Self-Defense and Human Rights:
David Little Responds
To begin with, let me express my deepest appreciation to the six respondents who have taken the time and made the effort to provide such thoughtful and stimulating comments on my essay. It is only by engaging in interactions like these that we can begin to ascertain whether my proposal has any merit.
Responding to Jeremy Gunn’s A Non-Theoretical Justification of Human Rights: A Response to David Little’s “The Right of Self-Defense”
It makes sense to start with Jeremy Gunn, not only because he is first in line, but also because he poses the sharpest challenge to my entire endeavor. If he is right, there is no reason to proceed further since “human rights do not need, and have never needed, philosophical, theoretical, moral, religious, or ideological foundations.” “Human rights conventions, in short, are not the outcome of articulated philosophical norms, but of political realities.” Philosophical reflection on human rights, like hunting for Lewis Carroll’s imaginary snark, is entirely futile, and possibly even self-defeating.
Human rights are the product, not of exalted philosophical dialogue, but of hard-headed, rambunctious political bargaining on the part of official delegates representing competing state interests. Non-state actors played a role in drafting the formative documents, but it was the accommodations of state representatives, along with final ratification by a majority of states, that constituted the “principal” source of the documents’ legitimacy. Gunn supports these claims by repeated references to the statements of drafters and others about the irrelevance of theory to human rights. “The value of these [inherently flawed] documents may come less from their philosophical coherence, theoretical elegance, or revealed, sacred truths, [and] more from the fact that they exist as a majority compromise of competing positions, interests, and worldviews.”
In Part II, Gunn makes essentially the same points about a comparable document, the American Declaration of Independence. Though he does not develop the role of political bargaining as fully as he does in the case of human rights instruments, he privately reports that, up to a point, he thinks well of Pamela Maier’s attempt to do just that in her book, Sacred Scripture: Making the Declaration of Independence. He appears to accept Maier’s assertion that the Declaration is the product of the “grubby eighteenth-century world of American politics”—an ungainly committee process involving conflicting interests and complicated influences–and is not a pristine treatise spun ex nihilo out of the mind of a single author, Thomas Jefferson.
Gunn reminds us that Jefferson and most of the other members of the Declaration drafting committee were, after all, slaveholders who regarded blacks as inferior, and who considered the equality of “men” to exclude women from voting and the enjoyment of other “unalienable rights.” Earnestly extolling the language of equality, Jefferson and the other drafters were egregiously inconsistent in practicing what they preached.
In response, I do not consider either the Universal Declaration of Human Rights (UDHR) and other human rights documents, or the Declaration of Independence, for that matter, to be philosophical statements, if we mean by that examples of sustained, systematic “analysis of the grounds and concepts expressing fundamental beliefs,” in one way of defining philosophy. I heartily agree they are political documents in Gunn’s and Maier’s sense: the product of collective deliberation and contestation, including some compromise, on the part of delegates representing political interests. (In my treatment of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) in Part III and IV of my essay, I myself provide a good example of “inherent flaws” originally present in an important human rights document that resulted from unresolved political differences between the U.S. and USSR, flaws that only subsequently began to be corrected.) At the same time, we must not exaggerate the differences among members of the UDHR drafting committee. Gunn’s own statistics show that there was, after all, not that much deep disagreement. 18 of 29 articles were adopted without any opposition, and out of some 1,200 total votes, roughly 88% were affirmative and only 3% negative, with 8% abstentions!
But beyond Gunn’s description, it must be added that the documents are also political in perhaps a more important sense than the one Gunn and Maier emphasize. They are designed to exert political impact—to influence the formation and conduct of government. In its opening passages, the Declaration of Independence identifies “the causes” or justifications “for one people to dissolve the political bands which have connected them with another” as the right of resistance to “absolute tyranny” and its “history of repeated injuries and usurpations,” and, in addition, refers to “such principles,” including “certain unalienable rights,” as lie at the “foundation” of a “new government.” Likewise, the UDHR assumes in the Preamble that rebellion against “tyranny and oppression” and the record of “barbarous acts [that] have outraged the conscience of [human]kind” is a justification for the use of defensive force, and goes on to herald the ideal of “human rights protected by the rule of law” as “a common standard of achievement for all peoples and all nations,” meaning a world marked by the universal enjoyment of “freedom of speech and belief, and freedom from fear and want.” It should be underscored that the grounds of the justification and the principles of government are exactly the same in both cases: the venerable moral and legal right of self-defense against arbitrary force.
