Human Rights, Human Dignity and Personal Autonomy:
A Reflection on David Little’s Theory of Self-Defense and Organic Unity
Mark Hill QC
There are few people better placed to contribute to Canopy Forum than David Little, a leading authority on the history of religious freedom, ethics and human rights, who I first met a quarter of a century ago and whose company I have enjoyed many more times in the intervening years on both sides of the Atlantic. His essay, released in sequential sections rather like the early novels of Charles Dickens, provides a rich resource for those interested in human rights, particularly in an era when the whole concept is subject to political and academic criticism.
Little draws on the Preamble to the Universal Declaration on Human Rights (UDHR) as articulating a clear justification for a suite of specific rights rooted in a response to tyranny and oppression, as evidenced by the ‘barbarous acts’ of Nazi and other fascists during World War II. The rights seek to steer a definable course between the legitimate and illegitimate use of force and to promote the rule of law. At its core is the preservation of the safety and sanctity of the person and defining the boundaries of legitimacy and reasonableness in the use of force in self-defense.
Self-defense is a concept familiar to all, not merely the esoteric intellectual elite. I am put in mind of the specimen directions issued to the British judiciary when summing up a criminal trial to a jury:
If on the evidence you are sure that [the Defendant] was the aggressor and did not believe [he was] under threat from [the victim] then no question of self-defence arises and, subject to the other elements of the offence being proved, your verdict will be one of Guilty. If, however you consider it was or may have been the case that [the Defendant] was or believed [he was] under attack or […] about to be attacked you must go on to consider whether his response was reasonable. If you were to consider that what [he] did was, in the heat of the moment when fine judgments are difficult, no more than [he] genuinely believed was necessary, that would be strong evidence that what [the Defendant] did was reasonable . . . .1Emphasis added.
Making the jury the custodian of the assessment of reasonableness and proportionality2Painting on a broader international canvass, Little identifies the modifiers as: necessity, imminence, proportionality, and right intention. is relatively straightforward in the case of a criminal charge involving an isolated act of physical violence, but how does this play out in cases of insurrection or civil disobedience? Little makes an evidentially credible case for the existence of the rudimentary ingredients of the individual and collective right of self-defense across cultures, religions, and philosophies. This core phenomenon, he argues, provides — and was intended to provide — organic unity to a seemingly diverse cluster of particular rights. He also posits an amalgam of both traditional human rights — freedom of speech and belief, and freedom from fear and want — and newer rights which are economic, social, and cultural. The right of self-defense is morally foundational to the entire system of human rights.
Recovering the understanding of self-defense as the source of organic unity for human rights is not merely a worthy intellectual project: it has practical implications. One of the challenges for human rights, particularly in twenty-first century Europe, is the varied nature of their application. They form part of the architecture of international relations by providing minimum standards and aspirational objectives for nation states and by outlawing persecution and similar abuses — macro-enforcement. But they have also come to be used (and sometimes misused) at a lower grass-roots level in legal disputes between individual citizens — micro-enforcement. This is the effect of the European Convention on Human Rights which adopts similar language to the UDHR. Convention rights are enforceable against State parties in the European Court of Human Rights in Strasbourg and in civil proceedings by litigants in the national courts of those countries which have incorporated those rights into their domestic legislation.3For example in the United Kingdom, in consequence of the Human Rights Act 1998
In consequence, these rights have to do a lot of work in multiple environments. The demands we now place on those rights are far greater than the framers of the UDHR could have contemplated in the 1940s and 1950s. Lawyers operate in the territory of micro-enforcement, focusing on the immediate and the practical as they navigate the reach and limits of a particular right in its application to a fact-specific dispute. They do not have the luxury of the high-vaulted theoretical architecture expounded by Little. But they cannot fail to be aware that their capacity to assist a client by the rigorous application of human rights at the micro level is predicated upon an understanding of their organic unity, albeit unspoken in legal argument and largely unattributed in judicial opinions. Curiously, at the same time that Little has been delving into the origins of the global human rights regime, others have been exploring fresh contemporary insights. The forthcoming Routledge Handbook of Freedom of Religion or Belief,4Routledge Handbook of Freedom of Religion or Belief (Silvio Ferrari et al. eds., forthcoming). This handbook includes a chapter by David Little in which he expands upon his organic unity thesis, as well as one by Prof John Witte Jr. giving an historical perspective on the right to freedom of religion. of which I am co-editor, seeks to expand the religious liberty conversation beyond its traditional Western setting by including contributions from African and Asian scholars giving their perspectives on human rights, together with insights from Judaism, Christianity, Islam, Buddhism and Hinduism. Interestingly, these chapters provide support for Little’s argument on organic unity and say something about the universality of the UDHR as well as its declaratory nature.
