The Social Demands of Human Rights
Amartya Sen, Master of Trinity College, Cambridge, was awarded the Nobel prize for economics in 1998.
Cambridge -- In view of the apparent rift between America and France in the global politics of today, it is perhaps important to remember that many of the foundational political ideas in the contemporary world are specific products of Franco-American collaboration. This applies particularly to human rights, one of the most powerful social concepts, the force of which is widely invoked for a great range of causes, varying from resisting torture and arbitrary incarceration to demanding the end of hunger and of medical neglect. The idea of "unalienable rights" of all human beings was stated in the Declaration of Independence in America in 1776, and it found robust support in the French declaration of "the rights of man" in 1789, which asserted that "men are born and remain free and equal in rights."
The Franco-American position received sharp denunciation in the writings of leading British intellectuals, including Jeremy Bentham and Edmund Burke. The foundational belief, aired at that time both in America and in France, that any human being has certain basic rights by virtue of his or her humanity appeared to Bentham to be "simple nonsense." In a pamphlet called Anarchical Fallacies, written shortly after the French declaration of the "rights of man," Bentham went on to argue that the notion of "natural and imprescriptible rights," which he described as "an American phrase" that had crept into French thinking, was "rhetorical nonsense, nonsense upon stilts" -- an artificially elevated absurdity. "Right, the substantive right, is the child of law," Bentham insisted. "From real laws come real rights; but from imaginary laws, from ‘law of nature,'" we could get nothing other than just "imaginary rights."
That debate continues today, even though the idea of human rights has gained much recognition and prominence over the last six decades. The Universal Declaration of Human Rights made by the United Nations in 1948 can be seen to be much in line with the 18th-century Franco-American defense of the existence of rights by virtue of a person's humanity. This approach has been strengthened through various codifications across the world inspired by the idea of human rights (for example, the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in 1950), but also through the general invoking of the moral appeal of human rights in public debates and discussions. Powerful advocacy of that perspective comes from many activist organizations in the civil society, including prominent NGOs (such as Human Rights Watch, Amnesty International, OXFAM, Medecins Sans Frontieres, Save the Children, CARE, Action Aid and others). However, the view that human rights must somehow be parasitic on the laws, and would be nonsensical in the absence of legislation and appropriate institutionalization, is also widely believed and much championed. Many still see the idea of human rights as no more than "bawling," or shouting, "upon paper."
Two distinct issues are in need of some clarification here. First, human rights may inspire legislation, and this can happen precisely because of the moral force of human rights that precedes legislation. A great many acts of legislation and legal conventions (such as the European Human Rights Act of 1998) have clearly been inspired by a belief in some preexisting rights of all human beings that call for an appropriate legal status. In this sense, human right is the "parent" of this kind of law, rather than being a "child of law," to use Bentham's limited diagnosis.
Second, the idea of human rights is used in several different ways, which may or may not involve any legislation. Indeed, the recognition that was given to human rights in the Universal Declaration of Human Rights of the United Nations had an impact in the dialogue of politics that was not dependent only on the legislation it ultimately inspired. There has been a sequence of international declarations (from the International Covenant on Civil and Political Rights to the Declaration on the Right to Development) motivated by the idea that the ethical force of human rights is made more powerful in practice through giving it social recognition and an acknowledged status, even when no legal enforcement is instituted.
Going beyond the influence of recognition, there is also the effectiveness of organized advocacy, urging compliance with certain basic claims of all human beings that are seen as human rights. The "monitoring" of violations of these rights through "naming and shaming" can have its own effectiveness. Furthermore, when some identified human rights acquire legal status through legislation, good enforcement of the relevant laws may also be much assisted by monitoring and public pressure. Indeed, even when the agents of monitoring do not have any special legal status, they can still make a big difference to political, social and administrative practice through the combined use of public disclosure and debating. For example, unlike the Indian and South African human rights commissions, which are recognized in the respective national laws, the Pakistan Human Rights Commission is basically just an NGO, and yet it has, under the visionary and courageous leadership of Asma Jahangir, I.A. Rehman and others, been impressively effective in identifying and defending human rights, including those of religious minorities and ill-treated women.
There is, in addition, good reason to resist the temptation of presuming that if a human right is important, then it must be proper to try to legislate it into a precisely specified legal right. Recognizing and defending a wife's "human right" to be consulted in family decisions, even in a traditionally sexist society, is extremely important, and yet it may not be entirely sensible to make this human right into a "coercive legal rule" (perhaps with the result that a husband should be taken in custody if he were to fail to consult his wife). While many of the demands of gender equity require new legislation, they also call for more public reasoning and more social recognition. That point was not missed by Bentham's fellow Briton Mary Wollstonecraft in The Vindication of the Rights of Women, published in 1792, precisely when Bentham was launching his attack on human rights as "nonsense on stilts."
The contemporary world can learn much from the discussions of human rights and social ethics more than 200 years ago. Tom Paine, in his work "Rights of Man," which was published at the same time as Wollstonecraft's book, enhanced -- as she did -- the understanding of the social dimensions of human rights. At a broader and more conceptual level, so did Immanuel Kant, when he explained in The Critique of Practical Reason, also published at about the same time, that while some duties we have toward others may take the precise form of "perfect obligations," others less exactly identified may still have much moral importance and practical relevance, in the form of "imperfect obligations" to help others threatened by deprivation or insecurity.
Human rights belong to that capacious realm. The underlying social ethics have legal implications, but go much beyond them. That basic recognition is no less important in the troubled world of today than it was in the 18th century.