This year has already seen many enthusiastic celebrations of the Seventieth Anniversary of the United Nations Declaration of Human Rights. Yet when they have taken the form of academic colloquia, like the one which I attended in St Andrews recently, the enthusiasm has often been more muted, mingled with considerable expressions of disquiet.
Why should that be the case? Is not the ever-increasing dominance of Human Rights talk evidence of the continued and increasing triumph of the vision of the signatories to the Declaration? And yet there was sophistically disguised unease right from the outset.
Famously, the Catholic philosopher Jacques Maritain, who was considerably involved in shaping the content of the Declaration, celebrated the fact that it had established a large measure of practical agreement as to the content of rights, despite a total failure to arrive at any consensus as to their conceptual foundations.
But can that be coherent? Can the legal enactment of rights peg along quite happily without any ultimate justification for this practice, or any agreement as to what a right really is? Surely, if such a pragmatic consensus really holds without dissension, then that can only be because it involves an implicit philosophy? Or else, to the extent that people appear to agree about rights, in reality this means quite different things and eventually this theoretical difference will show up as disputes about concrete issues of justice and politics?
Both these alternatives can in reality be instanced.
As Samuel Moyn, in Christian Human Rights, and others have argued, the 1948 Declaration in fact rested upon a unique philosophy and a unique historical moment.
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The unique philosophy was a resurgence of specifically Christian Natural Law thinking, pivoted about notions of Human Dignity consequent upon the idea that Human Beings are created in the image of God. Refusal of slavery, rights to just trial, to participation in constitutional procedures, to religious freedom, to basic welfare, to free elementary education, to the support of marriage and of traditional family life were seen as following this recognition of an inherent human ontological status.
The unique historical moment was the defeat of totalitarian regimes. A sometimes belated recognition of the dangers of fascism now caused Christian thinkers to embrace more strongly many elements of liberalism. If democracy was also newly urged with fervour, it was so more cautiously, because of the mass democratic origin of totalitarianism.
In consequence, originally revolutionary ‘right’ was now added to more conservative ‘dignity’. The consequence was that many of the assumptions as to what might constitute the objectively flourishing life of human beings (as indicated above) were now oddly framed in terms of the apparent priority of subjective claims – the claim to the right to a fair trial, to education, welfare and not to be tortured and so forth.
Of course, a further unique feature of the Declaration was its international character, its delinking from the rights of a citizen in any particular nation. And yet, in reality, the Declaration assumed implementation by national states and it implicitly supported the ultimacy of the sovereign nation state framework. As Samuel Moyn also says, it broadly assumed a programme of further equalisation linked to either Social or Christian Democracy. Such a programme was congruent with dignity, but in excess of rights, which were not expected to do all the work of justice.
This envisaged settlement was for a long time remarkably successful. And yet ever since the Nineteen Seventies it has broken down, to be replaced by the growth of a neoliberal economic and global order, which today prevails all the more, even as it comes under populist pressure.
There is therefore a prima facie reason to doubt whether the contemporary popularity of Human Rights is in continuity with the outlook of the 1948 Declaration after all. It has done little to stem the rise of economic inequality, the deterioration of education and welfare services, the disintegration of the family and the erosion of religious freedom. Should we not suppose that it means something rather different than the Natural Law based outlook of Maritain and others?
Above all, we must rightly suspect that the current cult of Human Rights is but the complementary cultural face of a dogmatic individualism in the economic sphere, which attempts to distil order from an assumed natural disorder of competing wills, incompatible choices and endemic scarcity of resources and opportunities. All these biases make exactly the reverse assumptions to traditional Classical and Christian ius-naturalism.
What is more, the increasingly globalised and apolitical character of Human Rights tends to remove them both from the realm of real political enforceability and of wider political visions of just community. The leaders of countries outside the Western tradition make formal obeisance to Human Rights, yet their cultures sometimes lack the historical habits of absolute respect for the individual person that can make sense of them.
And now that Western countries themselves back away from the religious and metaphysical traditions that nurtured this sense, their advocacy of Human Rights seems to outsiders just the recommendation of an empty voluntarism, whose economic and technological aspects non-Western countries may find congenial, but whose cultural and political aspects far less so.
It is indeed the case that there is a far greater chance of persuading, say, a culture suffused with Confucian ideas to approach the sanctity of the person by an appeal to more traditional Western notions of cosmically-situated justice, than to expect it to embrace Human Rights without any mediating context. Or again to persuade some Muslim cultures that female genital mutilation conflicts with Islamic tradition concerning female dignity, rather than that it offends the universal freedom of women in general.
Yet the framers of the Declaration must also be held culpable for the eventual deterioration of rights culture.
Its supposedly just ‘pragmatic’ consensus in reality deployed language which makes it sound as if claim rights rest on their own subjective foundations of self-possessed assertion. But this would be to endorse the idea that human beings actually lack dignity; that all we hold in common are raw wills, whose choices will inevitably conflict.
The paradoxical Hobbesian way out of this must be to regard such anarchy and endemic warfare as itself the absolute natural source of value. For it issues in the demand for unqualified obedience to the Sovereign legal power and monopoliser of violence who can alone ensure a simulacrum of peace. Yet in ‘liberal’ terms (as already envisaged by Hobbes) it does so by enforcing contracts and agreements that have been voluntarily entered into by individuals out of either fear or sympathetic sentiment.
In this way, individual and arbitrary choice becomes a legally-established ‘claim’ upon which the obligations and duties of the State and of individuals can be founded.
