Against human rights
Anyone sceptical about human rights doesn't make himself popular. But for centuries, criticism of human rights has been harsh. On criticism from Hobbes, Bentham, Marx, communitarians and Confucianists
In the previous episode, I argued that we weren’t born with rights. There are no natural rights. Rights are a social construct. Natural law is a real concept, which we can connect to our moral intuitions, but we cannot derive natural rights from it.
The fact that we nevertheless have a human rights tradition is the result of a development since the Greeks and the Romans, which gained momentum with the emancipation of the bourgeoisie since the 12th century. The breakthrough came in the 17th century, with the English philosopher and politician John Locke, who stood up for the interests of the wealthy landowners in parliament. They had no desire for higher taxes, and managed to force concessions from the king.
We take a run-in with Thomas Hobbes, who — unlike Locke — saw no benefit in the inclusion of rights that citizens can invoke against the monarch. After examining Locke's theory, a whole procession of human rights concerns is raised. Libertarians, conservatives, Marxists, communitarians and Confucianists: all critical of the existence of human rights.
Thomas Hobbes
His name has been mentioned already: Thomas Hobbes (1588-1697). Two events had a major influence on the thinking of this English pastor's son: the English Civil War (1639-1651) and his introduction to physics.
In the English Civil War, King Charles I got into trouble with almost everyone: the Scots and Irish had no desire for English dominance, the Puritan Protestants thought the king was too kind to the Catholics, and parliament (made up of taxpaying, wealthy landowners) had no desire for higher taxes. The war chest was empty. The chaos in the country annoyed the royalist Hobbes.
As a physicist, Hobbes was concerned with the 'natural state'. The traditional view came from Aristotle: all movement has a cause. But Hobbes found that movement is the natural state of all objects.
In his philosophical work, Hobbes was also looking for the natural state of man and society. Like all objects, man is in constant motion. The freedom to move, or the movement itself, is a law of nature. Fear and desire drive man forward in search of his own survival. Because every person is constantly in motion, there are constant clashes with others, driven by fear and desire. Because we are unable to guess the intentions of others, we must be constantly on guard. Sometimes even offence is the best defence. For the sake of personal preservation, we want to exert coercion on our environment.
From that view of the clashing human being, how did Hobbes view rights? Hobbes made a distinction between a natural right and the right to realise it. Natural law is actually a description of the natural course of things. Thus, every human being has a life. That observation of a natural fact could be called a right, but really he just meant natural law.
But just because a person is alive doesn't mean he has the right to life. Consider, for example, a man-to-man fight: who has the right to life? People can move freely, and can exert coercion on others. That could be called a right, but of course its realisation also depends on the circumstances. After all, the people he meets have the same right.
The state of men without civil society, which we may properly call the state of nature, is nothing but a mere war of all against all; and in that war all men have equal right unto all things. As soon as they arrive to understand this hateful condition, they desire — even nature itself compelling them — to be freed from this misery.
— Thomas Hobbes, De cive (1642)
And then the sovereign comes into the picture. Only by leaving control to the sovereign are people able to enforce their rights. But in a civil society, we speak of civil or political rights, not natural rights. Civil or political rights are not enforceable, because the sovereign determines the priority. But that doesn't mean that the sovereign can just screw around at will. Because his own safety is at risk if he does not handle the distribution of rights responsibly. The citizens will then try to exercise their natural rights instead of their civil rights, and that may cost the sovereign his head. As would indeed happen later with Charles I, who ended up on the scaffold.
According to Hobbes, we do have rights, but they are not enforceable. That was against the sore leg of the landowners who populated the House of Commons and who were in conflict with the king. Due to the fighting against the Irish and the Scots, the king was constantly short of cash and knocked on parliament's door for higher taxes. Parliament had had enough of that. Hobbes was unpopular there with his assertion that no citizen has enforceable rights against the monarch. He had to go into exile for ten years and was only allowed to return on condition that he would no longer speak out on political issues.
John Locke
The views of John Locke (1632-1704) were more popular among the landowners. Instead of Hobbes's grim conception of man, Locke argued that man is also capable of good. By using his mind, man is able to reason God's will, in the form of the laws of nature. The state of nature, i.e. the situation in which people live together without central authority, is not necessarily a state of war of everyone against everyone. In fact, a peaceful society of mutual trust must be possible even without central authority, if natural law is respected. You only get a state of war when violence is used without justice. This state of war can arise both in the state of nature and in a society with central authority.
In the state of nature, natural law applies. Thus, you have the right to defend yourself, and to retaliate against injustices done to you. And to defend your property.
