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.
We have reached the end of this series on human rights. In this episode, we will look at the effects of universal human rights. The beneficial effects are scarce, and the adverse effects predominate, I conclude.
You saw it coming: I don't see much in the concept. At the end of this article, I will suggest a few ideas to reshape our moral ideals.
The series began by busting the myth surrounding the creation of universal human rights declarations. They were a reflection of the balance of power of the time. There had to be a Bill or rights in American (and French) style. Influences from outside the Western tradition of Christianity and Enlightenment were negligible.
We then looked at two key concepts from the human rights declarations: human dignity and natural rights. Both offer too little guidance. Human dignity is a hollow concept, by which everyone understands something different. Natural law — insofar as it is a real concept — does not provide guidance either. The natural rights that would result from this are an illusion. (Human) nature has patterns that can explain (and sometimes predict) behaviour. But human nature has no norms, let alone rights. Rights are cultural achievements, and each culture therefore has different rights. Rights just because you are human are originally hardly found outside the Western culture.
In the previous episode, we looked at the opposition to the emergence of human rights catalogues in the 17th, 18th and 19th centuries. We owe these catalogues mainly to the higher classes in England and France, who opposed the power of the king, wanted more freedom to act and trade, and better protection of property rights. Serious objections from Thomas Hobbes, Edmund Burke, Jeremy Bentham and Karl Marx, among others, became footnotes. Later came criticism from sociology as well. It remained a rearguard action.
The series can easily be read as the exposure of human rights. I have many objections.
People don't have rights by nature.
An entire episode in this series was about that. The generic granting of rights has serious social adverse effects and is not really sustainable philosophically.
Rights distract from duties
Human rights emphasise the entitlement of the citizen, rather than the citizen’s virtue or duty. It emphasises what society can do for the citizen, rather than the other way around.
Individualisation
Rights encourage individualisation. You have a right, for example, to express your opinion, regardless of the consequences for someone else or for the group. With rights vested, you don't have to take into account what someone else thinks. 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.
Rights juridify society
The very first lecture in my law school took place in a packed lecture hall, somewhere in a polder outside Leyden. A thousand freshmen students listened expectantly to the professor congratulating us. We had chosen a profession with a future! After all, the more lawyers, the more work for lawyers.
Rights juridify society. There is a proliferation of rights, which regularly conflict with each other. The government is being over-burdened, because it has to make it all happen. It squeaks and it creaks.
Human rights aren’t culturally neutral
Human rights are a Western invention that differs from the original views in the rest of the world. The system of human rights was imposed on the world by the West when the other major cultures (Confucian, Buddhist, Hindu and Muslim) had little to say in the United Nations. The system of global rights imposed an alien system on cultures that have a culture based on duty or virtue. It might lead to the displacement of moral systems that have proven their worth for thousands of years.
Human rights can disrupt cultures.
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. It is better to bridge value differences with dialogue than with value systems imposed from above. Rights — if any — should be seen as part of a dynamic and culturally dependent process of social reflection and negotiation. A mild restriction of individual claims in the interest of the community is well defensible, precisely in order to preserve that common culture. Global human rights foster globalism at the expense of the cultures of local communities.
The affluent classes especially benefit from human rights.
The classic rights of liberty mainly play into the hands of the owning classes. The underclass mainly has the illusion of equal rights, but can benefit less from it.
Justice is a process of induction, not deduction
The system of rights is based on deduction, while finding justice should be primarily a process of induction. The consequences of firm, general statements are actually not easy to foresee in advance. It is therefore better to judge each case on its own merits, rather than on general principles cast in concrete.
I previously quoted the British-American poet T.S. Eliot, who predicted that the consequences of an international human rights declaration, according to Eliot, are likely to "turn out to be positively mischievous." Was his prediction prophetic?
I'm going to say the following about that later:
Human rights disrupt international relations and the sovereignty of nations.
Human rights tend to expand into an inextricable tangle.
As human rights expand, they come into conflict with each other more often, and become subject to inflation.
