The Right of Self-Defense and the Organic Unity of Human Rights
– Part I –
This is the first installment of a four-part essay in which Dr. David Little develops a unified theory of human rights based upon the personal and collective right of self-defense. His central claim is that that key words in the Preamble to the Universal Declaration of Human Rights point to the right of self-defense “against tyranny and oppression” as the moral and legal foundation of human rights, and account for the “organic unity” of the formative instruments: the Universal Declaration and the two Covenants on political, legal and economic, social, and cultural rights.
These days, there exists a potent two-pronged attack on human rights, one political and the other academic. Authoritarian governments including Russia, China, Iran, Venezuela, and Saudi Arabia are making a concerted effort to undermine the credibility and effectiveness of human rights.1Authoritarianism Goes Global: The Challenge to Democracy (Larry Diamond et al., eds., 2016) At the same time, prominent scholars in the US and UK are posing harsh challenges to its grounding, coherence, and durability.2See, e.g., Samuel Moyn, Christian Human Rights (2015); Samuel Moyn, The Last Utopia: Human Rights in History (2010);Stephen Hopgood, The Endtimes of Human Rights (2013).
For those appalled by authoritarian assaults and unconvinced by scholarly skepticism, there is an urgent need to reexamine and reaffirm the nature and purpose of human rights language. To be sure, Western academic critics do not intend to support the authoritarian campaign. But, if upon reexamination, it turns out that an essential objective of human rights is to withstand authoritarianism and offer a better way, it may be worthwhile to mount a fresh defense of that objective and the grounds it stands on, lest scholarly attacks, if uncontested, give inadvertent aid and comfort to the authoritarian cause.
Since the 1940s, when the first of the human rights instruments, the Universal Declaration of Human Rights [UDHR], was drafted and unanimously accepted by the UN General Assembly, critics have argued that common agreement on a list of rights was possible, but no acceptable cross-cultural justification of the list could be found. More recently, other commenters have postulated that original human rights language is “utopian.” Further, they view it as incoherent and impractical, and, contrary to conventional wisdom, believe it was not composed in reaction to fascist atrocities before and during World War II, but, instead, reflected parochial Western interests. Part of the incoherence of human rights language, some critics contend, is the irreconcilable gap between the “old” rights concerning civil and political protections, and the “new” rights concerning economic, social, and cultural protections. Lacking a unifying rationale, many skeptics conclude, it is doubtful human rights provisions share any deeply common, let alone universal, characteristics or grounding.
These criticisms are, for the most part, mistaken. Hiding in plain sight in the Preamble to the UDHR are two passages that suggest a rationale capable of providing a compelling moral justification and a convincing basis for what the drafters called, the “organic unity” of all the rights in the UDHR.
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of [humankind], and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, . . .
Whereas it is essential, if [all human beings] are not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, . . .
These passages leave no doubt that human rights, summarized as freedom of speech and belief and freedom from fear and want, are understood as a justified response to the “tyranny and oppression” present in the multitude of “barbarous acts” perpetrated by German and other fascists before and during World War II.
At bottom, these passages are about the legitimate and illegitimate use of force. Faced with tyranny and oppression, human beings have the right to exercise a legitimate use of force—“as a last resort”—in response to an illegitimate use of force—one that is cruel and arbitrary, which tyrants and oppressors depend on. These passages further assert that the worthy objective of the exercise of force is the establishment of “the rule of law”—that is, a legal and political order where cruel and arbitrary behavior is reduced by regulating force according to well-defined and established laws, impartially administered and enforced, that include, indispensably, the protection of human rights.
The Right of Self-Defense as Morally Foundational
Assumed here is the idea of universal subjective rights, meaning that all individuals, by nature of existing as human beings, possess an entitlement to claim (or have claimed for them) a certain performance or forbearance under threat of sanction for noncompliance. Also assumed are inferred duties to respect those rights. In the second passage, the key reference is to the right of self-defense, to be defined as the right to use reasonable or defensive force to protect oneself or others against arbitrary force, where arbitrary force means (at a minimum) the intentional infliction of death, impairment, serious injury, severe pain/suffering, or involuntary confinement primarily for self-serving or unfounded reasons.