Property plays a central role in Locke's theory. You are the property of God, for he created you. All property is created by labour. Labour of God, or labour of men, who in turn are owned by God. That is why you must defend yourself and your property: it is the defence of the work of God.
So you have ownership. An apple, a house, a knife. How were these goods obtained? By mixing labour with natural resources, especially with soil. You picked the apple from the apple tree that grows in the ground. You built your house with stones. You got the knife from your father, who made it from iron ore that was mined from the ground. So everything ultimately comes from the layers of the Earth, the land.
But who is the owner of the land? God has given the Earth to men. Does this mean that humanity jointly owns that land? Or is an individual allowed to claim a piece of land for himself, allowing him to call the things he gets from that land his own? Locke's argument is practical: only if you own it will you cultivate that land. Why build a field if you can't be sure you're the only one who has access to the harvest? So you can consider a piece of land as your property.
You not only own things, but also your own body. Since your life is your property, you are allowed to defend your life. With your property you can do whatever you want. Since you also own your body and your mind, you also have the freedom to live as you wish. But with due observance of natural law, of course.
What is then the role of the state? Locke distanced himself from Hobbes' idea that the sovereign must be omnipotent. If you have to surrender all your freedom to the sovereign, who can freely dispose of it, you have effectively become a slave, Locke thought.
He opposed the prevailing view that hierarchy, headed by the monarch, is part of natural law. For Locke, the state was not a God-given and man-made institution, but it comes about because people seek the greatest possible safety and security of existence.
The right of a sovereign to exist is neither a contractual submission to absolute authority, but an agreement freely concluded by citizens whereby one agrees to transfer part of his natural rights to the government. If the sovereign violates that agreement, citizens should have the opportunity to turn to an independent third party who has the authority to intervene. If the sovereign violates the trust that the citizens have given him, he should be able to be called off.
The sovereign's job is to uphold natural law principles. The monarch must ensure that property is protected and that infringements of property are retaliated. But that power is not unlimited. The state has a monopoly on punishment, but not on the protection of property and life. For the protection of property, the power is subsidiary: the state may only act if the citizen is unable to protect himself. And the sovereign is bound by legislation. But in case of emergency, the sovereign may act in violation of that law if it is in the interest of society and immediate action is required.
Locke's influence
Locke's influence was great. A direct line can be drawn between Locke's theory of human rights and the creation of the Bill of Rights of 1689, in which the British Parliament managed to bind the newly recruited new monarch William III of Orange to the rules of the game. The document mainly contained constitutional rules between parliament and king; There were hardly any fundamental rights for citizens, with the exception of the provision that disproportionate bail and fines were not allowed and that cruel penalties could no longer be imposed. But the beginning was there: the power of the monarch was no longer unlimited. Subjects had become empowered citizens. But it would be another century before citizens began to enforce Locke's ideas.
In contrast to Hobbes' crystal-clear theory, Locke's view comes across as contrived and less strongly substantiated, and his theory has many inconsistencies and leaves questions open.
In our modern view, the idea of an absolute ruler seems strange, and Hobbes' dark view of the natural state of humanity was also very pessimistic. But when you abstract and nuance those two elements, the core of Hobbes' theory still stands, although of course you don't have to agree with it.
Locke was clever enough to formulate his ideas in such a way that the most powerful groups of his time, the large landowners, could work with his theory. They were given a theoretical basis for the inviolability of their possessions and for a drastic curtailment of the king's power.
The seeds of our current conception of fundamental rights lay mainly in the political interests of an assertive wealthy elite. The same thing happened in the French Revolution, as we shall see later. Freedom and protection of property are first and foremost in the interests of citizens with property and with the means to make the most of their freedom: they benefit the most.
Codification
In 1776, the United States seceded from the United Kingdom. This was done with a declaration of independence in which Locke's hand is clearly recognisable. His conception of the right to life, liberty and property would be incorporated into the Constitution:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.-
— American Declaration of Independence, 1776
The attentive reader sees that the right to property has been replaced by the right to pursue happiness, whatever that may mean. The right to property was probably omitted because the compilers Thomas Jefferson and Benjamin Franklin wanted to prevent citizens from invoking it in order not to have to pay taxes. Moreover, land ownership was hardly a scarce commodity there at that time: all you had to do was move west and drive the original population off the land.
The First Amendment to the United States Constitution was perhaps even more important for the creation of the list of human rights that are still common today. This amendment was drafted in 1789, and compiled and ratified two years later and is known to this day as the Bill of Rights. It contained the following fundamental rights, actually an elaboration of Locke's principle of freedom: freedom of religion, speech, press, and assembly.
