The Rights Revolution Page 5

  Human rights are not just for those who have lost all other rights. They also serve a vital function for those who live in developed civil- and political-rights regimes. Since Roman times, the European tradition has developed an idea of natural law, whose purpose is to provide an ideal vantage point from which to criticize and revise actually existing law. There has always been a deep tension between those who take the law as it is — rough and ready, precedent-driven — and those who want the law to be the ideal conclusion of a single rational mind. Natural law arose from a desire to bring order to the jungle of law, and to remedy its injustice by reference to a universal standard. Natural law has provided a vantage point from which to criticize laws as they were, and to uphold a right of resistance when they could not be changed.14

  Our idea of human rights descends from this tradition of natural law. In the contemporary world, human rights have provided an international standard of best practice that has been used to upgrade and improve our civil and political rights. So in Europe, for example, when citizens of Britain have a grievance and their laws provide no remedy, they can take their case to the European Court of Human Rights in Strasbourg. Often, this court will find against British law, and when it does, the British usually, though not always, revise their statutes accordingly.15

  Let’s not suppose that the British are always happy about this procedure, however. Many believe it to be an affront to national sovereignty. What right do “they” — meaning the judges of Strasbourg — have to alter national laws?

  This takes us into an important issue of principle. Many people feel that any such override by an international body interferes with the rights of national cultures to define their own laws. In Britain, the override has legitimacy because the European Convention on Human Rights draws on legal traditions that the British recognize as similar to their own. But in many countries in the Islamic world, in Africa and Asia, human-rights movements are seen as an alien attempt to impose European standards on cultures and norms that have their own legitimacy.

  What entitles Westerners to enforce human rights on other cultures? Nothing does. If rights are about protecting human agency, then they require us to respect the way other human beings use their agency. The argument that people in other cultures would adopt human-rights standards if they only knew what we know — and that therefore we can intervene, whether or not they want us to — is simply wrong. The idea that some people are unable to discern their own real interests is an invariable alibi of paternalism or tyranny. Victims are victims only if they say they are. The corollary is also true: we’re mandated to intervene on their behalf only if other peoples and cultures ask for help.

  Rights language mandates respect, and respect mandates consent. If in Pakistan — or Canada, for that matter — women consent to remain within Islamic law, that is their business. If, on the other hand, they seek an education or want to marry someone of their own choosing, and they ask for our help against religious or secular authorities, then we can step in to aid them as best we can. But help means help; it doesn’t mean conversion or assimilation. We’ve got no business inflicting our way of life upon them. Rights talk and Western culture are quite separable. Other cultures want to have rights protection without choosing Western dress, food, or technology. To the degree that Westerners are drawn into assisting other cultures, they are under an obligation, one intrinsic to rights language itself, to respect the autonomy of the cultures in which they work.

  This problem of reconciling human-rights standards with local values doesn’t occur only in non-Western societies. It also occurs close to home. In Western societies, law is supposed to be the expression of popular sovereignty. Hence in our societies, as in non-Western ones, a real question arises: Should human-rights codes, drafted as they are by a bunch of international lawyers who are elected by nobody, have precedence over national laws passed by representatives of the people?

  One of the places where they ask this question is the United States. The U.S. Congress has repeatedly refused to ratify international human-rights documents, from the genocide convention to the Geneva Convention’s additional protocols and the Convention on the Rights of the Child.16 Congress construes these documents as either inconsistent with American law or an intrusion on the sovereignty of Congress and the American people. Behind this attitude lies what might be called rights narcissism, the idea that the land of the free and home of the brave has nothing to learn from anybody else.17 So America has a paradoxical relationship to human rights: its own constitution embodies a noble rights tradition, and American leaders such as Eleanor Roosevelt have helped write international human-rights texts,18 but Congress and large sectors of the American people believe that nobody outside their country has any business criticizing the conditions of their prisons or the possibly biased, unjust, and unfair way that capital punishment is carried out in certain states, especially Texas.

  Human rights, therefore, are in conflict with popular sovereignty as an expression of national culture.19 But this conflict is a necessary one. Democracies are not always right. When majority decisions are unjust, dissenting minorities must have the capacity to appeal to a higher law. Human-rights legislation provides just such a language of appeal. In the United States, those who oppose capital punishment do so in the name of both the U.S. constitution and international human rights. There is no way to eliminate the tension between human-rights principles and democracy. Indeed, the tension is essential to the preservation of liberty.

