A Non-Theoretical Justification of Human Rights: A Response to David Little’s The Right of Self-Defense
– Part II –
T. Jeremy Gunn
This is the second installment of a two-part essay responding to David Little’s analysis of self-defense as a foundation for human rights. In the first part, Jeremy Gunn challenged David Little’s premise that a justification for human rights must be rooted in an underlying moral, philosophical, or theoretical foundation, instead arguing that the core human rights instruments were the product of negotiations and compromises among states. In this part, using the declaration of Independence and the Universal Declaration of Human Rights as examples, Gunn questions further the value of searching for theoretical foundations of human rights, arguing instead that human rights should better be understood as calls to conscience and to action.
Hunting for Snarks (and searching for theoretical foundations of human rights)
Lewis Carroll’s nonsense poem, The Hunting of the Snark, describes an expedition of nine human beings (including a Butcher and a Baker), as well as one Beaver, to capture an illusory beast called a Snark that inhabits an unnamed, faraway land. The poem begins at the conclusion of the group’s sea voyage when the Bellman sights land and cries out:
Just the place for a Snark! I have said it twice:
That alone should encourage the crew.
Just the place for a Snark! I have said it thrice:
What I tell you three times is true.
Six times the poem repeats (with modest variations) the motley crew’s methodology for hunting the Snark:
They sought it with thimbles, they sought it with care;
They pursued it with forks and hope;
They threatened its life with a railway-share;
They charmed it with smiles and soap.
The lengthy poem ends when the hunters hear the Baker shout that he has seen the Snark — after which he halts, mid-word, and then plunges into a chasm.
Since the poem’s publication in 1876, readers have attempted to attach a meaning to the Snark as well as to the poem in its entirety. Carroll himself was elusive in response to such queries, sometimes suggesting that there was no meaning and sometimes intimating that perhaps there was one.
Our quest here is not to determine whether human rights standards have a meaning (or meanings), but whether it is necessary, or even advisable, to hunt for a theoretical foundation in order to withstand onslaughts on human rights from academics or autocrats. In short, are we engaged in a heroic or futile quest, and should we be worried about falling into a trap arranged by a foe of our own imagining?
An Analogy: the 1776 American Declaration of Independence
Let us first approach the question of hunting for an underlying theoretical rationale in human rights documents by considering, by way of analogy, a phrase from the 1776 Declaration of Independence that was adopted by representatives of thirteen British colonies in North America. What should we make of its celebrated phrase “all men are created equal”? The Continental Congress designated the author of those words, Thomas Jefferson, to prepare the first draft of what became the Declaration. Although Congress ultimately made numerous changes to Jefferson’s text, that exact phrase appeared in Jefferson’s first completed draft.1 Jefferson’s “Original Rough Draft” of what was to become the Declaration of Independence read: “We hold these truths to be sacred & undeniable; that all men are created equal & independent, that from that equal creation they derive rights inherent & inalienable, among which are the preservation of life, & liberty, & the pursuit of happiness . . . .” From: 1 The Papers of Thomas Jefferson 243–47 (Julian P. Boyd ed., 1st ed. 1950).
The author of the five-word phrase “all men are created equal” was a slaveholder who bought and sold human beings in order to support his comfortable, landed-gentry lifestyle that included quantities of French wine, an impressive library, experimental agriculture, and the availability of ice during the summer months. He believed that the people whom he held in bondage and who made his gentlemanly lifestyle possible were mentally and morally inferior to him. The majority of the members of the Continental Congress who participated in the drafting and ratification of the Declaration also were slaveholders, and they most decidedly did not believe that “all men are created equal.” Like Jefferson, almost all believed that Blacks were inferior to Whites.
Not only did they believe that all human beings were not equal in intelligence or natural gifts, they also did not believe that all men should be treated equally before the law. The colonies that the delegates represented while in Philadelphia in the summer of 1776 imposed laws restricting voting on the basis of wealth, property, or religion, and most of the thirteen colonies allowed human beings to own other human beings. Although the delegates proclaimed that all human beings were “endowed by their Creator with certain unalienable rights,” they most certainly did not believe that it was their Christian duty to respect those God-given rights.