At about the same time, in 1789, France adopted the Declaration of the Rights of Man and of the Citizen. It contained an even more extensive list of human rights. In summary, people are born free and with equal rights and remain so. People have natural and inalienable rights: freedom, property, security and resistance to oppression. The freedom is to be able to do anything that does not harm another. No one should be harassed because of his views, including religious ones, as long as their expression does not disturb public order. Every citizen can speak, write and print freely (unless he abuses this freedom). No one can be deprived of his property without legal basis and compensation. The declaration also listed a number of constitutional and rule of law principles.
In 1791, Olympe de Gouges proposed to add equal treatment of men and women to the list of fundamental rights. The proposal cost her the head: she ended up on the scaffold.
With the French revolution, the fence was off. Like-minded declarations were adopted throughout Europe. But that rarely went without a fight. Monarchs who were firmly in the saddle preferred not to be constrained by codified toleration standards. Only when the royal authority was weak, citizens were able to reach concessions in the form of freedom and equality rights or democratic participation.
The list of rights in the French Déclaration still forms the basis of the fundamental rights in force in many countries. How did this French list come about?
As with the processing of Locke's life, liberty, and property, the common people were not at the table. The Assemblée Nationale that established the Déclaration consisted of the three estates: nobility, clergy and bourgeoisie. The bourgeoisie held about half of the seats and, under the pressure of the revolution, managed to push through the Déclaration with the support of a handful of progressive clergy and nobles.
The deputies of the bourgeoisie were elected according to a district system. There was no universal suffrage: only tax-paying landowners had the right to vote. The deputies of the bourgeoisie generally consisted of the enlightened, urban bourgeoisie: about half were lawyers; The other half consisted of their customers: wealthy merchants, industrialists and large landowners. Protection of liberty and property were in their interest; redistribution of property and protection of the weak were not.
The effect of the creation of civil rights on our thinking about toleration was great. Those who have a right to freedoms have a certain right to tolerance vis-à-vis the state.
British arguments against fundamental rights
The enshrinement of rights in constitutions was certainly not without a struggle. Kings still resisted fiercely in the 19th century. But philosophers in the rearguard were also by no means all eager.
The best-known classic opponents of the granting of fundamental rights were the utilitarian Jeremy Bentham, the conservative Edmund Burke and the — er — Marxist Karl Marx.
To be clear, we are talking about human rights here, not political rights. This second category also appears in the well-known declarations of fundamental rights (the Constitution of the United States, the French Déclaration, the UN Treaties), but has the purpose of marking the political position of the citizen: the right to vote, the right to a nationality, etc. Those are not of my main concern here, they are only mentioned in passing. After all, the theme is toleration, which is mainly related to freedom and equality rights.
The British critique of human rights by the contemporaries Bentham and Burke overlaps somewhat. The occasion was in particular the French Revolution, and the resulting Déclaration. Since time immemorial, British law has had a different legal system than the system on continental Europe: common law. Legislation plays a modest role in this system. What counts as law is mainly shaped by previous rulings by judges.
The Continental system is mainly derived from Roman and Napoleonic law, in which judges mainly apply legislation that politicians have established. In common law, custom applies above all. Common law is therefore part of a tradition of centuries of casuistry, along lines of gradualism, rather than parliamentary majority decisions that can completely change course. In Britain, there was a lot of frowning for that reason alone when the French parliament declared a whole catalogue of rights fundamental.
Bentham and Burke's criticism was that you should not apply a priori deduction. What does that mean? Induction is aiming to formulate general rules based on concrete cases. Common law is an inductive system: when judges repeatedly rule in different cases that — for example — an oral commitment must be fulfilled, then on the basis of induction, oral commitments are in principle binding. Unless there is ever going to be a case where an exception has to be made to that principle.
Deduction is the opposite: you first establish a general rule, and then you apply it to all common cases. The legislature therefore first establishes that oral agreements are binding, and then judges must apply that standard to all cases.
A priori is an extension. A priori knowledge is knowledge that you gain without initially taking underlying experiences as a basis.
Burke and Bentham found the establishment of general fundamental rights that were plucked out of the air, as it were, life-threatening. Rights were derived from a theoretical human and worldview, or reason, without being guided by underlying experiences. What if you were wrong? Then you would have formulated a comprehensive system of rules based on a false premise. That's rigged for disaster. You have to be much more cautious, thought the conservative Burke.
