The end of the Cold War saw the victory of liberal democracy over its twentieth century ideological rivals, but no new consensus culture has followed because of the widening gap within the Western world between classical liberalism, with its appeals to universal natural law and natural rights in agreement with that unchanging law, and progressivism, which seeks to use evolving concepts of law and rights to fashion a better world. Instead of natural rights everywhere and always applicable, political discourse now concerns “human rights,” which can be continually refashioned by leaders of public opinion.
This point was well made by Aaron Rhodes, President of the Forum for Religious Freedom—Europe, and formerly Executive Director of the International Helsinki Federation for Human Rights and other panelists in discussing Rhodes’ new book, The Debasement of Human Rights, at the Cato Institute on May 14.
By attempting to include economic and social rights as part of the concept of human rights, the concept of human rights has become debased, leading to “moral confusions,” it was noted in introducing the discussion. The original concept of “natural rights,” was of rights which are universally held independent of and before any government. Because human rights are no longer grounded in natural rights, there is “little question that the concept of human rights has lost clarity.”
Rhodes maintains that rights should be “very broad.” The original natural rights doctrine “allowed Western civilization to reach out and aspire to universal principles that apply to the world in general.” “Natural law” is key to the concept of “natural rights.” However, the term “natural rights” has now been dropped – indeed, Rhodes said that he has never heard the term “natural rights” used in contemporary discussions of rights. It is thus unclear what human rights are based on or how new discoveries of rights should be made.
A clear understanding of the pre-political nature of natural rights and their status as justifying human rights would prevent the concept of human rights from being corrupted, Rhodes asserted. The corruption of human rights has “profound consequences.” The concept of human rights “undergone serious changes since the early 1990s,” while the actual freedoms people enjoy have “deteriorated.” We must “use reason” in arriving at and analyzing natural rights. They should not be based on a mere act of will. Freedom, Rhodes believes, is the general idea that can guide to identification of natural rights. “There is really no basis for deciding what is or is not a human right anymore.” A second problem is there is no basis for finding which rights are more important. Various pronouncements from the U.N., Rhodes asserted, essentially say that “all human rights are equal.” Essentially political policy goals, such as rent control, are presented as “human rights.” As a result, the international human rights community is “swamped with human rights institutions that have nothing to do with human rights.” At least some of the concerns considered by these institutions are “real problems,” but they are not matters of human rights.
Rhodes claims that his critique is not an attack “socialism,” or “welfare states,” but that those objectives are political aspirations, not “a matter of human rights.” Rhodes also claims that the U.N. Universal Declaration of Human Rights, although promulgated in 1948, already incorporates economic and social rights, and therefore is a corrupt basis for human rights activism. The declaration “is a kind of smorgasbord.” The acceptance of economic and social rights has turned the concept of human rights into a concept hostile to natural rights. Communist dictatorships, Rhodes maintained, feared the concept of human rights, and therefore tried to subvert the concept. They did this by redefining human rights as “services to their citizens.” The Universal Declaration “accommodated totalitarian governments.” But it was also “intellectual and philosophical capitulation” to totalitarian subversion. It was with the Universal Declaration that “human rights parted company” with natural rights. The actual basis of the declaration was the results of a survey of world political and social leaders. The declaration is a confusion of “universal and positive law.” It fuses “the communist view of human rights with liberalism.” Today, “it is a symptom of post-modernism” to blur moral distinctions, as the declaration does.
Deterioration of human rights since the Declaration was made in 1948 can especially be seen in what Americans would call “First Amendment rights.” While the declaration’s understanding of freedom of religion, speech, and assembly (Articles 18-20) is in line with classical liberal doctrine, and politically could not be enacted today by an international body, these rights have since been corrupted by subsequent pronouncements. For instance, “hate speech” doctrine, which the Soviet bloc successfully enacted during the Cold War, is included in Article 20 of the International Covenant on Civil and Political Rights. It is held, Rhodes maintained, that the idea of human rights ended the Cold War. But today human rights has as its objective not the ideal of neutral rights, but the political objectives of “peace” and “unity in the world.”
No one would claim that the details of welfare states, such as free employment counseling, are universal natural rights. Rhodes maintained that by including “economic and social” rights among human rights, the concept of human rights is being debased, detached from universal and unchanging natural rights. “Human rights” are thus seen as something that can be given or taken away by the state. Since political theorists and society in general now focus on “human rights” rather than “natural rights” when they talk about freedom and justice, civil and political rights, which were originally derived from natural rights are now in danger of being something that the state gives or can take away. Thus, we need to begin talking again of “natural rights,” rather than “human rights,” Increasingly, rights are “arbitrary and optional.” The “sacrosanct” character of the rights that people hold is now in “serious question.”