Human rights place trade-offs between rights in the hands of the courts, even if they should not be legal but political considerations.
International human rights play into the hands of the major world powers.
The human rights catalogue will always be an arbitrary list.
Not all immoral behaviour of states is combated with human rights.
Not to mention the limited effectiveness of all these human rights treaties, of the international human rights movement and human rights diplomacy.
Having discussed all these effects below, the question inevitably arises as to whether there is an alternative. With that question I will close this newsletter.
Lockean and Hobbesian states
We discussed earlier how John Locke described how rulers must also respect the natural rights of their inhabitants, while Thomas Hobbes claimed the opposite: the monarch must have free rein. If he goes overboard, the people will revolt, and then — as the Dutch say — the shore will turn the ship, so he will tread with care. The political scientist Kees van der Pijl, who is well versed in Marxism, described how the Anglo-American tradition has been pre-eminently a Lockean tradition since the Glorious Revolution of 1689, in which the observance of fundamental rights is central.
The Lockean Glorious Revolution became a phenomenal success. It freed the country from the old, feudal ties. Property was protected, including by the judiciary, and contracts remained unaffected. Large landowners started to exploit their capital commercially, and the central authority was no longer supreme, creating a civil society, in which churches, guilds, cities, landowners and the bourgeoisie had to get along.
The British model, strongly aware of national identity, was successfully exported through emigration to new territories, primarily in North America. British imperialism gained steam, hand in hand with a tight trade policy, later followed by the Industrial Revolution that conquered the world from England. In 1860, the United Kingdom had only two percent of the world's population, but controlled 40 to 45 percent of global industrial production. Until the twentieth century, London dominated the capital market, which was then smoothly taken over by New York.
The Anglo-American Lockean expansionist drive constantly encountered reluctant competitors with rival systems. The first category of rivals was no match. Van de Pijl calls it proto-states: countries in which the relationship between state and society has not yet crystallised and where society is mainly controlled by force and coercion. Foreign domination, civil war or exploitation by an upper class is common in such states. These were easy prey for the colonial powers.
A trickier type of rival is what Van der Pijl calls Hobbesian states. They are usually centrally governed states with a strong bureaucratic tradition. Power rests with the central authority, and the state exercises its authority right down to the capillaries of society. All talent flows to the central authority, because that is where the power and money can be found. Fundamental rights do not play a significant role: the room for manoeuvre for citizens to choose their own path is very limited. The national interest is paramount. With a joint effort, Hobbesian states can get very far and even establish empires. France from the 17th century to Napoleon is a classic example, but Nazi Germany and the Soviet Union also qualified as Hobbesian. Today, China and Russia are the most powerful Hobbesian states.
Lockean and Hobbesian states easily get into each other's way. The transnational Lockean networks (multinationals, trade, capital flows, but also media and entertainment, for example) do not see national borders as a serious barrier. But Hobbesian states perceive those networks as a threat to national sovereignty, as underground rampaging roots that undermine Hobbesian foundations. The individual concept of sovereignty of the Lockean states clashes with the political concept of sovereignty of the Hobbesian states.
Lockean states expand by nature, but if Hobbesian states want to expand, they soon come into conflict with their neighbours. The suction of central government can become paralysing in Hobbesian states, through the exhaustion of talent and rigidity through bureaucratisation. Geographical expansion is then a method of supplying the system with ‘new blood'. Also, a desire to give one's own ethnicity a homeland, or a romantic yearning to restore a great empire of yesteryear to its former glory are reflexes that you often find in Hobbesian states.
The Lockean and Hobbesian methods of expansion are mutually incompatible, frequently culminating in wars, which the Lockean states usually used to win. Van der Pijl explains that because the Lockean system is the most advanced in the accumulation of capital.
The international establishment of human rights as a guiding principle in world politics was a victory for the Lockean states, which made good use of the momentum after the Second World War. Hobbesian states are trailing in advance when they have to explain that the national interest takes precedence over fundamental rights. But the unstoppable rise of a country like China shows that the battle is far from over.