The word “men,” of course, also excluded the female half of the human population. This exclusion could not be defended on the grounds that somehow “men” was a generic term for “human beings” and that, in its historical context, “men” included women. The exclusively male group of delegates made no declarations about the importance of women’s rights, and the colonies that they represented in Philadelphia did not allow for women to vote and provided fewer legal protections for women than for men. The gentlemen landholders and lawyers who gathered in Philadelphia took great umbrage at the slavery of taxes imposed upon them without their consent, but saw little need to guarantee the rights of the majority of Americans — women and Blacks — who surrounded them. If we wish to charge the authors of the Declaration of Independence as being hypocrites, the evidence is squarely on our side.
To understand and evaluate the two declarations (The Declaration of Independence in 1776 and the UDHR in 1948), let us consider four (of many) possible approaches to understanding them.
A first approach, which is much more common in the interpretation of sacred scriptures, is to treat the texts as would fundamentalists, that is, as unimpeachable and not to be questioned. This covers the gamut of those who might take a text as the literal and inerrant word of God (as do Biblical or Quranic fundamentalists) or simply as establishing a binding law (as do “original intent” constitutional jurisprudence). Such approaches to analysis typically assume that modern readers of the foundational texts should simply apply the text as written, regardless of whether it appears to be logical or applicable to modern readers. That is, the text must be applied regardless of reason.
Second, the two declarations (Independence and Human Rights) should be condemned and dismissed for their hypocrisy and narrow focus. In such a reading, the Declaration of Independence, should be dismissed as applying only to White, property-holding males. A more modest approach would be to let pass the Declaration, but strike from it the hypocritical words “all men are created equal” and other such troublesome passages. This second approach, which is largely dismissive of the text, reflects, to some extent, an adamant atheist’s attack upon the Quran, Samuel Moyn’s challenge to human rights declarations, or Malcolm X’s or Elijah Muhammad’s condemnation of the “original sin” in the US Constitution. According to the latter, “Since 1776, you, Black man, have been worshipping” a white man’s holiday, not realizing that “they wrote the Declaration of Independence for themselves.”2 Eric J. Sundquist, King’s Dream 73 (2009). Applying this approach to the UDHR, it could be dismissed as narrowly representing “Western” values and as having been written by a system that included colonizing countries (such as France, Great Britain, and Belgium) but excluded representatives from Africa and other colonized lands.
A third approach may be thought of as including those who seek an underlying logic or governing norm within a text (whether the text is sacred or was written by mere mortals). Such readers seek to unpack important, but perhaps not self-evident, truths and values found within the given texts. They see their role as illuminating and justifying the perhaps hidden messages. They begin by assuming the special character of the text, and then deploy reason to unpack a sophisticated and underlying (and sometimes hidden) message, and finally make arguments to justify the importance of the text. To some extent, this is what I see David Little as doing in his essay.
Finally, there is the approach that I propose for understanding documents like the Declaration of Independence and the UDHR. These documents are not the result of a coherent and underlying philosophy or values-system that can be discovered with sufficient thought, but are political documents that emerged after negotiation, amendments, compromise, trade-offs, and adoption by majority vote or consensus. Those who were involved in the process may have been magnanimous, selfish, wise, short-sighted, racist, sexist, ignorant, manipulative, or well-intentioned. The governments that sent them to the negotiating table may have controlled their delegates or may have given them free reign to invoke their own personal beliefs. The results of this drafting sausage factory may have produced a text that was intentionally vague for the purpose of disguising disagreements, or it may deliberately be self-contradictory in order to obtain the necessary votes. For such political documents, the attempt to seek an underlying rationale is like hunting for the Snark: either the beast does not exist or, if it does, it will be perfectly happy to push you into its chasm.
And to use the very crude pragmatic argument: would it have been better for the future history of the United States if the drafters in Philadelphia had recognized their own hypocrisy and quietly deleted the five-word phrase from the Declaration and focused entirely on their objections to King George III? Or was it better, despite all of the hypocrisy, to leave it in?
