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The Nature and Basis of Human Rights
By David Little, United States Institute of Peace
[From Gene Outka and John P. Reeder, Jr. (eds.), Prospects
for a Common Morality (Princeton: Princeton University Press,
1993), pp. 73-92.]
Introduction
Human Rights and Moral Discourse in the Contemporary
International Community
Defining and Justifying Human Rights
Concluding Remarks
Introduction
We are currently confronted with two conflicting sets of claims
and beliefs about our contemporary spiritual and intellectual
condition. On the one hand, we are told we live in a "post-modern"
world in which universal standards of truth and morality, standards
that are believed to be applicable and justifiable independent of
particular cultural or religious traditions, are simply unavailable.
For example, Alisdaire MacIntyre informs us bluntly that "human
rights are fictions." That is so, he says, because there are no
universally convincing reasons for believing in human rights, just as
there are no such reasons for believing in witches or unicorns.
MacIntyre goes on to argue, according to what has become a fairly
fashionable line of thinking, that currently "the language of
morality is in [a] state of disorder."2 That is because the
social and cultural contexts in which a common moral vocabulary once
may have made sense, at least for Westerners, have virtually
disappeared. We "possess...simulacra of morality, we continue to use
many of the key expressions. But we have--very largely, if not
entirely--lost our comprehension, both theoretical and practical, of
morality."3 Lacking common grounds, moral disputes are consequently
interminable because they are irresolvable. What is true of us in the
West in our encounters with one another, is only amplified in the
international community, as MacIntyre's comment about human rights
makes clear.
From a somewhat different, though supplementary, perspective,
Richard Rorty contends that torturers, in inflicting pain on innocent
people, are not betraying some essential principle of humanity, for
there are no such principles. Rorty is sure that "there is nothing
deep down inside us except what we have put there ourselves, no
criterion that we have not created in the course of creating a
practice, no standard of rationality...that is not obedience to our
own conventions."4 If we should come to affirm a prohibition against
torture, it will be because we find it to be "pragmatically"
justified, at least for our purposes, whatever they may happen to
be.
Moreover, this general approach has its religious proponents. The
redoubtable Stanley Hauerwas, for example, vigorously attacks the
idea that there exists any usable "universal ethic grounded in human
nature per se."5 In some ways following MacIntyre, Hauerwas believes
that any effort to make something important of assertions about
universal human rights "fails to appreciate that there is no
universal morality, but that in fact we live in a fragmented world of
many moralities." Christian ethics, he says, is not to be commended
to anyone "with the claim that we can know the content of that ethic
by looking at the human."6
On the other hand, some advocates and defenders of human rights,
appear to suggest that there are certain moral beliefs and
concomitant claims about the world that are universally true and
universally justified. In the words of Patricia Derian, Assistant
Secretary of State for Human Rights and Humanitarian Affairs during
the Carter administration: "Electrodes applied to the gums shatter
teeth in the same way in Manila as in Moscow. Cruelty knows no
[distinctions]...; the pain is universal, the demeaning and
degrading of individuals is as hateful to those in the Peoples
Republic of China, as it is in South Korea."7
Or, Leszek Kolakowski, the Polish philosopher, writes: "When we
extend our generous acceptance of cultural diversity...and aver,
e.g., that the human rights idea is a European concept, unfit for,
and [not] understandable in, societies which share other
traditions, is what we mean that Americans rather dislike being
tortured and packed into concentration camps but Vietnamese, Iranians
and Albanians do not mind or enjoy it?"8
In the same spirit, the legal philosopher, Ronald Dworkin, in a
moving review of Nunca Mas, the report on the practice of
torture by the Argentine military from 1976-1979, recommends a
universal "taboo against torture." "The world needs...a settled,
undoubted conviction that torture is criminal in any circumstance,
that there is never justification or excuse for it, that everyone who
takes part in it is a criminal against humanity.... Torture cannot be
surgically limited only to what is necessary for some discrete goal,
because once the taboo is violated the basis of all the other
constraints of civilization, which is sympathy for suffering, is
destroyed."9
As between the two sides, I stand unflinchingly with the second
group, with those who suggest that there are universal, and even
"objective," moral standards (and concomitant beliefs) that are in
part associated with existing human rights norms. In what follows, I
shall try to provide the beginnings of a rationale for taking up such
a position. There are two parts to this rationale: First, I shall
make some purely descriptive or, broadly speaking, sociological
comments about the current place and function of human rights norms
in the international community. Here I shall try to show that the
"fragmentariness" of moral discourse, which certainly does exist in
our world, is a more structured affair than MacIntyre and Hauerwas
seem to understand.