Invasive human rights
The system of human rights is a bit like the universe: it is infinitely large, and it expands in all directions.
The U.S. Constitution began in 1776 with three fundamental rights, now there are hundreds worldwide. For pressure groups, the ultimate goal is to see their interest enshrined in a fundamental right. In 2022, the United Nations General Assembly approved the establishment of the right to a clean, healthy and sustainable environment. In 2006, there was a UN Convention on equal treatment for people with disabilities.
The courts also play a role. Situations that are not foreseen by the legislators are often overcome by case law that extensively interprets fundamental rights or creates new sub-rights.
Another form of expansion is about the applicability between citizens. Normally, citizens can invoke fundamental rights against the government. But increasingly, citizens can now also invoke fundamental rights against each other. Non-discrimination is a well-known example, but so is the ban on hate speech. In 2011, the Council of Europe agreed that women have the right to protection from domestic violence.
Rights often have unintended effects
A problem with fundamental rights is that the norms are by definition abstract. Article 2 of the European Convention on Human Rights contains a right to life. Quite obvious, you might say, but does that also mean that abortion should be banned? Or that euthanasia is illegal, that the government should not restrict health care, that human embryos should not be used for stem cell treatment? Human rights are not defined in such detail, so the legislature has to fill that in and soon the courts are involved. For example if religious groups oppose liberal abortion legislation. Then it turns out that different citizens have very different intentions with the premise that the state must protect the lives of its citizens.
Is the judge the most appropriate person to determine the extent of the right to life? It would be obvious for the judge to say, in such cases: dear citizens, I only test on the principles insofar as the legislators agreed on the scope when laying them down. Anyone who wants to draw more far-reaching conclusions from the fundamental right should turn to the legislator. But judges are often not that reluctant.
Rights are increasingly in conflict with each other
The more fundamental rights, the easier they can come into conflict with each other. No one knows exactly how to determine the priority if that happens. The more rights there are, the easier it is for them to clash with each other. A few examples. The UN Convention on the Elimination of All Forms of Racial Discrimination requires governments to criminalise hate speech. You don't have to be a law professor to suspect that that provision will very quickly conflict with the right to free speech.
Anyone who wants to commit euthanasia can invoke the fundamental right to self-determination. Anyone who wants to block that can invoke the government's duty to protect the right to life.
There is no consensus on how to deal with conflicting rights. Compare it to a card game where everyone has trump cards in their hands. Should one trump card be higher in rank than the other? How judges should deal with conflicting fundamental rights is up to them: there are hardly any rules on this. In practice, they generally try to avoid having to apply a weighting, and in extreme cases, both parties usually partly get their way.
Inflation of rights
A significant disadvantage of this proliferation of fundamental rights is that it leads to 'fundamental rights inflation'. If each right can be parried with another right, this ultimately means that no right can be the deciding factor.
When international law recognises hundreds of human rights, the potential for abuse by powerful states is ominous. A proper doctrine of human rights must constrain its own nature, or risk being appropriated as a justification for powerful states imposing their will on weaker ones. Simply because something is morally wrong, or an injustice, should not mean that it is a human rights violation.
— Dominique Clément, Human rights or social justice? The problem of rights inflation, The International Journal of Human Rights (2017)
We shouldn't let judges make political decisions
Furthermore, of course, a disadvantage is that judges have to weigh in issues that the legislature should have dealt with. Many political decisions are made by weighing up different ideological principles that we often recognise in formulated rights. Some parties are more committed to classic freedom rights, and other parties prefer material equality and protection of the weak. If a multitude of ideological principles are also established as a fundamental right that can conflict with each other, you let the judge make decisions in conflicts that are actually ideological in nature.
Hypocrisy
Human rights play into the hands of the major powers
The enforcement of international law is a complex matter. Even if the rules are adopted as binding, we are still dealing with sovereign states. They can shrug when they are accused of violating international law. Some countries get away with violations more easily than others. For regimes with evil intentions, it is necessary to ensure that one of the permanent members of the Security Council likes them. Or to be one itself, of course.
