The Power of a Declaration
Making human rights real.
Amartya Sen,
The New Republic
Wednesday, February 04, 2009
http://www.tnr.com/booksarts/story.html?id=c9062f2f-d6a6-4463-aa32-5d2f8c9af3d3
Amartya Sen teaches economics and philosophy at Harvard. He received the Nobel Prize in economics in 1998.
Nineteen forty-eight may have begun as an unsettling year, with the assassination of Mahatma Gandhi in January, but it ended on a positive note, when the Universal Declaration of Human Rights was adopted by the General Assembly of the United Nations in December. There was a reasoned vision of lasting importance underlying the declaration; it was momentous in its time, and it remains important today. Invoking human rights has become a major way of challenging inequities and oppression in the contemporary world, and in this development the Universal Declaration of Human Rights at the fledgling United Nations sixty years ago, swayed not least by the leadership of Eleanor Roosevelt, has played an indisputably significant and astonishingly constructive role.
The proclamation was made in a rapidly changing world, with many worries in people's minds all over the globe. The old order, characterized by centuries of colonialism, was crumbling, but the memories of imperial repression were still fresh. World War II had just ended, but the consciousness of Nazi and fascist atrocities was still vivid. The Cold War was just beginning: the Berlin airlift started in 1948 just before the Universal Declaration was adopted. Auden's The Age of Anxiety was awarded the Pulitzer Prize in the same year, and its well-chosen title perfectly captured the uncertainty and the dread of the day (and immediately inspired a symphony for piano and orchestra by Leonard Bernstein, which in turn led to a ballet by Jerome Robbins).
The Universal Declaration of Human Rights correctly noted that "disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind." It went on to make the resolute affirmation that the world would henceforth stand up in defense of "the inherent dignity" and "the equal and inalienable rights of all members of the human family," identifying these rights as "the foundation of freedom, justice and peace in the world." The document was an expression of strong feeling and powerful conviction, but it also made a significant contribution to the world of ideas. It is important to examine the nature of its intellectual departure, and the general issue of the bearing of radical ideas on practical human affairs (an issue I have tried to analyze in a forthcoming book called The Idea of Justice). We have to ask how a collection of words, which were committee-drafted but inspired by a powerful idea, has made a difference to the deliberations and actions of people across the world.
The Universal Declaration of Human Rights made its contribution to practical reason and global politics in four distinct ways. First, the Declaration took the firm view that human rights do not depend on legislation for recognition. People have these rights simply by virtue of being human. The contention here was that the acknowledgment of a human right is best seen not as a putative legal instrument, but as an important ethical demand--a demand that everyone should have certain freedoms irrespective of citizenship, nationality, and location. Such a recognition would lead to fresh legislation rather than await it. The Declaration championed the priority of morality to law. It constituted an open invitation to all to re-organize the world in such a way that the basic freedoms recognized as rights would actually be realized.
This understanding of human rights in pre-legal terms was in accord with the American Declaration of Independence, which had asserted in 1776 that it was "self-evident" that everyone had "certain inalienable rights." It was also in line with the French declaration, made thirteen years later in 1789, of "the rights of man" which similarly asserted that "men are born and remain free and equal in rights." Thus the U.N. Declaration has a long and venerable antecedence--but its non-legal view of rights had been persistently disputed, and even ridiculed, by those who believe that rights cannot have any meaning unless they are legally binding.
Jeremy Bentham dismissed the non-legal approach to rights almost immediately after the Declaration of the Rights of Man in 1789. In Anarchical Fallacies, written in 1791-1792, Bentham insisted that "natural rights is simple nonsense: natural and imprescriptible rights (an American phrase), rhetorical nonsense, nonsense upon stilts" (which, I assume, is some kind of artificially elevated nonsense). That dichotomy remains very alive today, and there are many commentators who regard the idea of human rights as no more than "bawling upon paper" (to use another of Bentham's derisive descriptions). In contrast, the U. N. Declaration is premised upon the rejection, implicitly but firmly, of such a view.