It is better to base general principles of public administration on a rational approach to the common good, Bentham thought. He called natural rights simple nonsense; he called natural and inviolable rights "rhetorical nonsense — nonsense on stilts"; he predicted horrific conflicts in France (and he was right).
Marxist criticism
Karl Marx sang a different tune, but his criticism of fundamental rights was far from gentle. And even if you do not think that the proletarians of all countries should unite, his criticism makes sense. The core of his criticism is that human rights atomise society: if you let your relationship to society be defined by what rights you can assert in relation to society, you do not create a society, but a bunch of egoists. If the limit of everyone's freedom lies in harm to others, everyone comes to see the other as the one who stands in the way of their freedom.
And even when Marx expressed himself more recognisably Marxist, he certainly has a point. If you start from human rights, you play into the hands of the rich. They are the ones who have the most to gain from human rights, and they have an interest in portraying those rights as a universal reflection of human nature. Those who have access to capital use their right to freedom to exploit the poor wretches, and get away with it.
The bourgeois who is free, is above all free from social restrictions, free from responsibility and free from concern for the well-being of fellow human beings. The rich benefit from the right to freedom, property, security. The underclass may have equal rights, but at the same time it eats the crumbs falling from the table.
Those who have capital will defend themselves by saying that the underclass has just as many equal opportunities. But that is precisely what is the insidious thing about human rights: formally you are equal, but what good is it if you were born a pauper?
The communitarians
And then there are the communitarians, who, like Marx, oppose the individualism of human rights. The sociologists Emile Durkheim and Ferdinand Tönnies described around the end of the 19th century how communities are essential for the flourishing of the individual. Conformist community pressure may undermine the development and expression of the individual, but this only happens in extreme cases. Well-functioning communities need a common culture. When there is mild pressure, from the community itself and preferably not from above, the individual members of the community become more reasonable and productive. Communitarians like to see social dialogues to bridge differences in values. Global human rights encourage atomisation of the individual and globalism, and communitarians find that worrisome. According to the philosopher Michael Sandel, a mild restriction of individual rights in the interest of the community is well defensible, precisely in order to maintain this common culture.
Communitarians like Charles Taylor and Michael Walzer think we should look at the specific social context in which real people live their lives, and the meaning of justice in different cultures. According to the communitarians, major theories wrongly assume that all societies must fit within a standardised system of rights. We must see rights as part of a dynamic and culturally dependent process of social reflection and negotiation.
Other critics of rights talk believe that rights are given far too much weight, leading to a formalistic approach to a society that is in reality much more organic. Anyone who places a strong emphasis on rights, cuts off a discussion, sets up incredibly complex constructions to reconcile rights and interests, makes people more individualistic and selfish than necessary, and ensures that lawyers and judges have to be called upon unnecessarily often. We should talk a little more about virtues and a little less about rights, they argue.
Asian criticism
There is also a specifically Asian communitarian critique of human rights. To understand it properly, we have to take a step back, to look at our own Western morality with the eyes of an outsider.
Under the influence of Christianity, Enlightenment and Romanticism, specifically Western moral ideals are:
The dogma of free will.
Human equality.
The Western romantic idea of the authentic human, who is true to himself.
Western morality cultivates duality: on the one hand, an inner life, with spontaneity, uniqueness, sincere feelings, and privacy.
On the other hand, there is the public, social man whose behaviour is determined by shielding from inner life. Our behaviour and the moral register that appeals to us, is determined by the role we play and the context in which we operate. During a job interview you will not be asked about your sexual orientation or your desire to have children. There is voting secrecy, and the religion you adhere to is of no concern to anyone (unless you have a mission). We usually only talk with intimates about our family and our emotional life.
We respect each other's rights: our right ends where the other's begins. When it comes to duties, they are primarily negative: we have a duty to respect other people's rights: do not steal, do not cheat, do not discriminate, etc.
Positive duties hardly exist, apart from caring for our immature children. A selfless act of altruism is not a moral duty, but a virtue. As a result, we are constantly in a tension between morality, self-interest, the role and context in which we operate, the rights we claim and respect and the respect that altruism earns us.
The Dutch academic Karel van het Reve once described (I can't find it anymore, so I have to take it from memory) how his natural bonhomie and complacency came under pressure when he had to represent the interests of the department as a professor. Because of the role he played, he suddenly had to appeal to a different moral register: the genial, empathetic person had to switch to assertiveness and greed because of the group interest.