International intervention requires an agreement in the Security Council, and any of the five permanent members of the Security Council can block a vetoed intervention. For example, the Kim criminal family of North Korea, with the support of China, has been getting away with heinous crimes for generations. Saudi Arabia's involvement in the civil war in Yemen and the slaughtering of a journalist are skilfully swept under the carpet thanks to close relations with the United States. With the support of the United States, Israel has been able to flout numerous UN resolutions for years.
Even the enforcement of rulings of the International Court of Justice can be blocked by the permanent members, as happened when the United States was convicted in 1986 of unlawful intervention and human rights violations in Nicaragua.
The bad luck of Saddam Hussain of Iraq and Moammar al-Qadhafi of Libya was that they had no powerful friends left. The cynical effect is that human rights thus play into the hands of the superpowers: as a violent regime, you will have to be friends with one of the five in order to get away with your human rights violations.
The major powers deal with human rights hypocritically
The United States has signed all treaties against torture, but is regularly accused of torture with their knowledge, usually overseas in so-called black sites, by mercenaries or by friendly security services.
France also has a right of veto in the Security Council. The country has been playing a cynical game in its former African colonies for decades, including military support for criminal politicians, arms deliveries to warring parties, and assassinations of heads of state and opposition leaders.
Western human rights violations remain under the radar.
Universal human rights are hypocritical. Every year, millions of boys a few weeks old have a piece of skin cut off from the penis (often without anaesthesia), without medical necessity, and with a risk of medical complications. Why is circumcision not seen as mutilation?
The immensely corrupt General Suharto was president of Indonesia from 1968 to 1998. He was responsible for ethnic cleansing and mass killings during his struggle with his predecessor Sukarno and has about a million deaths on his conscience. However, he was not put in the way thanks to his country's large oil production, his political loyalty to the United States, not to mention the billions he spent on American weaponry.
Speaking of corruption, why are we so adamant about human rights violations and even set up tribunals for them, but did the world look the other way when corrupt leaders like the Marcos family of the Philippines, Mobutu of Zaire and Ben Ali of Tunisia looked the other way?
Human rights are paradoxical
Also on a more abstract level, the global imposition of our tolerance standards is contradictory. The fact that one country gets away with human rights violations more easily than another is in itself a violation of the principle of equality that forms the basis of many human rights provisions.
Moreover, speaking of toleration, part of toleration is also having respect for other cultures, no matter how much their values differ from your own. Global enforcement of tolerance standards is inherently intolerant.
The effectiveness of human rights
That may all be, I hear you think, but surely it is fine that rules have been written down that at least make it clear what is wrong according to the world order? Surely it will have a beneficial effect?
But that has been empirically researched, and the beneficial effect remains to be seen. The impact of all these human rights treaties is small, and often even negative. Let me explain.
Respectable democratic states are usually conscientious with regard to the human rights treaties that we have entered into. That is not so strange, because in general it is our own standards that are codified. Insofar as adjustments need to be made, they are usually subtle or administrative in nature. The effect is beneficial but small.
It is different with states that are less concerned about their human rights. They usually agree under pressure, there is hardly any monitoring of compliance, and hardly any attention is paid to it by the country. Research regularly shows that the human rights situation in countries that, under pressure, agree to the recording of certain human rights has actually deteriorated:
The benefits of making a strong expression of adherence to the treaty norms can be substantial; the government of a country that is under pressure to adhere to international norms can use membership in the relevant treaty regime as evidence of its commitment to abide by the norms the treaty embodies. Because monitoring is imperfect and enforcement often minimal, any gap between expression and action is unlikely to be made public. (…) Countries that ratify enjoy the benefits — including, perhaps, reduced pressure for practice improvements — without having to make significant efforts.
— Oona Hathaway, Do human rights treaties make a difference? Yale Law Review (2002)
Campaigns against female circumcision or for LGBT rights in Africa have hardly any effect. In fact, tolerance for homosexuality in Africa has actually declined in recent decades.