Although neither the Declaration of Independence nor the UDHR itself represents a sustained and systematic analysis of the concepts and grounds of fundamental beliefs, they do constitute the raw material for such analysis, since they give expression to what was regarded, in fact, as a sufficiently coherent set of “fundamental beliefs” regarding the justifications and principles of a desirable political order.
Gunn supplies quotations from participants that underscore the worth of having provided a sufficiently coherent set of fundamental beliefs about political order. Eleanor Roosevelt described the UDHR as “foremost a declaration of the basic principles to serve as a common standard for all nations” (italics added). Rene Cassin, the influential French delegate, affirmed that “an agreement based on the practical as well as the ideal could be achieved,” even if it was not unanimous (italics added). Emile Saint-Lot, the Haitian delegate, declared that while “not perfect,” the UDHR was “the greatest effort yet made by mankind to give society a new legal and moral foundation” (italics added). By themselves, these are hardly examples of developed philosophical analysis; but they surely invite such analysis.
Gunn himself indulges, toward the end of his essay, in what may fairly be described as the beginnings, at least, of philosophical musing. In speaking of “the value of the declarations,” he opines that they “articulate a shared ideal that transcended the immediate political and social realities that produced them” (italics added). So much for giving the impression that the declarations are “nothing more than” political documents. These higher appeals to conscience and “the better angels of our nature” amount, it may be said, to fundamental beliefs about political order that are precisely the stuff of philosophical reflection.
Gunn even proceeds to initiate such reflection. He asserts that utterances such as “all men are created equal” are “like a machine that would run of itself,” meaning, apparently, that they possess their own conceptual integrity, and, despite frequent and sometimes perverse misinterpretation, apply consistently and coherently across generations to a wide expanse of “political and social realities.” Though he is not very clear why, Gunn considers that by expanding the message of equality to include women, the women’s movement in 1848 “justifiably evoke[d] the sentiment that the 1776 Declaration was flawed and did not live up to its guiding theme.” He similarly commends Abraham Lincoln for alluding in the opening of the Gettysburg Address to “the unfulfilled promise of the Declaration,” namely, the inconsistent application of fundamental beliefs about “a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.” The message of Martin Luther King, Jr. is a final example of the same inconsistency: “the failure of the Declaration to live up to its own stated ideals.”
Considerable room exists here for further sustained and systematic analysis, but there is at least the start of such philosophical analysis of the concepts and grounding of fundamental political beliefs that the Declaration of Independence and the formative human rights documents embody. There is the attempt to introduce coherence and consistency into the application of basic political beliefs to the course of American political history. Philosophy and politics are perhaps not as alien to each other as we were led to believe.
A final note on an important left-over question. Why was there so much opposition on the UDHR drafting committee to addressing the theoretical foundations of human rights? It is not because human rights do not need such grounding, as Gunn alleges. It is because, up to a point, defining and defending the philosophical or theological grounds of fundamental beliefs about human rights or anything else was not the appropriate province of the drafting committee. That subject is properly left up to individual conscience under the provisions of UDHR Article 18. As the committee came to conclude, the very notion of the freedom of conscience, religion, or belief prohibits making any fundamental beliefs official and thus enforceable. Setting theoretical matters aside for purposes of drafting a human rights document is, therefore, perfectly consistent.
I say, up to a point, because there are, as I have indicated, certain intimations in the UDHR to a theoretical grounding of fundamental beliefs about a desirable political order. What is to be said about them? For one thing, the committee could not help itself. The UDHR is in its nature a moral and legal mandate for political renovation. Without citing the justification for renovation—the right of rebellion against tyranny and oppression—the recommended principles lose much of their rhetorical force. For another, even that reference is both elusive, and, finally, only a recommendation, subject to conscience. It clearly invites further theoretical elucidation, and, in the light of Article 18, could not be made official anyway.
Responding to Ping-cheung Lo’s The Right of Self-Defense in Confucianism
P. C. Lo’s highly illuminating discussion of Mencius’ thought is an important contribution to the cross-cultural study of the right of self-defense. In my essay, I refer to a preliminary survey of numerous cultures, religions, and philosophies, conducted by Jan Arno Hessbruegge, in his book, Human Rights and Personal Self-Defense in International Law, that is directly pertinent to Lo’s discussion. Following Hessbruegge, I draw the conclusion that, cross-culturally and over time, there exists widespread acceptance of the right as morally and legally justified, including the four conditions of defensive force. Of special interest is the fact that the right of self-defense applies recurrently at both the personal and the collective level, such that, as I assert in a longer version of my proposal, “the right of self-defense begins to emerge as a compelling paradigm for the general use of force: The only legitimate use, morally and legally, is tout court a defensive one.”
