Human Rights as Resistance




    What is the point of human rights? Today we are inundated with documents and instruments that purport to incorporate human rights: human rights law (obviously), but also rights-based development agendas, school curricula, workplace policies and procedures, partnership agreements between local authorities and civil society organisations, etc. As rhetoric, human rights easily serves as self-promotor: human rights is what you and your community are good and others not. But what are human rights about? Are they ideals or practical action guidance? And should we worry when human rights turn into the language used by states to talk about their own virtues? What do we need human rights for?

    “Human rights” is a composite concept. In philosophical and ethical discussions, the question how to understand the first part of it – human – is unavoidable. How should we understand the “human” in “human rights”? A common answer – from philosophers, ethicists, politicians, and practitioners – is that human rights are rights that one holds simply by virtue of being human. Nothing else needs to be known about somebody in order to know what their human rights are, other than the fact that they are human. This answer is meant to be simultaneously excluding and including. It excludes non-human beings from the circle of rights-holders; it includes all human beings in the circle of rights-holder, regardless of what else is true about them. This is fine as far as it goes, but on closer inspection is more of a restatement of the question than an answer to it. Or maybe it is the wrong question. What we need, perhaps, is an answer to what reasons there are – if any – to regard the “human” as a carrier of significant meaning in the context of rights.

    Saying that human rights are rights that humans hold simply by virtue of being human is superficially an empty formula but one suspects, with good cause, that there is something lurking implicitly in the background: the belief that there is something morally special about human beings. This is a common view, whether we are talking about rights or not, and arguments for it come in different shapes. One is an ontological argument about a human state of being, a human essence or moral standing – dignity – built into human nature itself. This idea opens the preamble to the Universal Declaration of Human Rights1, but is hard to defend without theological props. Outside of a theological discourse, it just looks arbitrary.

    A demystified variation of it and a widely held view (appearing for instance in the first article of the Universal Declaration of Human Rights) it that human beings are morally distinctive because of certain intellectual and emotional capacities that we simply attribute to humans but not to non-humans: reason, empathy, and self-reflection are held to be specifically human capacities. We know that plenty of human individuals do not in fact have or display these capacities, but that does not alter the fact that we regard them as typical of the human but not of the non-human being. But even if this were true – something which research into animal cognition gives some reason to doubt – it is not obvious why these capacities and not others – like capacities for pain and fear – would ground rights or, more generally, why they would make anyone particularly protection worthy or morally dignified.  

    One is left wondering if all the effort that goes into arguments for why humans should be more morally precious than other beings on the planet is just self-interest in disguise. It also seems unnecessarily cumbersome. One is reminded of the Scottish Enlightenment thinker David Hume who in his 1748 essay Of the Original Contract2 criticized philosophers who used the complicated and easily deflated notion of a social contract to explain and justify the state: if we agree that people appreciate a life of freedom and safety, and that freedom and safety are best protected in a political society with popular participation, legal protection of life and property, and institutions for peaceful resolution of conflicts, then you have all the arguments you need. Why bother with the idea of an original contract that everyone knows is fiction, when we have all the arguments we need without it?

    Hume was, for similar reasons, sceptical of the early-modern idea of natural rights. His frugal approach to what is needed in order to make moral arguments can be transferred also to the human in human rights. If we agree – and we seem to – that there are certain things that under normal circumstances are so significant for quality of life and reasonable conditions that fairness requires that everyone has access to them (for now we don’t need to agree on what those things are, only that there are such things), what more do we need? What would the idea that there is something morally special or elevated about humanity or human nature add to that argument? It certainly would not replace the need for political-ethical argumentation about what a just society might look like or which injustices that count as rights violations. Ironically and notoriously, promoters of the idea that humans have rights simply by virtue of being human have so for not been able to agree what those rights would be. The idea itself does not seem to generate any compelling reasons for believing anything in particular about anything else. So, should we get rid of it? Maybe, but let us  consider something else first.

    If “human rights” is a composite concept, then both components should matter for what it is a concept of. At present, the component “rights” is not our main preoccupation, so I will be content with saying that rights can be understood as a kind of outstanding claim that can activated when needed and that carry legitimacy or justification for some compelling reason (we don’t need to specify what those reasons are: a contractual obligation, a strong need, a reasonable expectation, or something else) in relation to an agent who is at least in principle identifiable and who has a responsibility or an obligation to act so as to secure that right. Maybe this seemed unnecessarily complicated, but the point is to emphasize that rights have a certain form and that they presuppose a relation. This matters for our present concerns for a particular reason: a view of human rights that emanates out of seeing the human in human rights as a matter of moral exceptionalism are more apt for construing rights as inherent human attributes than as relations between agents. What does that do in practice?

    Grounding human rights in something that allegedly has to do with human nature or characteristics is a preoccupation that risks diverting attention away from the question that we have reason to ask first. What is the point of the concept of human rights? What job do we want or need it to do?

