Steve Watson

How we got Rights

In a review (“Utopia Lost” Democracy #19, 2011) of The Last Utopia: Human Rights in History by Samuel Moyn (Harvard University Press, 2010) Yehudah Mirsky begins by noting that “many claim that these rights have a long ancestry in the history of human thought” and that Moyn’s preliminary historical survey shows or reminds us that

rights in the modern sense–individual entitlements to civic and political freedom, expression, and material well-being–emerged of a piece with the modern nation-state. He notes that after a seeming eighteenth-century apotheosis, rights talk as such declined in the nineteenth century, except among laissez-faire capitalists who used it to ward off regulation.

How then, they wonder, have ‘rights’ become the lingua franca of ethical discourse in the modern West and in the international institutions that it has created? And the answer they both accept is that human rights are a form of utopianism adopted when other forms have been thoroughly discredited. The bulk of the review (and apparently of the book) are then devoted to tracing the development of the human rights industry in the latter years of the XX^th Century, with particular attention being paid to the contingencies of history that contributed to this rise.

So we are told that in the XIX^th C, rights rose from a neglect that had fallen upon them in the aftermath of the French Revolution, to provide a framework in which to build the ideological case for national self-determination. The rights which benefited from this recrudescence were rather ethnic rights than human rights as we understand the term. Not mentioned by Mirsky, but an obvious illustration, is that in the aftermath of the Great War, the victorious Powers attempted a post facto justification for the horrors of a war that was forced on them (and a prophylactic against further wars) in the creation of a League of Nations and the acceptance as a foundational truth of those supposed ‘rights’ to national self-determination (demonstrated in the redrawing of the map of Europe on ethnic principles.) Just so, as the review does mention, did substantially the same Powers attempt the same salving of conscience for the crippling horrors of another unsought war in the drafting of the Universal Declaration of Human Rights (United Nations, 1948b). But these were, as yet, more ways of speaking than ways of thinking.

For the powers–the Nuremberg trials notwithstanding–human rights were more than propaganda but less than policy, a way of articulating, a la Franklin Roosevelt’s “Four Freedoms,” the basic moral impulses of the Allies’ war effort, without giving them concrete expression.

This turn towards human rights was, I suppose, made necessary in part by revulsion at the unsavoury consequences of the validation of those rights to national self-determination that followed in the wake of the Versailles settlement. But this left us with two divergent discourses involving claims of rights: one appealing to ethnic rights and another to so-called human rights. The ethnic rights that had been discredited in the European case were now adopted by those seeking independence from obviously moribund European empires, and by those totalitarian powers that sought to exploit this process in order to weaken the West, while human rights became part of the ideological arsenal of the West to be deployed against the totalitarian regimes that confronted it. Until the inevitable discrediting for a second time of those ethnic rights in the disastrous immediate consequences of decolonization (disastrous in terms of real human well-being) human rights could get no purchase in the oppositional intelligentsia of the West; but afterwards – when no other forms of rights could be seriously defended – it was discovered that it was indeed possible to use these human rights for the same purpose. (Of course, this isn’t quite how Mirsky puts it.) This, however, did not become quite obvious until as late as the seventies of the XX^th C; but when it did, the acceptance of human rights talk as being the only acceptable form of moral discourse amongst all right-thinking people was extraordinarily sudden and complete.

Now this is interesting as intellectual history, but it runs the risk of overstating the significance of those contingencies in the triumph of rights. In fact, one has to suspect that those contingencies did no more than constrain the particular course of development of a moral vision that would have developed in some very similar fashion in any case. ‘Rights’ as the dominant form of moral discourse as opposed to ‘virtues’ are a natural and inevitable consequence of the assimilation of moral thought to legal thought. The history of moral thought in the West can profitably be seen as just such a process.

The moral thought of the Classical (Hellenic) world did not, of course, lack a notion of rights – any social system will have such a notion whenever privileges of action or treatment are distributed or assigned differentially according to social rank. The Greeks were perfectly capable of saying what it was right for one person to do or what it was wrong for one to do to another, and the same is true of the Romans. What distinguishes their moral reasoning from our own is that their justifications – so far as they gave them form – were phrased in terms of the virtues that were supposed to characterize a good man. Their philosophers, seeking for a justification for these virtues tended to settle for a relatively simple instrumentalism: virtues are what will lead to a successful life. Such a conclusion makes more sense to us when we take note that the word that we translate as ‘virtue’ is actually arete, a general (not specifically moral) word for excellence. In Aristotle’s version of this system, to justify the normative value of these virtues, he appealed to the notion of a characteristic activity of a thing, and pointed out that the virtues of anything were just those characteristics which allowed it to be a good thing of its kind, which is to say, allowed it to perform its characteristic activity well. By analogy, the virtues of a man were just those characteristics which allowed him to perform his characteristic activity well (whatever that might be.)

The Stoics adopted this idea, and took it further, treating the characteristic activity of a thing as being what was in that thing’s nature. When the Stoics spoke of the nature of a thing, they had in mind partly the idea of there being a functional norm that attaches to the thing. But this is only a functional view of the nature of things. That is one way to look at a claim that for each thing there is a way that it ought to be treated or that it ought to behave. Another way is to draw an analogy to the way that laws govern how people ought to behave. So we could say that the norms attached to each thing define a law that describes its relationship to the rest of the world – the actions and behaviours that are allowed for it. So there is a law about how flutes are to be treated and what flutes can do, there is a law about how knives are to be treated and what knives may do, and, of course, a law about people. Now, given that norms for things could be seen as equivalent to the natures of those things, it was an easy step to say that the natures of things were somehow a kind of law binding those things. A flute is a good flute if it follows the law of nature concerning flutes – and, really, what else could a flute do? The same will be true for a man: he is good if he follows the law of nature concerning men.