  In Canada, governments do not always respect our civil and political rights. They may even suspend them sometimes, as happened with the War Measures Act in October 1970, when the federal government, believing there was a civil insurrection in Quebec, used military power to arrest more than 500 individuals suspected of terrorist sympathies and hold them without trial. When the emergency passed, basic rights were restored. But what if they aren’t? What if governments take them away for good? These things happen. Germany of the 1920s was a democracy, with a constitution and the rule of law. But the Great Depression and the ensuing economic chaos drove millions of German voters into the arms of Hitler. It cannot be repeated too often that when Hitler came to power in 1933, he enjoyed vast popular support. So did the reforms he subsequently put through: abolishing the rights of certain citizens to marry, acquire property, and vote. These Nuremberg Laws, which abrogated the rights of citizens who happened to be Jewish, were enforced by lawyers and judges raised in the best traditions of European law. One terrifying aspect of Nazi Germany is how gross and immoral injustice was given the semblance of legality, and how these injustices basked in popular support. Indeed, had Hitler died in 1937, he might have gone to his grave as the most esteemed German since Goethe. The lesson of this story is that even a Reichtstadt, even a lawful society, can lend its support to measures that turn fellow citizens into pariahs. From the denial of civic rights to the obligation to wear a yellow star in public was but one step. And from the yellow star to deportation to the east was but another. And with deportation to the east, as far as most Germans were concerned, the problem simply disappeared.

  This terrible story tells us that there must be some higher law, some set of rights that no government, no human authority, can take away. The purpose of this higher law is to rouse the individual conscience from its slumber. When that happens, perhaps an ordinary citizen, watching his neighbours being taken away, will have the courage to think, This may be legal, but it is not right. Then he or she may say, out loud, “This must stop. Now.”

  Such moral courage is always a mystery, but we know that it springs from example, from what our mothers and fathers taught us was right, and also from what our culture tells us we should believe. The cultural resources of the German people were immense: from Schiller’s “Ode to Joy,” which celebrates the deep oneness of all mankind, to Beethoven’s “Fidelio,” with its unforgettable ode to freedom. Yet we know that these great works did not inspire ordinary Germans to see the abomination that wa
s before their very eyes.

  In the face of the insufficiency of Europe’s existing cultural resources, the Allies were determined to create a new language capable of strengthening the capacity of ordinary people to refuse unjust orders and to stand up when fellow human beings were taken away. The central idea was indivisibility — that is, that no one’s rights are separate from anyone else’s, and that if they come in the night to violate the rights of Jews, they are violating the rights of everyone. This is the deeper context, I think, in which we should understand the emergence of human rights after the Second World War. The Universal Declaration of Human Rights, proclaimed by the United Nations in December 1948, was the first of a spreading canopy of laws whose essential function was to give ordinary human beings the capacity to recognize evil when they see it, as well as the authority to denounce and oppose it. Human-rights legislation is thus one instrument we have devised to strengthen civic courage and deepen the capacity of individuals to stand up for each other.

  The Universal Declaration of Human Rights altered the balance between national sovereignty and individual rights. With the declaration, the rights of individuals were supposed to prevail over the rights of states when those states engaged in abominable practices. This might be the most revolutionary of all the changes that have taken place since the peace of Westphalia established the European order of states in 1648. With each passing year, we get closer to a new dispensation in which the sovereign rights of states are conditional upon there being adequate protections for the basic human rights of citizens. Where states consistently abuse human rights, where all peaceful remedies have been exhausted, the UN may authorize intervention, from sanctions all the way up to a full-scale military campaign. From the world of the 1930s, where the violations of the German Reich were viewed as a strictly internal matter, to the world of the 1990s, where violations in a province of Serbia end up justifying military intervention, we have travelled a long way.

  Yet many people increasingly question the destination to which human rights seem to be headed. The emerging obligation to protect strangers outside our own borders is indeterminate and unclear — and it could also be dangerous. It may be a warrant for imperialism, and imperialism contradicts one of the basic rights we have: to rule ourselves free of outside interference.

  The interventions of the 1990s — Somalia, Bosnia, Kosovo — were all justified in the name of human rights, and all involved a potential conflict with the right of peoples to live their lives without interference. How are we to resolve this conflict? Our obligation to care for the human rights of others is limited by rights talk itself. We have no business intervening in other people’s lives unless they explicitly ask for help. The basic rules that apply overseas also apply at home. You may have next-door neighbours who fight. You can hear their arguments through the party wall. You don’t have any right to intervene. It’s their business. But if you hear a blow, a cry, and a call for help, you’d be something less than a citizen, and possibly something less than a human being, if you didn’t come through the door to break up the dispute.

