The Many Voices of Human Rights
The Commission on Unalienable Rights has already generated significant criticism, much of it from human rights advocates concerned that its conceptualisation is flawed and its composition limited. Its stated purpose — “to provide fresh thinking about human rights and propose[s] reforms of human rights discourse where it has departed from our nation’s founding principles of natural law and natural rights” — worries critics who see the new Commission as but another salvo in the culture wars, and not as an opportunity to advance human rights around the world.
When announcing the details of the Commission, Secretary Mike Pompeo explained that he hoped that it would “revisit the most basic of questions: What does it mean to say or claim that something is, in fact, a human right? How do we know or how do we determine whether that claim that this or that is a human right, is it true, and therefore, ought it to be honored? How can there be human rights, rights we possess not as privileges we are granted or even earn, but simply by virtue of our humanity belong to us?”
These are important questions, to be sure, questions to which there are a variety of answers, including amongst champions of human rights. Indeed, the global resonance which human rights enjoys is precisely because it can incorporate a variety of complementary answers to the question of the foundations of human rights, instead of locating the answer in one particular tradition exclusively.
The charter establishing the Commission explains that the recommendations on human rights are to be grounded “in our nation’s founding principles and the 1948 Universal Declaration of Human Rights.” However, this framing of the parameters of the discourse of human rights makes problematic assumptions about the historical development of human rights categories and, consequently, about the basis on which human rights claims are established. Certainly, the United States Declaration of Independence and the Bill of Rights in its Constitution represent crucial milestones in the articulation of the fundamental principle that all human beings are equal and endowed with certain unalienable rights. However, they did not afford equal dignity and rights to women, children or slaves. More than a century later, the 1948 United Nations’ Universal Declaration of Human Rights (UDHR) took another important step with its recognition of “the inherent dignity and of the equal and inalienable rights of all members of the human family” and the enumeration of the rights to which all human beings are entitled.
The UDHR explicitly included in its ambit those who had been excluded from the sphere of equal dignity and respect in earlier centuries. Yet the UDHR also reflected the limitations of its origins. Voices from the colonies were virtually absent from the process through which the declaration was developed. Moreover, the UDHR still bore the traces of its western philosophical origins. The bookending motif of the founding documents of the United States and of the Universal Declaration of Human Rights fails to recognize the limitations inherent in these documents.
More seriously, however, it fails to acknowledge the strides that have been made in the 70 years since 1948, not only in relation to the substantive claims that human rights make, but also in relation to their very foundation, or in Secretary Pompeo’s words “how we have rights simply by virtue of our humanity.” As German sociologist and social theorist Hans Joas argues, history and justification are intertwined in specific ways, and perhaps nowhere more clearly than in the category of human rights.
Over the last seven decades, human rights discourse has embraced different tradition-specific ways of describing how human rights are grounded. These tradition-specific explanations of why all human beings have rights have included Buddhist, Christian, Islamic, Kantian, Lockean, Indigenous, African and other philosophical and religious perspectives. As a result, people around the world now draw on their own comprehensive doctrines, worldviews, concepts of the sacred, symbols and metaphors in order to establish, justify and explain the fundamental claim that each person enjoys an inalienable dignity, although each tradition has also neglected or repudiated the implications of that claim at various stages in its history.
This transformation of human rights discourse has, in part, been a function of the deepening globalisation that has been evident throughout the twentieth century. More importantly, however, it is a response to postcolonial, feminist and orientalist critiques of the ethnocentrism of the enlightenment project, and of the genealogies of power that are inevitably a feature of all universalist projects, including human rights. Since the promulgation of the UDHR, human rights discourse has evolved from being an expression of a predominantly western philosophical and theological framework, grounded in transcendent norms and apprehended through a form of abstract reasoning (i.e. concepts of natural law or natural rights) to become a situated ethic, supported by plural foundations, through which certain irrevocable commitments that flow from human dignity are expressed. Natural law and natural rights groundings of human rights retain their salience for those for whom these categories are meaningful, and the traces of their formative role in the original conceptualization endures. However, they stand amongst a plurality of grounding philosophies and not as the only, or not even as the preferred, philosophical anchors.
Indeed, the seeds of this evolution were already evident in decades leading up to the 1948 Declaration itself, most especially at the Paris Peace Conference of 1919,1 E. J. Dillon, The Inside Story of The Peace Conference (New York: Harper & Brothers, 1920), 4–6. in the 1947 UNESCO Symposium on Human Rights2 Jacques Maritain, (ed.) Human Rights Comments and Interpretations. A UNESCO Symposium (London & New York: Allan Wingate, 1949). and in the debates at the Third Committee of the Third Session of the General Assembly in 1948. At the UNESCO Symposium, delegates were divided between those who argued for a normative and universal account of the grounding of human rights, and those who believed that human rights would flourish only when a diversity of grounding philosophies or comprehensive doctrines were acknowledged and accepted. Jacques Maritain’s now infamous comment illustrates this point. Maritain reported that those present were able to agree on the existence of human rights but only on condition that no one asked them why.3 Maritain, 9. The UDHR itself reflected this emerging plurality of grounding philosophies, including religious ones – a point which is captured in Johannes Morsink’s recent analysis and also acknowledged in Mary Ann Glendon’s A World Made New.4 Mary Ann Glendon A World Made New Eleanor Roosevelt and theUniversal Declaration of Human Rights, (New York: Random House 2001), 77. Nor did Maritain regard this as a fatal blow to the concept of universal human rights. Rather, the goal was to achieve agreement on the basis of common practical ideals, not on the affirmation of one and the same conception of the world.5 Maritain, 10.
The postcolonial and feminist imperatives that have transformed human rights discourse have also impacted the traditional natural law frameworks. At its core, the natural law tradition in Christian (especially Roman Catholic) ethics has been a way of expressing the conviction that the difference between good and evil is a meaningful one, that human beings have an obligation to do good and avoid evil, that we come to understand what this entails through our reason, and that the precepts of natural law are universally binding. As to the normative content of the natural law, this has been the subject of much debate over the centuries, particularly in the twentieth century. Revisionist and feminist Catholic moral theologians including Margaret Farley, Lisa Sowle Cahill, Charles Curran and James Keenan have challenged ahistorical, essentialist, physicalist and patriarchal interpretations of the precepts of natural law and have transformed how natural law is understood in Catholic ethics. In this view, our understanding of human nature is constantly evolving, human reasoning is grounded in experience, moral norms emerge not as a property of nature, but as a result of our interpretation and are therefore subject to change as our understanding of how human flourishing can be realized grows. While this may not be the interpretation of natural law to which the Commission refers, it is nonetheless a significant strand in theological ethics, and is an ally in the fight for gender equality, women’s rights and the rights of LGBTQI+ persons.
Conor Gearty is correct that we cannot unlearn the skepticism about truth that has made the liberal version of human rights untenable.6 Conor Gearty, Can Human Rights Survive?, (Cambridge: Cambridge University Press, 2006), 40. Indeed, this same skepticism has undermined traditional concepts of natural law. In fact, human rights discourse has already begun to address the challenges associated with this skepticism and to transcend the limitations of its philosophical origins. As I have argued elsewhere, human rights discourse will be more not less secure when it acknowledges the contingent, historical nature of our moral frameworks and when it moves away from singular accounts of why human beings have rights. The Commission on Unalienable Rights has the potential to advance this agenda, in particular by demonstrating how a specific philosophical worldview can partner with other comprehensive doctrines in the service of the profoundly ethical project of promoting human rights.