At this point we can understand the Stoic claim that each individual or particular thing in the world has a nature or a normative ‘characteristic activity’ and there’s a law for it. The Stoics, however, extended this idea to the idea that there is a norm for the entirety of the world: that there is a way for it to be naturally. Thus there is an idea of a Natural Law (with capital letters) which describes how the World is. One of the reasons that the Stoics made this move was to answer the objection that arises from the trivial observation that much that happens to flutes is not appropriate to them – it does not comply with the norm that describes what is right for flutes; nor is it in their nature. For example, a flute may be dropped, badly made, played by a tone deaf person, and so on. Viewed from the narrow perspective of the law of flutes this would be a violation of the law, but from the point of view of the Laws which apply to the whole World, these occurrences could be seen as quite according to the Nature of the World, and part of its necessarily perfect operation. It was the Stoic view that everything that happened in the world was according to Nature if viewed in that way, and thus everything would be a part of Nature’s perfect ordering of the World – even those things that appeared from the point of view of a particular thing to be unnatural. Of course, the important application is to people rather than flutes. In that case Marcus Aurelius, for example, compares the evils which may happen to us with the unpleasantness of a doctor’s prescription which is necessary for our health. Thus:

And so accept everything which happens, even if it seem disagreeable, because it leads to this, to the health of the universe and to the prosperity and felicity of Zeus (the universe). For he would not have brought on any man what he has brought, if it were not useful for the whole.

The significant part of this attitude I take to be the appeal to Zeus. By this point in the Stoic reasoning Nature is starting to look like something active and purposive, and when you talk of laws you are also tempted to suppose that there must be a lawgiver. In fact the Stoics tended to identify the Law with Nature and with the only real god Zeus. I think that we’re generally familiar with the idea of a single supreme legislator whose will is the ground for the norms that we must follow. Surely Stoicism and other similar philosophies of the Hellenistic and Roman Imperial period prepared the way for the acceptance of Christianity; and Christianity had its own characteristics that tended to encourage the legalistic view of morality.

For a start, the fact that Christianity triumphed meant that the Jewish approach to ethics now became a contributing factor in the Western ethical tradition: for Christianity began as a Jewish sect, and all its first leaders were Jews. And the most important new idea that the Jews brought to the West was that ethical behaviour was simply behaviour that followed the Law that had been revealed to the Chosen People by God. Initially, this was a profoundly unintellectual approach to ethics. One modern Jewish author makes the point quite forcefully. (I paraphrase:)

The history of the Jews is the history of a human collective that said “we will do and obey,” because it did not make the observance of the commandments conditional on understanding them. “Self-dedication to goals made concrete,” action and not theory, a doctrine that is all imperatives (without any philosophical statement) [Assaf Inbari (2006) ‘The Spectacles of Isaiah Berlin ’ Azure Spring 5766/2006, No 24]

Such an unintellectual approach to Law was impossible for the educated classes of the West – the idea that what is right is right because God says it is right had been explicitly and still convincingly refuted by Plato in the Euthyphro. Augustine, however, provided a way to justify obedience to God’s Laws by taking a leaf from the Aristotelian book: he accepted, as Aristotle had done, that the final end of all actions, the summum bonum, was a type of ‘happiness,’ which was called eudaimonia in Greek and beatitudo in Latin, but he argued that the principal good was the immortality promised to the Christian elect, and that if people were going to be really happy they would need to have this immortality. Therefore, according to Augustine, the effort to achieve happiness had to involve doing what was required to achieve immortality; and, of course, what was that required was obedience to God’s Laws.

Of course, the Laws involved included the Ten Commandments of the Jewish tradition, and in following these Laws the good Christian could act purely instrumentally, treating the religion as an external thing; but they also included two new fundamental commands given by Christ: (1) to love God above all and (2) to love your neighbour as yourself. The following of these new Laws could not be purely external and made demands upon the character and acceptable motivations of the true believer. In this way Augustine’s view of morality could be concerned with the development of character virtues just as the ancient moral systems had been, and at the same time could lay emphasis upon the existence of Law and our newly justified duty to obey it.

Once the role of Law had been so established the future course of ethical thought seems to have been largely determined. Aquinas merely added to the legalistic notion by providing a convincing explanation of the purpose of these Laws and by establishing rational relationships amongst the various kinds of Laws that there are. The key to this is in his discovery (Summa Theologiae IaIIae Q. 90) that a law is ‘an ordinance of reason for the common good, made by him who has care of the community, and promulgated.’ As God was good and omniscient, it followed that the purpose of these Laws, which a reasonable person could discover through reason applied to their natural inclinations, was to benefit those to whom the Law applied. There was an Eternal Law that guided the entire universe for God’s good purposes – just as there was a Law identified with Zeus and the World (Nature) for the Stoics – and there is an element of this Law that applies to rational beings such as us, God’s chosen, that we can follow  or not (but we ought to, because God, as Creator and Lord of All, has the authority to issue laws, and we are his creatures and ought therefore to obey that which is both legitimately laid upon us and which will be of benefit to us.)

And at this point it was a simple step for John Locke to provide a justification for moral rights that were granted by Natural Law in exactly the same way that legal rights were granted by the positive law of the state. Rights are granted just in so far as their possession would be of overall benefit for those whom God wishes to benefit – and just as God has made it possible for us to follow Natural Law by making it knowable by any rational creature (not ‘known’ but ‘knowable,’) just so He has made it possible for us to know what our rights are by that same reason. Rights are now an inevitable consequence of Law, and no matter what version of Law is adopted as playing the role that the Stoic-Augustinian-Aquinean Natural Law did, whether it be Hobbesian prudence or Kantian Categorical Imperatives, these entities will continue to be claimed and justified.