As mentioned, the relevant sanction available to an individual or group exercising the right of self-defense against such a threat is the use of force under certain strict conditions—necessity, imminence, proportionality, and right intention; these conditions spell out the meaning of “reasonable or defensive force.” If an individual is faced with a mortal threat, each of these four conditions must be satisfied according to their terms: first, “necessity speaks to the question whether some less costly means of defense, such as merely showing a gun or firing into the air, might be sufficient to ward off the attack”; second, “[i]mminence means that the time for defense is now! The defender [simply] cannot wait any longer”; third, “[p]roportionality [prescribes that the] harm done in disabling the aggressor must not be excessive or disproportionate relative to the harm threatened and likely to result from the attack”; and finally, right intention means that “the defender must know about the attack and act with the intention [only] of repelling it [rather than of doing gratuitous harm to the attacker].3George P. Fletcher, A Crime of Self-Defense: Bernhard Goetz and the Law on Trial 19–20, 23–24, 25 (1988); see George P. Fletcher, A Crime of Self-Defense: Bernhard Goetz and the Law on Trial, 18–29; George P. Fletcher & Jens David Ohlin, Defending Humanity: When Force Is Justified and Why 30–62, 86–106(2008). For a comparable discussion of the universal conditions of defensive force, see Jan Arno Hessbruegge, Human Rights and Personal Self-Defense in International Law 65–68 (2017). The conditions apply similarly to collectivities confronted with the “barbarous acts” of tyrants and oppressors. Arbitrary force is the opposite of defensive force and is thus unconstrained by any of the four conditions.
The term arbitrary force needs to be broadened to include features also typically exhibited by tyrants and oppressors, with special pertinence to the World-War II setting. The broader version may be called arbitrary deprivation/neglect, meaning the enforcement of laws and policies aimed at withholding or negligently disregarding the means necessary for basic human survival primarily for self-serving or unfounded reasons. The means in question would include the opportunity to make a living and the ability to have adequate sustenance, housing, clothing, health care, education, and assistance under disabling circumstances beyond one’s control. If means like these are available and tyrants or oppressors are forcibly withholding or disregarding them primarily for self-serving or unfounded reasons, such actions are the proper target of resistance, including the use of defensive force.
The clear implication of the two passages, so understood, is that the right of self- defense is morally foundational to the whole system of human rights. Words used in the passages, such as “contempt for,” “barbarous acts,” ”outraged the conscience of humankind,” “tyranny” and “oppression,” are unquestionably moral utterances in the sense that they presuppose fundamental standards by which to condemn what is wrong and bad and to justify what is right and good in order to protect and support basic human welfare. Accordingly, arbitrary force, expanded to include arbitrary deprivation/neglect, is believed to be morally condemnable, and efforts and means to protect against arbitrary force, including the use of defensive force, is thought to be morally justifiable.
Importantly, force may be justified only by a certain set of reasons. Because of the universally unwanted effects of force—death, impairment, serious injury, severe pain/suffering, or involuntary confinement, whether inflicted directly or as the result of withholding or ignoring the means to avert them—everyone everywhere has the exact same presumed good reason to avoid or resist those effects. Therefore, if force is ever to be used, unequivocal justification must be provided. ‘Because I (we) want to’ or ‘because it gives me (us) pleasure’ or ‘because it serves my (our) interest’ are no reasons at all to justify such force.4In a longer version of this essay, a footnote comment is added on the “necessity defense” in relation to the idea of arbitrary force. If, under extreme conditions, taking an innocent life is the only means of saving one’s own life, it amounts to a partial but not pure example of arbitrary force, and for that reason is morally and legally perplexing. Indisputably, force is applied for a self-serving purpose. At the same time, some of the conditions of defensive force still apply: the threat of loss of life is imminent; no other means of protection exists; and the act does not involve malicious intent. Neither, obviously, are unfounded reasons, and prevaricating or offering mistaken claims about the use of force is particularly egregious because so much is at stake.
