NOT THE DECLARATION THAT MATTERS:

What Rawls Hath Wrought (John Gray, 12/16/10, National Interest)

[T]HE primacy of this ideal [,human rights,] is very recent. In the late 1970s, clearly a full thirty years after World War II, it all came about quite abruptly. And the ascendancy of rights as we now understand them came as a response, in part, to developments in the academy. As Moyn astutely notes, “In a tiny bibliography on rights composed by political theorists in 1978, next to no authors treated ‘human rights’ as such.” My own experience confirms the accuracy of this observation. When I began teaching political philosophy in Britain in the early seventies, rights theory was only one among several traditions, and by no means the one most closely studied. There were versions of utilitarianism, some scornful of rights (with Jeremy Bentham describing them as “nonsense upon stilts”), others that accepted that rights have important social functions (as in John Stuart Mill), but none of them asserted that rights were fundamental in ethical and political thinking. There were various kinds of historicism—the English thinker Michael Oakeshott’s conservative traditionalism and the American scholar Richard Rorty’s postmodern liberalism, for example—that viewed human values as cultural creations, whose contents varied significantly from society to society. There was British theorist Isaiah Berlin’s value pluralism, which held that while some values are universally human, they conflict with one another in ways that do not always have a single rational solution. There were also varieties of Marxism which understood rights in explicitly historical terms.

In all of these perspectives, human rights were discussed—when they were mentioned at all—as demands made in particular times and places. Some of these demands might be universal in scope—that torture be prohibited everywhere was frequently (though not always) formulated in terms of an all-encompassing necessity, but no one imagined that human rights comprised the only possible universal morality. “A universalism based on international rights,” as Moyn writes, “could count as only one among others in world history.” Until but a few decades ago, anyone who had been well educated understood that most of the varieties of universalism that have ever existed either lacked the very idea of rights (as in Aristotle and Thomas Aquinas) or else invoked them in order to reach authoritarian conclusions (as did Thomas Hobbes).

Undermining the narrative of a virtually inevitable human evolution, the notion that rights are the foundation of society came only with the rise of the Harvard philosopher John Rawls’s vastly influential A Theory of Justice (1971). In the years following, it slowly came to be accepted that human rights were the bottom line in political morality. Early modern political theorists like John Locke may have asserted the importance of rights in ways that helped shape the American Constitution; but rights were dictates of natural law, which had to be obeyed because they emanated from God. Immanuel Kant’s view was essentially the same. The belief that rights are fundamental in political ethics is a late twentieth-century fancy. Interestingly, Rawls did not argue for any sort of global governance—as Moyn points out, Rawls accepted “the plurality of nations.” Also, unlike a later generation of philosophers, Rawls was conversant with other traditions of thinking and took them seriously. Moyn explains, “When John Rawls famously reclaimed individual rights . . . it had no apparent consequences for either the general or the philosophical ascent of human rights (an expression Rawls did not use).” Even so, it was Rawls’s work that was chiefly responsible for the triumph of the narrow type of liberalism that has since dominated Anglo-American political philosophy. The result was to promote a type of liberal legalism in which the rule of law was simply assumed, while politics was virtually ignored.

THE MOST damaging effect of Rawls’s work was the neglect of the state that it produced. The natural rights that were asserted in the early modern period by Hobbes and other thinkers were closely linked with the modern state that was emerging at the time. As Moyn notes, the “freestanding individual of natural rights . . . was explicitly modeled on the assertive new state of early modern international affairs.” Hobbes was insistent that the right to self-preservation can be protected by a state that accepts no limits on its authority to act—otherwise, there is only a “war of all against all” in which everyone must be on guard against everyone else. Other rights theorists such as Locke, more recognizable as liberals in a modern sense, wanted to impose substantive limits on what governments could legitimately do; but they too were clear that rights could only be respected in the context of an effective modern state. Human rights might in some sense exist prior to the state, but without the state they counted for nothing.

Consider interwar Central Europe, an example Moyn does not discuss. Most likely nothing could have prevented the dissolution of the Hapsburg monarchy, but the result of actively promoting its dismemberment, as Woodrow Wilson did, was a “war of all against all” among the fledgling nation-states, in which minorities were the losers (none more so than Jews, who had nowhere to go). This was not an unpredictable development, for as should be clear, human rights and the nation-state are inextricably joined. As Moyn puts it, “The alliance with state and nation was not some accident that tragically befell the rights of man: it was their very essence, for the vast bulk of their history.” The Universal Declaration of Human Rights, which seems to embody the modern-day utopia, encouraged visionaries to look to a time when rights would transcend sovereign states, but still the focus on individual countries remained.

Indeed, for many in the period from the 1950s up to the 1970s, when human rights acquired their present focus on the moral claims of individuals, rights had meaning only in the context of a sovereign state. The full interpretation of equating human rights with a fundamental entitlement to national self-determination—the collective right to rule oneself and not be controlled by others—emerged only with the anticolonial movement.

Except that the antcolonial movement was two hundred years old by the 1970s:

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

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. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Posted by Orrin Judd at December 19, 2010 5:53 AM