Another recent innovation is the Punta del Este Declaration, which was drafted to coincide with the seventieth anniversary of the UDHR and intended to be supplementary to other international instruments. The work of leading international scholars,5I am proud to have assisted in the drawing up of the document and am one of the original signatories. its main emphasis is on the significance of human dignity within the human rights framework,6The second recital to the Punta del Este Declaration recalls that the Preamble of the UDHR declares that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world.” but, more importantly, it provides an interpretative tool for understanding, implementing, and enforcing human rights, particularly in relation to religious identity. Article 1 reads:
The inherent human dignity of all people and the importance of respecting, promoting, and protecting human dignity for everyone everywhere is the foundational principle and the key objective or goal of human rights, as well as an invaluable criterion for evaluating laws, policies, and government actions for how well they accord with human rights standards.
There is a propitious coalescence between theories of human dignity and those of self-defense. Both happily coexist at macro- and micro- levels. Take the criminal court example with which I began and the advancement of self-defense in a jury trial. The features of reasonableness and proportionality, by which the applicability of the self-defense claim falls to be assessed, engages with the dignity of both the victim and the defendant. That of the victim is served by preserving their personal safety unless and until they themselves become the aggressor. The defendant, on the other hand, is protected from being compelled to stay inert when subject to actual or threatened violence. The macro-engagement can be seen in terms of state-sponsored persecution, genocide, and similar atrocities where acting in defense of an oppressed group is undertaken to uphold the human dignity of that group.
Little acknowledges that the moral primacy of the right of self-defense results in a limited curtailing of state authority. Citizens have the legal right to defend themselves, forcibly if necessary, in the face of threats of arbitrary force where state authorities cannot protect them. But the government still reserves to itself final authority to determine whether such acts are carried out within proper bounds. This is what is being lived out in my example of the jury trial where the jurors make the valuation on the state’s behalf. But as well as self-defense and human dignity, there is also the overlay of a complementary factor common to human rights discussions, namely autonomy. This concept is similarly freighted with multi-factorial meanings and is also required to do quite a lot of work in both macro- and micro- engagement. It covers individual autonomy, the right to act in accordance with one’s beliefs and precepts. It also extends to associational autonomy, allowing legitimate self-governance for religious organizations. And it applies internationally in affording autonomy to nation states to defend their borders and their people. When the autonomy of a person, a group, or a nation state is threatened, the individual, the organization, and the country has a right to self-defense. But, as with the judge’s direction to the jury to which I again return, the exercise of that right must be subject to a nuanced evaluation of reasonableness and proportionality in the given circumstances.
There is a distinct advantage in using the language of self-defense, human dignity, and autonomy because they are terms which avoid — or at least downplay — the aggressive absolutism of rights. Self-defense is a long-stop concept. It kicks in when other resolutions have been exhausted and when there is the use or immediate threat of force. It is reactive and proportionate. Human dignity is a maximizing concept. It applies to everyone, everywhere. Disputes can be resolved by safeguarding and affirming the dignity of both winner and loser. Autonomy is a liberating concept. It frees people and associations to be truly themselves. The difficulty with how human rights have mutated since the glory days of the 1950s is that they are now commonly asserted in a raw form without the tempering so well articulated by Little in advancing his organic unity thesis. Protagonists these days tend to say: “it is my right to do x and I don’t care about anyone else.” We rarely hear the language of civic duty, although this may have changed somewhat with the Covid-19 pandemic where our actions have become more informed and motivated by concern for the health and well-being of others.
In truth, human rights — even those which are non-derogable — are qualified in that their exercise is constrained by limitations hard-wired into the text of international instruments.7See Mark Hill & Katherine Barnes, Limitations on Freedom of Religion and Belief in the Jurisprudence of the European Court of Human Rights, in The European Court of Human Rights and the Freedom of Religion or Belief: The First 25 Years Since Kokkinakis 82–102 (Jeroen Temperman et al. eds., 2019). For example, under the European Convention on Human Rights, the exercise of the right to freedom of religion is subject to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health, or morals, or the protection of the rights and freedoms of others.
Little observes that the framers of the UDHR worried that the inclusion of an unqualified endorsement of the right to self-defense might encourage rebellion, and thus imperil fragile post-war democracies. Their concerns were legitimate. Misunderstood, such a stand-alone right could be read as an endorsement of anarchy and mob-rule. However, as Little makes plain, the right to self-defense is a constant subliminal presence, informing the interpretation of the UDHR and other human rights texts. It sits comfortably with ideas of human dignity and autonomy, and it can continue to function in rooting the amorphous human rights culture in foundational principle. A full understanding of the source of human rights and their organic unity is as important today is it has ever been. Little is to be fêted for bringing the right to self-defense so assuredly and comprehensively into the sunlight. ♦
Professor Mark Hill QC is an adjunct professor at Cardiff University, Pretoria University, Notre Dame Law School, Sydney and King’s College, London; and is a fellow at the Center for the Study of Law and Religion at Emory University, Atlanta. He practices at the Bar in London and sits as a judge in the criminal courts on the Midland Circuit.