Regarding Rights

Academic and activist perspectives on human rights

Human Rights: Old and / or New?

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By Roland Burke

La Trobe University, School of Historical & European Studies

The search for the origin(s) of human rights is a pursuit that has attracted much scholarship, historical, legal, philosophical, and anthropological.  In the past decade, finding human rights – and their precursors – has seen the emergence of some highly impressive histories.  It has also, more recently, seen the emergence of a sharp historiographical clash.

While Paul Gordon Lauren’s Evolution of International Human Rights (2003) and Lynn Hunt’s Inventing Human Rights (2007) cast their glance back centuries to ‘find’ human rights, Samuel Moyn (The Last Utopia, 2010) casts his gaze back to find not rights, but their absence.  For Moyn, modern human rights were the creation not of the 1770s, but of the 1970s.  Preceding traditions of rights, be they revolutionary, or humanitarian, or classically liberal, are defined not by their rough fidelity to the modern era, but by their difference and discontinuity.  The split between the ‘orthodox’ long genealogy, and the new short or ‘sprint’ genealogy revisionism says more about the nature of rights than the nature of scholarship.  Although the core idea of universal human rights is characterized by simplicity (all people, all time, all place), its contemporary expression is a huge constellation of different strands, with multiple sites of origin, and centuries of steady accretion, renovation, and wholesale invention.

Those like Lauren who propose a long genealogy of human rights typically find their genesis no later than 1789.  From the pioneering efflorescence of the Atlantic Revolutions, the central concept of human rights promptly found expression in the liberal nationalisms of 1848, and 1861.  It found proto-modern form in the social movements of abolitionism and feminism.  It found method in the writings of the great humanitarian activists, E.D. Morel and Roger Casement, pioneers of the ‘human rights report’.  The more adventurous scholars of the ‘long genealogy’ locate meaningful precursor strands of the concept earlier still, decades before Lafayette, Sieyes, and Condorcet; centuries before Cassin, Benenson, and Sakharov.  The writings of Cesare Beccaria and Bartolomeo Las Casas  are invoked as distant but meaningful waypoints in the serpentine but essentially continuous line of ideas, thinkers, movements, and methods that culminated in the Universal Declaration in 1948.

By contrast, the maximal revisionist account doesn’t even embrace the Universal Declaration as the point of origin.  Instead, it tends to dismisses the presence, or at least the purchase, of human rights before the last three decades of the twentieth-century.  While far from oblivious to the putative progenitors of the preceding centuries – Moyn for instance, is exceptionally acute in his analysis – it finds them lacking in essential, determinative qualities.  Not least of the important but deficient movements is liberal nationalism, as expressed by the Atlantic Revolutionaries, and later, many anti-colonial ideologues and activists across Asia, Africa, and Latin America.  Nationalists, even liberal, or ‘internationalist’ nationalists, could never become human rights exponents because they held rights as a relationship between state and citizen.  The transnational and supra-state quality taken as definitive of modern human rights was either totally absent or at best hopelessly marginal and ephemeral.  Even revolutionaries who proclaimed, and from time to time upheld, ‘the rights of man’ were not engaged in human rights struggles, but operating in the distinct and older tradition of citizen rights (perhaps with a rhetorical side-dish of universalism – especially if French).  Too particularistic, too national, and too ‘internal’ – a negotiated settlement between citizen and sovereign, not a global crusade.

Of itself, the contest is not especially remarkable – though the battles have been quite pitched (notably the vigorous reception to Moyn’s book).  Academic debate can find ample substrate in more or less anything.  When it comes to a topic that necessarily orbits the fine parsing of ideas, and ideas of consequence, the surprise is more that the historiographical tranquility persisted for any period at all.  But the division itself seems to reveal more than the fissile nature of intellectual history.  The genealogy of rights is contested because the prevailing human rights order – insofar as it prevails – is a makeshift patchwork of transnational, international, and the national.  It spans from the shopworn but crucial notions of the rule of law, restraints on state power, and national democratic institutions, to the stunningly disruptive notion of international courts, supra-national individual petition, and a welfare state where economic and social dispensations are hardened into real obligations.  Chronometry on all of these ideas would have them dated in many temporal spots, at myriad locales.  To take one simple example, the UN High Commissioner for Human Rights already has four obvious points of origin – and three competing architects (from two continents).

Finding the origins of human rights is profoundly challenging because the origins are so obviously plural and interlaced.  If the rise of the human rights NGO is the exemplar of ‘modern’ human rights, then the 1970s is a very logical and compelling origin moment (though even then, the notion that it emerged de novo seems a little precarious). Equally, casting abolitionism as a ‘human rights movement’ overstates continuity – plenty of abolitionists were far from convinced about racial equality, universal suffrage, and even the softest early expressions of the welfare state.  Indeed, the origins of transatlantic feminism are a nice shorthand testament to the limits of abolitionism.  Precisely why the revisionist argument is so important is because it demands conceptual clarity about what was continuous, what was new – what, why, and how things were transformed.  Where were the limits?  How were these ‘rights’ understood by those who declared them?  How were they refashioned as they circulated?  Through its sheer insistence on the supra- and transnational elements as being definitive, it also raises questions about national human rights arrangements and protections, national citizens versus humans.  How does the national interact with the international?  Are rights charters for national citizens human rights documents?  (As a rule, even after the human rights revolution of the 1970s, it appears vastly preferable to be a citizen than a human when it comes to rights).  Instead of a long winding strand, the revisionist challenge invites historians to approach human rights as a stratigraphic section, superimposed layers, syncresis, and periodic sharp breaks.  For ardent universalists, this is uncomfortable work, if only because it necessarily unravels the (properly) exalted doctrine of ‘indivisibility’.  But believing in the normative value of indivisibility and universality doesn’t mean we can’t trace how the great and noble mess that is the modern human rights project was haphazardly put together, at different places, multiple times, for competing reasons.  Even timeless and universal ideas can have an intricate and contested history.

Dr. Roland Burke is an ARC fellow, and is currently undertaking a Discovery Project on the history of the arguments made against the 1948 Universal Declaration of Human Rights.  He is the author of Decolonization and the Evolution of International Human Rights (University of Pennsylvania Press, 2010).

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