By contrast, under an older Natural Law outlook, uncontaminated by liberalism, rights were secondary to obligations. Claims might be made, but with respect to the duties that others were obliged to perform. Rights to certain functions and usages might be exercised, but with respect to more primary social norms of distribution in which they were embedded and which permitted their exercise.
Moreover, these duties and norms and so the matching rights – all called ius, the objectively ‘right’ or correct – were innumerable and constantly variable. Natural justice was infinitely attendant to the vagaries of time, custom, place and circumstance, besides the overriding claims of equity. Just for this reason it tried to respect the particular person and her unique needs, or else the unique needs of a particular community. This is the kind of order that prevailed in a somewhat exemplary manner under Saint Louis IX in Thirteenth Century France, as Andrew Willard Jones has described in his Before Church and State.
However, Natural Rights, which are all too latent in the Declaration, imply just the opposite.
In the first place, that obligation only arises in relation to claim. Yet if claim is primary, it must rest upon mere will and so be arbitrary. For example, a matter of people wanting to be educated rather than education being objectively desirable for them.
The importance of rights to claim (which I am not denying and which were first newly stressed in the Christian Middle Ages) is that victims can legitimately do something about their victimhood. But one disadvantage of perversely making claim foundational is that it curiously tends to let those who should be obliged off the hook of their duty. Thus, for example, it can be taken to imply that we should only try to educate people to the extent and the degree that they are making a fuss about it. Or even only refrain from torturing prisoners if their relations complain to the press.
Another is that the provider of the right must be treated as a sort of natural force, or like God. Yet this quickly inverts into a tyrannous bureaucratic control of all pedagogic processes and health provision.
It is more egalitarian and participatory to begin with the natural law supposition that education and health are good ends of human flourishing which we should assist each other to pursue. Then the provision of health and learning becomes a reciprocal matter and our collective obligation to fund doctors and teachers also involves their partial answerability to the populace at large.
In the second place, Natural or Human Rights imply that rights are few in number, are unchanging, unvarying and quite different from normal legal enactments whose purpose is just and practical and can therefore be assumed to be amoral and unrelated to justice.
All this amounts not to respect for human beings as unique persons within unique sets of relationships, in unique times and places, but just the opposite.
Under the guise of a pious humanism it clearly involves a cold indifference and a legitimated impersonalism. Everyone must be treated the same without exception and rules matter more than tacit, experiential knowledge or the preservation of peaceful and happy relationships.
Incrementally, this logic has been deployed to destroy the interpersonal logic of marriage and the family also. For just this reason, the true nonconformist rebel of today is the one who has a considerable disdain for rules and counter-culturally seeks to extend a charitable family-logic to all other spheres of social existence: who seeks to develop an alternative order through networks of friends; who generally puts his friends first in defiance of official ‘detached’ procedure, in order to extend peace and limit enmity; and who refuses the state monopoly of force, since it is always the natural obligation of all to ensure the doing of justice.
As Chateaubriand once pointed out, modernity is above all a consistent removal of significant citizen and religiously liturgical agency from most people, resulting in their alienation from the most defining human and civilised activities.
The only significant resistance is one that tries to reverse this removal.
Of course, the denaturing of women in our time in order to encourage even them to put rule before relationship is perhaps the most sinister aspect of the intensified modern agenda which is neoliberalism.
While its most subtle is its cultural advancement by those who imagine they are its enemies.
Despite its incubation of liberalism, the 1948 Declaration was not yet liberal and remained still Christian. It assumed, though it failed adequately to foreground, a metaphysical basis in Human Dignity and so an embedding of rights within the wider scope of just polities, subject like their citizens to principled obligations and the ultimate claims of charity. Today, instead, we have the ever-spreading nonsense of separate courts for rights and legal specialists in this area.
To separate rights from justice in general is to forego the possibility of distributive mediation between competing rights claims in the name of Natural Law. It must instead assume that they can only be mediated in the name of ever more drastic doctrines of the absoluteness of the individual will if it can get others to respect its demands.
It is for this reason that we are now deserting the path of basic humanity with respect to matters of life, death, sexuality and gender.
It is for this reason also that individual entitlements are sometimes allowed to override the claims of collective security.
It is for this reason once again that the mobile person may be favoured (though often in the interests of her exploiters) over the settled one, whose very lack of mobility suggests a deficiency of what is taken by liberalism to be the humanly-defining possession of an independent elective will.
Inversely, the exercise of justice in normal courts without inherent reference to rights risks a further descent into the mere positivism of precedent and imposition.
Once courts of rights have been divided from those of justice, one or the other tends to prevail. And as it is rights that cleave closest to the liberal foundational discourse it is their prevailing, at least as to dominant rhetoric, that is most likely. But this prevailing is already inducing a delirium that makes us uncertain of our shared humanity, in detachment from time, place, tradition and embodiment.
What is more, in the face of the increased possibilities of automatic process, it leaves us no criteria for deciding when given process (natural or artificial), or alternatively free spontaneity and non-machinic judgement should prevail. Nor guidance in cultivating appropriate habits that can blend liberty with procedure.
In short, we need to break with the dangerous and anti-personalist cult of Human Rights. We need to return to the hidden primacy of Dignity within the Declaration. But we also need to break with its concessions to a foundational liberalism. The only road now to the recovery and increase of the greater social justice that prevailed from roughly 1945-1970 must be a more communitarian one. This would have to resubordinate Natural Right to the greater and more primordial matters of Natural Law and natural justice.
John Milbank is Emeritus Professor of Religion, Politics and Ethics at the University of Nottingham.