In so concluding, I concede a point also relevant to Lo’s discussion. It is that not all traditions construe self-defense comprehensively in the language of individual rights, as happens in parts of the Western tradition. Still, I go on, it may be possible to draw a valid inference from the evidence that at least the “rudimentary ingredients” of an individual right exist cross-culturally. That is important, if true, because while such findings in no way prove the moral validity of the right of self-defense, they do give reasons for believing in the worldwide comprehensibility and possible appeal of human rights language, strongly oriented, as it is, to the idea of individual rights.
Lo’s description of Mencius’ position on self-defense fits very closely with the above conclusion about the foundational character of the right of self-defense, at least at the collective level. As Lo says in regard to his admirable reconstruction of the grounds of the legitimate use of force by a political ruler, “the four just causes are indeed variations of only one just cause, viz., self-defense against aggression,” whether perpetrated internally or externally (italics added). The account is particularly apposite to our perspective on human rights since Mencius’ vision arises in response to the Warring States Period of the fourth century BCE, governed by tyrants and oppressors whose actions are characterized by the extensive and unrelenting use of arbitrary force. Indeed, it would appear that forswearing such force is an essential index of legitimate rulership. If that requirement is violated, a ruler forfeits authority, and is to be regarded as no better than a common criminal, as in the case of the delinquent King Zhou, who was executed as a “mere fellow.” The exact same attitude is found in premodern Europe.
Lo’s statement that a “revolutionary war must be led by a virtuous leader, meaning the common people do not have the right to initiate a revolt, though they have the right to join one,” is very interesting, and also finds partial resonance in premodern Europe. Luther famously denounced any right the people might claim in rising up in rebellion against unjust rulers,1See David Little, Essays on Religion and Human Rights: Ground To Stand On 213-214 (2015). and for most of his career, Calvin thought just rebellion had to be led by a “lesser magistrate,” though he allowed individual acts of tyrannicide toward the end of his life.2See David Little, Essays on Religion and Human Rights: Ground To Stand On 225, n. 96 (2015). Lo’s explanation in the Confucian case no doubt applies to the thought of the Protestant Reformers, as well: Mencius was well-aware just how precarious the exercise of defensive force could be, and apparently doubted the capacity of people left to themselves to act in accordance with the stringent and demanding conditions required of such conduct. A virtuous ruler, in contrast, might be trusted to live up to those conditions; in fact, an important part of what it means to be a virtuous leader is possessing the capacity to act within the limits of defensive force.
In the development of rights thinking, it is important that this “anti-popular bias,” as we might call it, did not entirely prevail. What happened in the West, rather, was that “the people” came to see themselves as possessing prior rights enabling them to initiate rebellion on their own authority, within the strict conditions of defensive force, of course. It seems clear that the development of an independent “right of the people” to use force in their own defense, invoked in the American Declaration of Independence, for example, is linked closely to the development of a strong belief in individual rights.
In that regard, Lo’s comments as to whether there exists in Mencius’ thought an individual right of self-defense are highly instructive. Mencius is silent about an individual right to defend oneself against wrongful attack, Lo says, because in premodern China personhood is not conceived of in terms of separate individuals; rather, “every person is a relational self,” thought of as a valued member of five cardinal relationships associated with family, friendship, and government. When attacked, an individual is not regarded as defending him/herself as an individual, but as a member one of these relationships. Self-defense is not so much a right as a responsibility. This description would appear to leave out individual “rights talk” altogether.
However, Lo does not leave things there. He sees that, by implication, to claim a responsibility to use lethal force against an arbitrary attack is at the same time to claim for oneself the right to use force defensively since, under recognized circumstances, everyone else, including representatives of the law, is bound to honor such a claim. In other words, individuals, engaging in an act of self-defense, licitly take the law into their own hands as individuals. That is what self-defense means. Accordingly, as Lo admits, “Confucianism can be interpreted to endorse an individual’s right of self-defense.”
This observation supports the conclusion that the “rudimentary ingredients,” at least, of an idea of an individual right of self-defense exist in Mencius’ thought alongside the idea of a collective right that obviously has a firm hold there. As the collective right provides the grounds for a justified defense against an abusive collective relationship between a people and their ruler, so an idea of individual right might come to be interpreted as providing grounds for a justified defense against abusive relationships among individuals, whether between parents or parents and their children, among siblings or friends, or between a person and the ruler. As a logical matter, such a possibility cannot be excluded. ♦
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 on Religion 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.