    In 1999, the philosopher Elizabeth Anderson asked what the point of equality is.3 She claimed that the philosophical discussion about equality had lost touch with the political circumstances that make the question of equality important. In lofty aloofness, celebrated and widely read philosophers like Ronald Dworkin would engage in thought experiments about shipwrecks and auctions, saying that a distribution of resources satisfies reasonable criteria of equality when no one has reason to envy what others have as if the problem with inequality is something petty and emotional about holding grudges (“What is equality?”, 19824) The equality debate turned into an introverted exchange about compensation for bad luck within which it made good sense to focus on whether equality requires that people be compensated by the state for having expensive tastes or a grumpy disposition, as if no meaningful distinction can be made between injustices and trivial frustrations (e.g. G. A. Cohen, “On the Currency of Egalitarian Justice”, 1989 5). Is that what we need philosophy to do? The point of equality, according to Anderson, is political. It is to end oppression and create a community of equals. In other words, equality arises as a question of political morality because oppression and subordination exist in the societies where people live their lives. But in the thought experiments often used in ideal theories of justice, there is no oppression or subordination since such complications are not part of the abstraction, just preferences and interests (on ideal theory, see Valentini 20126).

    For a concept of justice to be able to provide insights and engender principles of action fit for actually existing injustices, it needs to proceed from the world in all its messy complications lest we risk abstracting away from situations over which we need to critically theorise. This runs counter to a common view in philosophies of justice, exemplified above, which is that a theory of justice is a kind of normative specification of what a just society looks like and so should be developed independently of actual empirical circumstances. The theory is then applied back onto those empirical circumstances that were deliberately ignored in the development of the theory. The point of the exercise is to provide an ideal that can be used to assess if, to what extent, and why the workings of actual societies or perceived problems in the world count as injustices or not. I do not dismiss ideal theories of justice. At their best, like the one famously developed by John Rawls in A Theory of Justice (1971), they provide sharp tools for analysis and methods for challenging taken-for-granted assumptions. But the risk is losing normative sight of societal problems that turn out to be crucial for people’s lives but which the theories are not designed to say anything about.

    Let us look at human rights again. If the foundation of human rights – what it is that explains them – is a conception of the human person (or what is seen as typically or paradigmatically human) and whatever appears protection worthy given that conception of the human person, then the orientation and limits of human rights and what human rights that are believed to “exist” will be shaped by that conception rather than by the complexity of violations, burdens, disadvantages, hopes, and aspirations that people in various social and political situations have and the relations they stand in to others.

    It has been a strong ideal in analytical philosophy to think of political theory as an a priori endeavour – that is, independent of empirical circumstances and observations. With this comes the belief that empirical social and historical research – including the varied history of political thought itself – are largely irrelevant for philosophical endeavours. For the philosophy of human rights there is an irony here, since historical arguments are often invoked in support of whatever conception of human rights one favours. Philosophers like James Griffin presuppose a stable tradition of thought about human rights – a pre-modern conceptual world of natural rights as inherent to human personhood – out of which “our” concept allegedly has evolved organically. (For a detailed discussion, see my “On the Use and Abuse of History in Philosophy of Human Rights, 20167). But this essentialist ontology makes for an abstracted, idealized, and partly false history.

    As historian Lynn Hunt has shown, for radical philosophers of the revolutionary period in the late 18th century, the concept Rights of Man – les droits de l’homme – expressed a political claim for civic participation, a demand for freedom from oppression and subordination, grounded in a moral principle of equality.8 These thinkers and public intellectuals – Thomas Paine, Mary Wollstonecraft, Marquis de Condorcet, Honoré Mirabeau among them – were indeed convinced that the human person possesses capabilities of reason and judgement that are crucial for their status as moral beings, but the political implication of that was to provide a solid ground for demands for freedom from oppression and subordination, in the name of equality of men and citizens.

    Among these 18th-century radical defenders of rights, the feminist Mary Wollstonecraft was the most consistent in her egalitarianism. The point of rights being human rights was, for her, the universal moral claim to equality that follows logically: women’s right to freedom from patriarchal tyranny is an instance of a general right of all to freedom from oppression. Inequality is a social fact; equality is a natural moral principle. All hierarchies are human constructions, elevating some to be arbitrarily benefited at the cost of others and through no merit of their own. Such hierarchies are oppressive and by the same token violations of right. Importantly, this includes economic hierarchies: the destructive dynamic of rich and poor – the rich who cling to their possessions and privileges and the poor who pay for it all with their labour and taxes – is unjust and oppressive. Rights violated in such asymmetrical relations are human rights. And that capacity for intellectual and moral agency that is attributed to humans – what she refers to as true happiness – is only possible among equals. Society itself is precluded if people do not stand in relations of equality to each other. “Among unequals there can be no society”, as she put it in A Vindication of the Rights of Men, written 1790 in defence of the French revolution. (See also my “The Primacy of Right. On the Triad of liberty, Equality and Virtue in Wollstonecraft’s Political Thought”.9

    Human rights arise as an issue because of the prevalence of oppression and subordination in the societies where people live their lives and on the organisation of which their opportunities as well as their freedom depend. Abstracting away from the reality of oppression therefore makes the matter of human rights incomprehensible. If there is a long history worth preserving of philosophical thinking about the rights of humanity, it is a history of resistance to abusive power, not a history of human exceptionalism.

    It is hard to deny that a philosophy of human rights where the human stands for such a moral exceptionalism figures in the explanation of climate change and the destruction of our habitat that we have so willingly engendered. The last thing the planet needs is a rights philosophy that panders to man’s view of himself as the moral aristocrat of the world.