So what is the underlying argument here? Taking an exclusively legal view of rights, Bentham asserted that for a right to be "real," it had to be legislated. A right, he said, can only be a "child of law." This grants no room whatsoever for the public recognition of the importance of certain freedoms, and of the role of these ethically recognized freedoms and rights in providing motivation for fresh legislation. For if human rights are publicly supported claims that can contribute to the basis of legislation, then they function not as children of law, but rather as "parents of law."
The legitimacy of this way of understanding "moral rights" was well discussed by the great legal theorist H.L.A. Hart. Indeed, Eleanor Roosevelt, in her pioneering move, hoped that the provisions in the Declaration would serve as something like a template for legislation across the world. And to a considerable extent, this has occurred both in national legislation and through regional "human rights laws." The European Convention for the Protection of Human Rights and Fundamental Freedoms and other such conventions and laws have clearly been inspired by the vision that the Universal Declaration affirmed in 1948. And the impact of the declaration did not stop there.
The second intellectual innovation of the Universal Declaration concerns the instruments that can be used to pursue the ethics of human rights. Legislation need not be the only way of advancing these rights. Even the fulfilment of liberty-based rights, the so-called "first generation rights" (such as religious liberty, freedom from arbitrary arrest, the right not to be assaulted), on which the eighteenth-century declarations concentrated, depends not only on legislation but also on public discussion, social monitoring, investigative reporting, and the functioning of the media as a forum for news and comments. The acknowledgement of a human right can serve as a "parent" not only of law, but also of many other ways of advancing the fulfillment of that right. And so the Universal Declaration has inspired much more than new legislation, since a valued freedom can be advanced in many different ways of which the legislative route is only one. For example, unlike the Indian and South African Human Rights Commissions, which are recognized in their respective national laws, the Pakistan Human Rights Commission is basically just an NGO--but under the visionary and courageous leadership of Asma Jahangir, I.A. Rehman, and others, it has been remarkably effective in identifying and resisting violations of human rights by means of media discussion as well as legal proceedings, and in defending vulnerable persons, including ill-treated women and religious minorities.
The third point to note is that the Universal Declaration of Human Rights went well beyond the first generation rights, and included political, social and economic rights in various forms. In this way it departed from the confines of the American Declaration of 1776 and the French declaration of 1789, and expanded upon them. In this respect, the Universal Declaration reflected the radical transformation of social thought in the changing world of the twentieth century. The contrast is sharp indeed. It may be recollected that even Abraham Lincoln did not initially demand political and social rights for the slaves-- only some rudimentary rights, concerning life, liberty, and fruits of labor. The U.N. Declaration includes a much larger list of freedoms and claims under its protective umbrella. This includes not only basic political rights, but the right to social security, the right to work, the right to education, protection against unemployment, the right to join trade unions, and even the right to just and favorable remuneration.
Some critics see this expansion of the domain of rights as quite absurd. How can it be the case, they argue, that these social and economic claims are rights, given the fact that it may be infeasible to satisfy them universally, at least without radical changes in the world? Is it not a basic premise of practical reason that there can be no enunciation of an "ought" without a corresponding "can"? I would argue that this line of reasoning is based on a misunderstanding of the content of what an ethically acknowledged right must demand. Just as utilitarians pursue the maximization of utilities without their approach being compromised by the fact that there always remains scope for further improvement in utility achievements, human rights advocates want the recognized human rights to be maximally attained: the viability of this approach does not crumble merely because further social changes may be needed to make more and more of these acknowledged rights fully realizable and actually realized. The affirmation of human rights is a call to action--a call for social change--and it must not be hostage to pre-existing feasibility.
Indeed, if feasibility were a necessary condition for people to have a right, then not just the social and economic rights but all rights--even the right to liberty--would be nonsensical, given the infeasibility of ensuring the life and the liberty of all against violation. We cannot prevent the incidence of murder every day. Nor, with even the best efforts, can we stop all mass killings, as in New York on September 11, or in London, Madrid, Bali, and more recently in Mumbai. The confusion in dismissing claims to human rights on grounds of incomplete feasibility is this: a not fully realized right is still a right, calling legitimately for remedial action. Non-realization does not make a right a non-right. Quite the contrary, it motivates further social action. And this is exactly the way in which the idea of human rights has been invoked, often with considerable effect, since the Universal Declaration sixty years ago.
