first-generation, ‘civil-political’ rights; second-generation, ‘socio-economic’ rights; and third-generation, ‘collective-developmental’ rights of peoples and groups. For Scruton and others following in the Benthamite tradition only the first of these, civil-political rights, has any validity. Scruton offers a plausible definition of rights as having ‘the function of enabling people to claim a sphere of personal sovereignty: a sphere in which their choice is law’ (2011, para 33). These spheres ‘define the boundaries behind which people can retreat and which cannot be crossed without transgression’ (ibid). It is the compromises between free and sovereign individuals that constitute the ‘cement of society’ and it is this sovereignty that needs to be protected against incursions of the state. The only valid understanding of human rights, therefore, is as ‘instruments which safeguard sovereignty’ (ibid, para 35).
Scruton puts forward three objections to socio-economic and collective-developmental rights: 1) they create a sense of obligation, to respect the right, where no relationship, no reciprocity and, therefore, no obligation exists; 2) they result in the enlargement of the state to provide the economic and social benefits to which people are thereby entitled, in the absence of a specified entity or person upon whom this obligation falls; 3) legal judgements based on rights result in a zero-sum game rather than a reasonable compromise, thus loosening the ‘cement of society’. He also notes that, despite the increasing frequency of such judgements, the term ‘human rights’ is used indiscriminately and unreflectively in most cases.
Though I cannot fault the logic of Scruton’s argument, I think the premises upon which it is based are debatable, as are some of the assumptions that lie behind it. First, he does not offer a definition of human rights as such, but at best a definition of their function. Secondly, he argues on the basis of individualism, which is an ideological stance not shared across all cultures, nor indeed wholly shared within the Western academic tradition. As such, the approach of Scruton and others of a similar philosophical outlook is predisposed to find that human rights in themselves are meaningless and nonsense outside of protection of the individual and their privacy from the encroachments of the state. I propose to start from the assumption that in asserting a right of whatever nature or ‘generation’ a person is doing something that is meaningful to them and explore what that meaning is.
There can be little doubt that when a person claims a right they are asserting something about their own identity and also their worth as seen through others’ eyes. Anthropologically speaking, while humans have individuality in their physical being and in their experience of the world, we are also clearly throughout our lives, from birth to death, social beings. If we do not live in human society, relating to others, we are clearly diminished in our humanity. At the same time throughout our lives, in different ways at different times in our development through the life course, we negotiate space for our individuality to flourish. Therefore, in our full humanity both freedom and belonging are essential aspects of what we are and, I suspect, of what the discourse of human rights sets out to achieve. While I have great respect for the British empiricist tradition out of which philosophers like Scruton argue, I believe that their overemphasis on freedom, while clearly important, ultimately leads to a distorted view of human actuality and potentiality.
Rights, of course, have no ontological reality outside of human discourse, but within human society – as opposed to the state of nature – the discourse of rights is, stripped down, one of power: the power to negotiate with power a compromise between freedom and belonging; freedom from the intrusive or abusive power of a collective other, such as a state, a religion, institution or mob, but also to establish an acceptance of belonging, even against the sometime exclusionary force of the other. I think that one of the errors of the individualist position is to assume that there are legitimate and illegitimate forms of power and that the claims of the individual based on religious conviction, conscience, intuition or revelation – or even reason for that matter – take precedence over that of the collective, such as the community or the state. But I find such a view lacking justification. All power is ultimately arbitrary (Bourdieu and Passeron, 1977); no state, institution, social group or individual have ultimate legitimacy, but all have differential power, and while the state may have a virtual monopoly of physical violence, useful in waging war and keeping order, the discourse of rights is a coercive weapon in addressing the balance of power in an attempt to establish the optimal balance between freedom and belonging.
I agree with Scruton’s point that asserting a right, rather than entailing a set of responsibilities – which obviously he, amongst many others, feels would be fair and just – imposes a duty on others, with whom one does not necessary have any relationship, to respect the right. But I would argue that this is just the point of a right; it forces the recognition of a relationship in which there is acceptance of both a degree of belonging and a degree of freedom. Society is an interlocking complex of such obligations, to the extent that they tend towards de facto reciprocity, despite there being no logical entailment for such. For example, the rights to free association and free speech for citizens creates a duty for a government to uphold those rights, against those who would deny them to others with whom they disagree, even if, under provocation, that be the government (or branch of) itself. Conversely, the government asserts the right to collect taxes and the citizenry therefore has a duty to pay them, notwithstanding the fact that taxes are probably the last remnant of the state’s exercise of arbitrary power. Both these rights bind through obligation, but the rights themselves are two mere facts between which there is no causal or other relationship. One could argue, though, that it is the sum of such brute facts that hold societies together. Such a view, it seems to me, is not that different from those empiricists who advocate the self-regulation of the commons through ties of obligation (Ridley, 1996).