Giving justifying reasons presupposes a set of shared rational standards sensitive to the common interests of all parties involved and has as its objective bringing about consensual agreement among the parties. To refer primarily to one’s own interest, or to tell lies or mislead, in support of using force is blatantly offensive because the references fail to address the severely unwanted effects of the act upon the victim; such explanations leave the victim’s injured or deprived condition altogether out of account, as well as rule out any equal opportunity for informed dissent or consent. The principle of equality, in particular, is violated since applying force for self-serving or unfounded purposes either favors one set of interests over others or obscures the real interests served without good reason. Accordingly, such a statement could not possibly be a justification. In that respect, arbitrary force overlaps with the idea of cruelty, which means callous indifference to or pleasure in causing pain and suffering. It need hardly be mentioned that what has just been described accurately reflects Nazi and other fascist practice before and during World War II.
Conversely, the right of self-defense is a moral right, or a right justified by good reasons of a moral kind5A person “has a moral right when he [or she] has a [valid] claim, the recognition of which is called for—not (necessarily) by legal rules—but by moral principles, or the principles of an enlightened conscience.” Joel Feinberg, Social Philosophy 67 (1973).; namely, a right justified by the great value of acting in a measured (nonarbitrary) way to resist and subdue the exercise of arbitrary force, whether by means of inflicting death, impairment, serious injury, severe pain/suffering or involuntary confinement directly, or by means of withholding or disregarding of provisions for basic human survival and welfare.
However, the second passage also assumes a profound complication about the right of self-defense, which is one reason the drafters of the UDHR preferred to speak of it obliquely in the Preamble rather than list it as one right among others, which they had done in earlier drafts of the UDHR.6Johannes Morsink, Universal Declaration of Human Rights: Origins, Drafting, and Intent 307–12 (1999). No matter how morally justified armed rebellion in self-defense against tyranny and oppression might be, it is something, if possible, to be avoided. That is because of the precariousness of the practice. On the one hand, self-defense against arbitrary force, undertaken under strict limits, is morally justified. On the other hand, if practiced widely and regularly, its exercise, ironically, would likely increase the incidence of arbitrary force, since defenders take the law into their own hands. They become their own judges, juries, and enforcement officers in a “state of nature,” typically subject to passion and fear and therefore to conditions that are altogether unfavorable to judicious and measured (nonarbitrary) action.
According to the second passage, the complication is resolved by subjecting the right of self-defense to governmental control based on the rule of law and the protection of human rights, thereby deeming the moral right to be a legal right7A person “has a legal right when the official recognition of his [or her] claim (as valid) is called for by governing rules.” Feinberg, supra note 7. Elsewhere, Feinberg calls legal rights “enforcement claims,” which are a state’s obligation to guarantee on behalf of the protection of citizens. Joel Feinberg, Rights, Justice, and the Bounds of Liberty 224 (1980)., as well. Monopolizing force in accord with established laws, fairly administered by impartial legislative, judicial, and enforcement officials, and aimed at protecting individual citizens against acts of arbitrary force, constitutes an enormous public good. It represents a surer guarantee of the personal security and welfare of all citizens than allowing individuals to be laws unto themselves, and thus can only be achieved by common alliance. The moral basis of the common alliance is the equal right of everyone in common to personal security and basic welfare against the threat of arbitrary force. Self-defense is not egoistically grounded. Rather, it is defined as the right to use defensive force to protect oneself or others because the exercise of arbitrary force constitutes a universal violation.
In acknowledgement of the moral primacy of the right of self-defense, rule-of-law governments do continue to permit a remarkable, if limited, exception to their authority. Citizens retain the legal right to defend themselves, forcibly if necessary, in face of threats of arbitrary force where the police cannot protect them, though the government still reserves to itself final authority to determine whether such acts are carried out within the proper bounds of defensive force.♦
David Little is at present a research fellow at the Berkley Center for Religion, Peace, and World Affairs at Georgetown University, having served before that as Professor of the Practice in Religion and International Affairs at Harvard Divinity School, and as Senior Fellow in Religion, Ethics, and Human Rights at the United States Institute of Peace. In 2015, Cambridge University Press published Essays onReligion and Human Rights: Ground To Stand On, and a book of responses to his work by colleagues and former students: Religion and Public Policy: Human Rights, Conflict, and Ethics, ed. by Sumner B. Twiss, Marian Gh. Simion, and Rodney L. Petersen.