The fourth remarkable feature of the Universal Declaration is its universal coverage: it applies to everyone in the world, without exception. This was a serious issue in the interpretation of rights following the American Declaration of Independence, since independence was fought and won on behalf of all even as the application of many of the rights remained for a long time confined to white people. Indeed, it is the non-inclusive character of the American Revolution that led Mary Wollstonecraft, the radical thinker, to make an enigmatic remark about Edmund Burke, who supported the American Revolution: "On what principle Mr. Burke could defend American independence, I cannot conceive." What could the revolutionary Wollstonecraft have meant in criticizing Burke, in many ways the father of British conservatism, for his support for the American Revolution? She was of course talking about the dubious viability of a human right from which an entire American population, the population of slaves, was excluded. The U.N. Declaration speaks up powerfully against any kind of double standard, and it is in many ways the watershed event in the recognition that universal coverage is essential for global ethics in the contemporary world.
The Universal Declaration has helped to establish a general conception of human rights of remarkably wide reach and effectiveness in an anxious world tormented (but perhaps not tormented enough!) by memories of terrible transgressions in the recent past and inspired by the hope of "freedom, justice and peace" in the future. Movements for civil rights, for democratic entitlements, for social equality, for economic justice, for equal treatment of women, for rights of minorities, which have powerfully developed across the world in the second half of the twentieth century, and which continue today, have been drawing on a capacious vision of which the Universal Declaration was the trailblazing expression, in championing the dignity and rights of all human beings.
That vision has led to fresh legislation (as Hart reasoned that it would), but also to broader interpretations of existing legal provisions, in this way taking us beyond older understandings of constitutions and laws. It has also led to activist agitations, to powerful advocacies for the weak, and to a growing stream of public reasoning and resolve in different parts of the world--and all of this has had a significant impact on public policies and social conventions. The vision has helped to inspire the dedicated work of many people in Human Rights Watch, Amnesty International, OXFAM, Save the Children, Médecins Sans Frontieres, Action Aid, and other such global institutions, as well as initiatives originating in the developing world, such as the Grameen Bank and BRAC set up in Bangladesh. It has also encouraged less organized and more spontaneous groups of concerned people--neighbors and non-neighbors--to defend the basic freedoms of others.
The long reach of the Universal Declaration can be seen in the diversity of struggles in which its approach and its reasoning make an important contribution. The grand vision of a world with universal rights may be detected in the fight against comprehensive violations by military governments in Latin America yesterday and in Burma and Sudan today. It can be seen as providing inspiration for movements for civil and political rights in China. It has played a role in challenging the policy of the American government to incarcerate alleged "enemy combatants" without recourse to civil legal procedures, and in agitating for the fair treatment of immigrants in European countries. Its influence can be found in the championing of the rights of ill-treated women in societies with deep gender inequality, and in the fight against persistent hunger in many parts of the world, including in booming but still grossly unequal India. It contributes to the battle against torture anywhere in the world, and to the gathering momentum against medical neglect and epidemics with known remedies, which are increasingly seen as violations of human rights.
One indication of the impact of the Universal Declaration is the extent to which authoritarian governments fear it. Just recently, as the Human Rights Defenders Center in Tehran, led by the Nobel laureate Shirin Ebadi, was publicly celebrating the sixtieth anniversary of the Universal Declaration of Human Rights, the Iranian police raided its offices, with the aim of closing down the organization indefinitely. And at about the same time, the Chinese government arrested a number of human rights activists who commemorated the anniversary of the Universal Declaration of Human Rights by making various immediate demands. And so the Universal Declaration of Human Rights, with its powerful reasoning, continues to serve as strong ammunition for social movements and agitations that defend the lives and freedoms of the ill-treated, the excluded, the violated, and the wretched. The force of that visionary affirmation is still empowering. Its work is not yet done.
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