The Value of the Declarations
The political-comprise nature of such documents does not fully vindicate either the cynicism or dismissal characteristic of the first approach explained above. Indeed, the value of these imperfect documents may come less from their philosophical coherence, theoretical elegance, or revealed, sacred truths, but more from the fact that they exist as a majority compromise of competing positions, interests, and worldviews. Rather than dismissing them for being inherently flawed — although they are inherently flawed — they may provide inspiration for having attempted, imperfectly, to articulate a shared ideal that transcended the immediate political and social realities that produced them. With such an approach, which I acknowledge is my own, the texts are to be invoked more as calls to conscience and appeals to “the better angels of our nature” than as intellectually sound philosophical treatises. That, to me, in no way undermines their value. And people who reject them on theoretical grounds may have more theoretical intelligence than compassion for humanity.
While the phrase “all men are created equal” is not a statement of fact and can easily be dismissed as naïve, it nevertheless contains within it “a machine that would run of itself,” to invoke the phrase that James Russell Lowell employed to describe the U.S. Constitution.3 James Russell Lowell, Political Essays 312 (1888). It can serve as a powerful and inspirational call to fairness and justice, even if it is not scientifically, theoretically, or philosophically sound. It can set the wheels in motion. The 1848 Declaration of the Rights and Sentiments, one of the most important founding documents of the women’s movement, declared in unabashed imitation of its 1776 predecessor:
We hold these truths to be self-evident: that all men and women are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted, deriving their just powers from the consent of the governed.
The power of these words, in 1848, came not from their philosophical coherence, but from their moral appeal to the historical chords of memory. They justifiably evoke the sentiment that the 1776 Declaration was flawed and did not live up to its guiding theme.4 For the Seneca Falls text, see Sally G. McMillen, Seneca Falls and the Origins of the Women’s Rights Movement 237 (2008). In the most famous speech of his presidency, and in order to explain the importance of the bloodiest war in American history to Federal soldiers, Abraham Lincoln opened his Gettysburg Address also by invoking the unfulfilled promise of the Declaration: “Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.” The failure of the Declaration to live up to its own stated ideals was a recurring theme for civil rights leader Martin Luther King. References to the Declaration of Independence “appeared countless times in his speeches and sermons.”5 Sundquist, supra note 2, at 16. He referred to it as being a “promissory note.” In his most famous speech, “I Have a Dream,” he asserted that “this note was a promise that all men — yes, black men as well as white men — would be guaranteed the unalienable rights of life, liberty and the pursuit of happiness.”
The important issue for understanding the Declaration of Independence, and in my opinion the UDHR and other human rights texts, is not that they embody an articulated and theoretically sound rationale, but that they appeal to noble ideals and to the “decent respect to the opinions of mankind.” It is unfortunate that the targets of Professor Little’s essay, the autocrats and the academics, do not see this. And, unfortunately, a better theoretical justification is not likely to persuade them. The UDHR and the North Star serve as helpful guiding references on earth, even though we cannot imagine ever reaching them.
It may be unwanted for someone of Professor Little’s philosophical acumen to be challenged by someone who asserts that the modern human rights regime emerged from political compromises rather than a compelling theory — whether known at the time or discovered later. But perhaps it is worth noting that the rights adopted in Paris in 1948 were, to some extent, “the common opinion of mankind” about what was fair and just. Although the drafters were not Kantian philosophers standing behind John Rawls’ veil of ignorance, they may have been attempting to offer something akin by effectively asking what should be the shape of human rights everywhere in the world, whether in their own countries or elsewhere. Whatever limitations, philosophical or imaginative, that the UDHR drafters displayed, the core of their vision has endured for more than 70 years. The problem, at root, is not that authoritarians and academics are awaiting a better theoretical foundation before agreeing to respect human rights, but that they are caught up in their own small worlds that cannot appreciate the simple fact that the UDHR was a document, however flawed, written by states for the purpose of calling themselves to account on behalf of their own peoples. ♦
T. Jeremy Gunn is the University Professor of Law and Political Science at the International University of Rabat (Morocco). He received his Ph.D. from Harvard University, and has published widely in the area of religion and law and religion and politics.