For this reason, I do not accept the objection of Scruton and others to the role of the state as a matter of principle, though I accept many of the criticisms of states’ practices around the world, including those of democratic states. Modern life would be impossible without the existence of a well-developed state, which marshals capabilities and resources beyond the capacities of individuals and organisations. This seems to me aptly demonstrated by attempts to diminish the role of the state, which not only reduce its effectiveness, but also, paradoxically, result in an extension of its powers in certain areas. I think this prejudice arises from two sources: one is the idyll of the past, the belief that somehow things were better in ages gone by when the state was smaller and less powerful, an idyll to which we all succumb at some time or other, although a study of history should soon disabuse us of that idea; the other is the belief that there are both legitimate and illegitimate forms of power, whereas all power is arbitrary. The discourse of rights is one that seeks to redress imbalances in power, and one which is likely to continue indefinitely.
The problem lies, ultimately I believe, in a diminished idea of the individual and of individualism, a type of individualism defined in opposition to the collective, where the collective is antagonistic to the individual and the individual’s interests. In reality, the individual and the collective are interdependent, and the type of freedoms and independence we pursue today can only be guaranteed by a powerful state. At the same time demands made upon the state throughout history have reshaped the state, and continue to do so. The fact that many of our demands are incompatible with each other virtually ensures the expansion of the state, as Scruton asserts; but, for example, claims for – and responses to – more autonomy for cities and regions, suggest that states are capable of adaptability as well as continuity. Rather than the diminution of the state, I suggest that what we require is it becoming more benevolent, and to that extent more distant and less visible, with power residing more locally and individually and more equitably distributed. But this absolutely requires an interlocking complex of rights and duties, even if they are sometimes incompatible.
Twiss (1998), in fact, argues that the three generations of rights are not just compatible, but reinforce each other, and that the privileging of one, over time, jeopardises the entire social fabric that accommodates it. The reaction to some of the recent court decisions, of the sort that Scruton among others refer to, shows that there is an awareness, to which governments are not entirely immune, that when rights become unbalanced this threatens the social fabric. There is even growing disquiet among some leading gay rights campaigners that some court decisions that have favoured gay customers refused services by those who claim to be acting out of conscience may have resulted in an injustice (Phillips, 2016). Concerning the Assange case, my first reaction was disbelief. But looked at from a more dispassionate distance, one begins to see that there may be some validity to the perspective of the panel. Regarding the panel’s report, a UK government official made the point that Britain does not accept the principle of diplomatic asylum (Bowcott and Crouch, 2016). I am in no position to assess the validity of this principle, except to note that the fact that the UK government does not accept it does not of itself invalidate it as a potential principle of justice in the complex world of interactions between states.
Both individuality and sociality are hard-wired into our nature and, therefore, the aspiration for both freedom and belonging. Different societies, peoples and national cultures at different times favour one over the other and this drives forward social evolution. There is no doubt that belonging forces obligations on us that can become burdensome and that we need sometimes to retreat into the privacy of the individual ‘sphere of sovereignty’; and indeed such a place is constantly on the agenda of the human rights discourse. But, equally, so is our inborn sociality and our obligations to others, particularly the alienated, excluded and persecuted, and the acceptance of this burden – whether willingly or not – is a mark of our humanity. In the end we must weigh this against the genuine inconvenience placed upon us and sometimes fabricated outrage inspired in us when these obligations are given legal bite.
Owen Bowcott and David Crouch (2016), UN panel calls on UK and Sweden to end Julian Assange’s ‘deprivation of liberty’, The Guardian (online, 5th February 2016, para 9) available at: The Guardian
Pierre Bourdieu and Jean-Claude Passeron (1977). Reproduction in Education, Society and Culture. London: Sage.
Melanie Phillips (2016), Gay activists want to have their cake and eat it, The Times (online, February 5th 2016), available at: The Times
Matt Ridley (1996). The Origins of Virtue. London: Penguin.
Philip Schofield (2003), Jeremy Bentham’s ‘Nonsense upon Stilts’, Utilitas, Volume 15, Issue 01 (March 2003), pp 1-26.
Roger Scruton (2011), Nonsense on Stilts (Prepared for a Conference on Human Rights, Lincoln’s Inn, London, 2011), available at: Morec.com
George H. Smith (2012), Jeremy Bentham’s Attack on Natural Rights, Libertarianism (online, June 26, 2012, para 7), available at: libertarianism.org
Sumner B. Twiss (1998), Moral Grounds and Plural Cultures: Interpreting Human Rights in the International Community, The Journal of Religious Ethics, volume 26 (2), pp 271-282.
Karel Vasak (1979), Pour le troisième génération de droits de l’homme: les droits de solidarité [For the Third Generation of Human Rights: the Rights of Solidarity (Inaugural lecture to the tenth study session of the International Institute of Human Rights, Strasbourg)], Revue de Droits de l’Homme, 1979, 3.