In Eastern cultures, especially those influenced by Confucianism and Hinduism, the individual has a very different attitude towards society. You often read the comparison with an organism, or with a body. People relate to communities or family relationships like organs or limbs relate to the body. Privacy is antisocial. The ties with the family are almost unbreakable. The romantic idea of the authentic, unique individual is Western decadence. There is a much weaker distinction between negative and positive duties. And that people naturally have rights without duties is unimaginable.
Confucianism, which has led the way in many East Asian countries, including China in the first place, has traditionally had no rights. In fact, attributing individual rights to people because they are human undermines the Confucian idea.
Confucianism is a virtue ethical tradition, aimed primarily at forming excellent people in a well-functioning society, organised primarily on the basis of familial ties, positions and duties. Their duties depend on the role and position they take towards the other: father and son, husband and wife, older and younger brother, ruler and subject, and friends among themselves. With each role comes expectations and obligations. It would not occur to a Confucian that a subject has rights over the ruler. A good ruler organises contradiction. As a subject, it is certainly not forbidden to make constructive criticism, but there is a good chance that if the ruler does not like what you say, you will fall into disgrace.
The existence of fundamental rights is also questionable in Buddhism, Judaism and Islam. Judaism is a doctrine of duty: a good Jew obeys the law and that's it.
In Islam, the mainstream view is that while human rights are largely compatible with Islam, it remains a Western invention. There is formally no coercion in religion, there is free will, but at the same time a good ruler must promote the good and fight the bad. The good and the bad are determined by Islamic law. That people have innate rights is not part of the doctrine.
The closest thing to fundamental rights is Buddhism. But a Buddhist will not easily force anything on you. There are few precepts and those who do not follow them must know for themselves: everyone must follow their own conscience. The consequences are at your own expense.
The Dalai Lama actively encourages respect for international human rights. At the same time, it is alien to Buddhism to be able to invoke rights. Just like Confucianism, Buddhism is mainly a virtue doctrine: it is to your credit if you respect people for who they are, but apart from an appeal to reason and clemency, claims from the subject are not self-evident.
The conclusion is inescapable: the existence of fundamental rights is an idea with roots in Christianity, the Enlightenment and Romanticism. They have exerted a great deal of influence worldwide, but in most non-Western cultures the existence of fundamental rights remains a controversial and exotic idea.
Want to read more?
— Thomas Hobbes, The Cive (1642)
— Thomas Hobbes, Leviathan (1651)
— John Locke, Two treatises of government (1690)
— Olympe de Gouges, Déclaration des droits de la femme et de la citoyenne (1791)
— Georges Lefebvre, Quatre-vingt-neuf (1939)
— Eric Hobsbawm, The age of revolution 1789-1848 (1962)
— Jeremy Waldron, Nonsense upon stilts (1987)
— Richard Tuck, Philosophy and government 1572-1651 (1993)
— Gary B. Herbert, A philosophical history of rights (2003)
— Tom Campbell, Rights: a critical introduction (2006)
— Thomas Cushman (ed.), Handbook of human rights (2012):
Amitai Etzioni, A communitarian critique of human rights
Justin Tiwald, Confucianism and human rights
— Kwang-Kuo Hwang, Morality 'East' and 'West': Cultural Concerns, in: James D. Wright (ed.), International encyclopedia of the social & behavioral sciences (2015)
— David Wong, Chinese ethics, Stanford Encyclopedia of Philosophy (2021)
To conclude
This is the fifth episode on human rights and toleration. The series consists of the following episodes:
Was drawing up human rights really such a good idea?
Anyone who questions the existence of universal human rights can count on outrage. Yet that's exactly what I'm going to do here.Our universal human rights are dated and not universal
About the creation of the Universal Declaration of Human Rights. Why large parts of the world can actually shrug their shoulders about human rights.How to lose your dignity
Out of human dignity, everyone can make their own sense. This is convenient when looking for universal human rights. About the conflicting meanings of human dignity, and why we aren't born with it.No, by nature, you have no rights to anything
Why we aren't born with rights. Rights as a social construction. About natural law versus natural rights. About innate moral modules and our ingrained sense of justice.Against human rights
Anyone who is sceptical about human rights does not make himself popular. But since the 17th century, criticism of human rights has not been soft. On criticism from Hobbes, Bentham, Marx, the communitarians and the Confucianists.Down with human rights!
The negative effects of universal human rights predominate. We have to get rid of them. There are alternatives. We can move from rights to duties. From a legal to a moral dialogue.
Next week we will conclude the series on human rights with an article on the effects of human rights. After that, I’ll start a new series, about toleration and morality.