The Rights Revolution (6 page)

In this sense, that old reactionary, Joseph de Maistre, was wrong. We have met Man. He is us. Human rights derive their force in our conscience from this sense that we belong to one species, and that we recognize ourselves
in every single human being we meet. So to recognize and respect a stranger is to recognize and respect ourselves. As paradoxical as it may sound, having an intense sense of one’s own worth is a precondition for recognizing the worth of others.

On the other hand, recognizing other people as human is not easy. Sometimes the humans in question may be violent, gross, abusive, crazy, or just so plain different in language, values, and culture that it is genuinely hard to see what we do have in common.

Let us also admit that there is nothing especially natural about this kind of human recognition, about the feeling that the human species is one. Historically speaking, this idea, the work of monotheistic religions and natural law, is a rather recent addition to the moral vocabulary of humankind. This universalism has had to make its way into our hearts against a much more intuitively obvious notion: that the only people we should care about are people like us.

In
Bleak House,
Charles Dickens left us an immortal satire of the good philanthropic lady of mid-nineteenth-century England, Mrs. Jellyby, who never stopped campaigning for the welfare of children in Africa. Her face had the faraway look of someone always focused on distant wrongs. Dickens’s problem with this charitable lady, of course, was that she shamefully neglected her own children.
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We all know people who combine high-flown commitment to human rights with lowdown disregard for all the actual human beings who stand in their way. It seems obvious that charity, not to mention
decency, begins at home, and that we have good reason to put our primary moral emphasis on particular duties to those nearest us.

Yet our commitments are connected — ever-widening circles that begin with those who are close to us and move outwards to embrace the needs of strangers. Human-rights commitments are on the outermost arc of our obligations, but they can be only as strong as our innermost commitments. Believing fiercely in the value of those we love is the very condition for believing in the value of those farthest away. Universal beliefs that do not draw their fire from the passion for particular people are not going to stay alight for long.

To say this is to commit ourselves to a special way of thinking about the relationship between human equality and human difference. In this way of thinking, human equality actually manifests itself in our differences. What we have in common as human beings is the very way we differentiate ourselves — as peoples, as communities, and as individuals. So it is not the naked body we share in common, but the astoundingly different ways in which we decorate, adorn, perfume, and costume our bodies in order to proclaim our identities as men, women, members of this tribe or that community
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To be forced to strip naked before a cold-eyed stranger is a terrible experience. Human beings clothed, arrayed, disguised even, are the ones who have dignity, not human beings stripped and bare, hiding their shame with their hands. To be naked before a stranger is to be deprived of decency and also of agency. Of course,
nakedness can awaken pity, and this is a very basic form of human recognition, but it is also the most vulnerable form, for it implies the weakness and fragility of one party. We know from historical experience that when persons depend for their lives on the pity of others, they are uniquely defenceless.

In the destruction of European Jewry in the Holocaust, one of the essential techniques of dehumanization was to strip everyone of their possessions, their clothing, their glasses, even their hair. A concentration camp could be seen as a demonic machine whose purpose was to take historical individuals in all their particularity and pound them on the anvil of suffering into pure units of humanity. When these pure units of humanity then appealed to the pity of their captors, they discovered that their captors regarded them as so much meat. When those responsible for this crime had reduced each individual to the terrible equality of nakedness, they could do anything to their victims that they wished. In such a state of equal and radical humiliation, victims would even go unresistingly to their own deaths.

Not all went unresistingly, of course, and those who survived best were those who held on, against all the odds, to such fragments of personality, faith, humour, or intransigence that distinguished them from the horrible equality of all the others. This is not to say that this tenacious insistence on difference alienated them from the rest. Rather, it was by holding on to their individuality that people pulverized by suffering could acknowledge others, care for them, and resist together as best they could.
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The function of human rights, then, is not to protect the abstract human identity of nakedness, or to express in juridical language our instincts of pity for denuded human suffering. Its function is to protect real men and women in all their history, language, and culture, in all their incorrigible and irreducible difference. The purpose of human rights is not to make those in danger the wards of conscience of those in zones of safety, but to protect, defend, and restore the agency of the defenceless so that they can defend themselves.
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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.
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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.
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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.
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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.
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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,
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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.
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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 was 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.