James Kirchick of the Center on the United States and Europe and Project on International Order and Strategy, Brookings Institution, a respondent at the presentation, said that he “would have to revise my biography, which says that I’m an advocate of gay rights,” because there is “nothing special” about “women’s rights” or “gay rights” – people in these groups are simply due the rights that everyone has. Kirchick said that another part of the same problem is that many “human rights activists” are in fact by nature social workers, and so do not aim at fidelity to classical natural rights. He identified Amnesty International and Human Rights Watch as organizations that had recently “lost their way” by treating social problems as human rights problems. He believed that Freedom House is much better at addressing human rights problems, because they take a politically incorrect course and “actually rate countries.” Making judgments about other people’s behavior does not sit well with the international human rights community, and the agencies they staff, but it is what is needed if the issue of human rights is to be properly addressed, Kirchick said.
Roger Pilon, Vice President for Legal Affairs, Cato Institute, another respondent, said that on the subject of human rights, liberal democracies are losing, because “they have lost the capacity or the will” to defend human rights as classically understood, as arising from reason and nature, and distinct from political and social objectives. Pilon also noted that the Universal Declaration of Human Rights was based on the opinions of political leaders about what would be good for society, as well as on a heritage of classical liberal political philosophy. The idea of natural rights in the classical liberal tradition is based on reason, not on will, and begins in the Middle Ages. Procedurally, King Henry II of England inaugurated a system of circuit courts with a higher appeals court in the mid-twelfth century. The judges in this system crafted a legal code over the course of the next 500 years which came to be referred to as “common law.”
The doctrine of consent of the governed is part of this classical theory of natural rights, he said, and begins with “state of nature theory.” From the writings of Thomas Hobbes and John Locke, it maintains that from the original complete freedom that all human beings had, governments are formed and endowed with the authorities that they legitimately possess. The natural rights to life, liberty and property are first secured and understood to be absolute, not relative to time or place. The people then establish governments consistent with these rights and which derive the powers that they do have from the people. By consulting “pure reason,” Pilon said, people committed to natural rights doctrine determine which specific “rights and obligations” people should have in a state of complete freedom, or a “state of nature.” But pure reason is finally insufficient, and political theorists must eventually turn to “values.” The objectives of full employment or security in old age might be values that the public would want to pursue. It is concerning differences about values between reasonable people that governments are empowered to act to make binding decisions. But objectives achievable through the government’s discretionary powers should never be referred to as natural rights, and people are not truly entitled to them, whereas on the other hand people are entitled to the natural rights of life, liberty, and property.
A questioner asked what could be done to change the many international agencies and institutions which are embedded in the language of human rights which are understood to include political and social rights. Rhodes said that human rights agencies in Europe, such as the European Court of Human Rights, are increasingly ignored, apparently because the countries they attempt to regulate do not find what are essentially policy decisions credible as judgments about fundamental rights. Rhodes says he expects that noncompliance will increase, and these supranational agencies will “become increasingly irrelevant.” These agencies will then “lose financial resources.” It will then be realized that human rights violations must be dealt with at a national or local level. He thus seemed to say that the human rights discourse of international agencies cannot be changed, but we should hope instead that they will wither away. Human rights will be addressed nationally, in a more traditional way, by national constitutions.
In response to another question about the relationship between human rights and war, Rhodes said that he did not think that there “was such a clear relationship between human rights and security.” On the contrary, Rhodes thought that the quest for human rights, understood as classical natural rights, sometimes “leads to conflict …and conflict sometimes resolves human rights problems.” He did believe, however, that a good case could be made of “promoting human rights to prevent conflict.” Such rights, however, he understands as natural, rather than social and economic rights.
Ilya Shapiro of the Cato Institute asked whether or not “rights” are not simply things that some person or persons care about deeply, so making it a “right.” Pilon said, however, that a true right has an objective meaning, that of standing in a relationship with another person such that the other has an “obligation to do or not do some particular thing,” apparently endeavoring to replicate the freedom of the state of nature as best as can be done in an organized society. For each right, according to Pilon, there is a duty. With natural rights, all citizens can enjoy them at the same time, Pilon said, but with social and economic rights “someone is receiving, and someone else is paying.”
Perhaps key to resolving the threat to human rights in our day is to understand that true natural rights must be possessed by all human beings. Thus, we are all entitled to live and worship in accordance with our understanding of divine reality (freedom of religion), to express both truth and fair opinion (free speech), to form free associations (freedom of assembly, understood to entail association), and publicize our ideas free from state interference in print and broadcast media (freedom of the press). Other rights in the Bill of Rights and the Civil War amendments (Amendments Thirteen to Fifteen) are held by all persons. It might be added that even more basic is a right to life, whether one is disabled, old, newborn, or unborn. But rights tailored to who we are in particular, such as our status as being poor, blind, female, pregnant, homosexually inclined, genetically disabled, etc., are not natural rights, but policy positions that express someone’s will, not our status as free and equal human beings. Recovery of that understanding, both in public perception and in law, will be key to restoring a proper doctrine of human rights.