  Those who criticize interventions in the name of human rights on the grounds that we must always respect the sovereignty of a state need to remember that the victims of that state are usually imploring us to intervene. That’s the first condition that must be met if interventions are justified: victims must be demanding our help. Other conditions follow: the abuses must be gross and systematic; they must be spilling over into other countries, causing refugee flows and instability in nearby states; and intervention must stand a genuine chance of stopping the abuses. Intervention has no justification as punishment; its only purpose is to protect. Another condition is that intervention must be a last resort. Force is never just unless all other peaceful means of finding a solution have been exhausted. Those who intervene must also seek the consent of the international community, preferably the UN’S Security Council. We don’t want a world in which human-rights principles end up justifying unilateral military interventions by single states. So these states need to convince other states of the justice of their cause, and the best place to do that is the Security Council. But sometimes — and the genocide in Rwanda is one such case — intervention is imperative, yet one or other Security Council power prevents it from happening. In such instances, coalitions of countries may have to persuade each other to act, and they should do so provided that their intervention meets the tests I’ve outlined. Finally, human-rights principles can never justify a permanent military occupation of another people’s territory. If we intervene, we have to get out once the job is done, once victims have been returned to their homes, once the killing has stopped.20

  I leave it to you to judge whether recent interventions have actually met these tests.21 Instead, I want to make the more general point that the concept of human rights is a self-limiting kind of authority. Yes, it mandates the use of force in exceptional circumstances. But those who invoke it to justify force are committing themselves to use force with maximum restraint, to seek the consent of victims and the consent of other states, and to leave when the job is done.

  Having said all this, I must not pretend that justifications of force will ever be anything but controversial. What some will see as a mission of humanitarian rescue, others are bound to see as an imperialist violation of the sovereignty of a people. People who talk about human-rights principles as if they were the common sense of humankind fail to understand that all rights claims, including those that seem perfectly self-evident to us, are bound to be controversial to others. A belief in human rights is not a faith like a religion, and the authority it confers is not the authority of faith, only the authority of argument. Human rights are not the trump cards that end arguments. In the real business of moral life, there are no trumps. There are only reasons, and some are more convincing than others. If this is true, then the legitimacy of human-rights interventions — the large ones that marshal armies and the small ones that intercede in personal lives — can only ever be limited and conditional. This is a blessing in disguise, for it means that they will never command the kind of consensus that sometimes justifies unlimited brutality.

  It would be a mistake, in other words, to think of human rights as a pure and abstract morality. Rights are used to justify acts of power and resistance, and like all such languages, rights talk is open to abuse. Rights talk can be used to justify evil as well as good. But properly understood, it is self-limiting. To say you have a right to do X is to imply the right of Y to resist. To say you have a right, moreover, is to engage in justification, and all justification implies the possibility of rebuttal.

  Let me sum up. The first presumption I have argued against in these lectures is that the language of rights is an apologia for force. I am committed to the language of rights for precisely the opposite reason: because it mandates limits to the use of force.

  The second presumption I have opposed is the claim that rights language fragments community. I shall have more to say about this in later lectures, because the charge simply won’t go away, but for the moment I want to emphasize that rights create reciprocities, and that these reciprocities are the very bedrock of community. Moreover, rights express not only individual claims, but also collective values: above all, the idea that rights are indivisible. If they come for you, they also come for me. That means we must stick together.

  The third claim I have criticized in these lectures is that rights are hostile to difference. Marx was simply wrong when he claimed, in 1843, that rights talk reduces us all to abstract, equal individuals, held together by our biological sameness. The claim I would make is the reverse. If the supreme value that rights seek to protect is human agency, then the chief expression of human agency is difference, the ceaseless elaboration of disguises, affirmations, identities, and claims, at once individually and collectively. To believe in rights is to believe in defending difference.

  The final argument, most basic of all, is that rights are not abstractions. They
are the very heart of our community and the very core of our values. We have them because those who went before us fought for them, and in some cases died for them. Our commitment to rights is a commitment to our ancestors. We owe it to them to maintain the vitality of the right to dissent, the right to belong, and the right to be different. In my next lecture, I want to explain, in more detail, how a single community like ours struggles to reconcile these values. For they make us who we are.

  III

  THE POOL TABLE OR THE PATCHWORK QUILT: INDIVIDUAL AND GROUP RIGHTS

  THE IDEA OF RIGHTS implies that my rights are equal to yours. If rights aren’t equal, they wouldn’t be rights, just a set of privileges for separate groups of individuals. The essential purpose of any political community based on rights is to protect that equality on behalf of everyone. What holds a nation together, then, is this commitment we each make to treat all individuals the same.

  Now the trouble with equality is that no one actually wants to be treated just like everybody else. We want this as a baseline, but we also want more. Each of us wants to be treated equally and to be recognized as different. We want other people to acknowledge us as individuals and as members of groups, to recognize the status that goes with being somebody special. In private life, we usually get this recognition. But we also want our distinctiveness recognized in public. As citizens, we want public officials to pay attention to us as individuals with particular needs. Reconciling the demand that we be recognized as individuals and simultaneously treated as equals is not easy, as doctors, welfare officers, and policemen and -women know to their cost. These people are supposed to be fair without being partial, giving everyone their due without doing anyone any favours. An official who does favours on a regular basis is corrupt. Corruption violates the principle that in this society everyone has rights, but no one ought to have privileges. Again, I’m talking about what’s supposed to happen, not what actually does. Everyone, but everyone, is trying to get privileges out of our system. The fact that the system works with any degree of equity and honesty is testimony to the power of equality as an ideal.