International pressure can sometimes be effective, provided the government is sensitive, especially when there are benefits to be gained. But the progress made can just as easily be undone if a new, populist leader emerges who doesn’t care about international pressure.
And if the human rights situation in a country improves, what is the reason for it? The fixing of rights, the lip service of the government, or the interference of human rights defenders will rarely be decisive. Urbanisation, better education and access to information, and a higher standard of living can have much more effect than the paper reality of human rights or external pressures.
Outside pressure can even be counterproductive. A self-conscious countermovement is on the move. For example, Poland's ruling Law and Justice Party (PIS) opposes:
ideas, which in the name of absolutising falsely interpreted human rights and civil freedoms, attack the inherited values, structures and institutions, promoting instead moral relativism and a lifestyle revolution directed against the foundations of our civilisation. For that reason a new, very serious challenge for the political elites emerges today: the defence of religion, tradition, patriotism and family.
— Prawo i Sprawiedliwość, Polska katolicka w chrześcijańskiej Europie (2005)
Human Rights Watch employees are actively opposed in countries such as Cuba, Egypt, Israel, and the United Arab Emirates. Amnesty International has had to close its offices in India and Russia. The British prime minister was dismissed as a neocolonial in Africa in 2011 when he raised the issue of human rights.
The human rights movement is also under pressure on the activist side. Social justice warriors struggle for the emancipation of disadvantaged groups. They think human rights are weak. On the other hand, in socially conservative movements, both forms of activism are lumped together as undermining traditional values.
Down with human rights?
The conclusion is obvious. Universal human rights are a dead end. Sovereign countries that agree with each other can easily jointly decide to include their moral norms in a treaty. But at the same time, they must realise that the creation of such a system is also the subject of politics: interests are exchanged, pressure is exerted. Do you have to want to: make such fundamental issues play into the balance of power at the time?
Does that mean that we should also abandon the underlying ideals? There are good reasons not to. The ideals of human rights are usually good ideals. Torture is evil. Everyone should be able to act according to their own sexual preference. It's idiotic to punish people without a fair trial. Governments should not discriminate between people based on nonsensical prejudices. Etcetera.
But two things really need to change:
1. From rights to obligations
The vast majority of generic regulations to which governments in particular are bound are formulated in the form of rights to which citizens are entitled. I have already explained what the disadvantages are. Without having to detract from the content, these regulations can easily be formulated as duties. A duty to equal treatment, rather than a right to equal treatment. A duty to provide clean drinking water to all residents, rather than a right to it. And so on.
2. Get rid of the universal claim
Universal human rights are grotesque nonsense. By nature we have no rights, and rights are never universal by nature. Rights are cultural achievements. It is fine if a country, or a region for all I care, such as Europe, wants to make joint agreements. Europe as a community of values is actually quite a good idea. But such agreements on a global scale do not do justice to our cultural diversity, and undermine cultures that have proven their worth for millennia.
Don't get me wrong: there is nothing wrong with dialogue between cultures, and between those in power. Wonderful if regimes can be convinced of the futility of torture or of the benefits of educated women. But no longer on the basis of inequality and blunt power politics, as is often the case now.
For further reading
Kees van der Pijl, Transnational classes and international relations (1998)
Oona Hathaway, Do human rights treaties make a difference?, Yale Law Review (2002)
Alain de Benoist, Au-delà des droits de l'homme pour défendre les libertés (2004)
Eva Brems, Conflicting human rights: an exploration in the context of the right to a fair trial in the European Convention for the Protection of Human Rights and Fundamental Freedoms, Human Rights Quarterly (2005)
Thomas Risse et al. (red.), The persistent power of human rights (2013)
Stephen Hopgood, The endtimes of human rights (2013)
Doutje Lettinga, Lars van Troost (red.), Debating the endtimes of human rights: activism and institutions in a neo-Westphalian world, Amnesty International Netherlands (2014)
Dominique Clément, Human rights or social justice? The problem of rights inflation, The International Journal of Human Rights (2017)
To conclude
This was the sixth and last 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 start a new series, about toleration and morality.