Second, I shall address what is, for philosophical purposes, the
heart of the matter, namely, questions of the definition and
justification of human rights.10 Here I shall try, no doubt at great
risk, to rehabilitate a version of intuitionism. However unpopular
that view is these days, my suggestion will be that part at least of
what intuitionists were trying to get at better conforms to our
considered reactions to certain human rights statements than other
more fashionable views do.
Human Rights and Moral Discourse in the Contemporary International Community
On a purely sociological or descriptive level, certain truisms
about the role of human rights in international affairs are hard to
square with claims about the radical fragmentation of moral language
in our current experience. To quote two international relations
observers: "The idea that human beings have rights as humans is a
staple of contemporary world politics."11 "The international polity
is changing, and global political processes now exist that can no
longer be accounted for strictly in terms of interstate
politics...The internationalization of human rights concerns is part
of this broader process...[T]o date the notion of a world
society constitutes not a framework within which moral claims can be
met, but a vocabulary within which [those claims] may be
articulated". 12
Four things need stressing. First, there should be no controversy
over whether human rights language is moral language. In face of
Article 1 of the Universal Declaration--that "All human beings are
born free and equal in dignity and conscience and should act toward
one another in a spirit of brotherhood," or of the Preamble to the
Convention against Torture--that "the equal and inalienable rights of
all members of the human family" "derive from the inherent dignity of
the human person," there can be no reasonable doubt that these
statements meet the standard criteria of morality: They are warrants
for prescribing authoritative action, or action that takes priority,
and is regarded as legitimate, in part for considering the welfare of
others.13
For example, there can be no doubt that human rights, as expressed
in the international instruments, are understood as distinct from and
prior to law. As the Preamble to the Universal Declaration puts it,
"human rights should be protected by the rule of law." That is, human
rights are here understood to constitute an independent standard for
formulating, interpreting, and criticising law, and thus they are
assumed to exist as a basis for moral appeal, whether or not they are
in fact legally enforced in given circumstances.
Second, while it is true that under present international
conditions by no means all human rights claims are satisfactorily
accommodated, nor all articles of the declarations and conventions
uniformly interpreted and applied, it is hard to ignore the growing
prevalence and significance of a common vocabulary in which claims
from very different cultures are similarly articulated.
People who deny these realities have not been paying attention to
their newspapers. The fact these days that so much international
attention is given to the petitions of human rights advocates all
over the world--in the press, in diplomatic discussions, and in the
reports of monitoring groups like Amnesty International, Human Rights
Watch, Helsinki Watch, etc.--attests to the remarkable momentum with
which human rights are being internationalized.
What else are we to make of the expression of aspirations and
demands, all couched in the shared vocabulary of human rights, that
is occurring in so many diverse national settings? It would be
impossible to understand the revolution now transpiring in Eastern
Europe and the Soviet Union apart from the language and categories of
international human rights. Protesters passionately adopt the same
language and categories to articulate their grievances in Tibet,
Iran, Kuwait, Israel and the Occupied Territories, the People's
Republic of China, South Africa, Honduras, and the Republic of Korea
to name few places recently in the news.
Third, it must of course be admitted that there does exist an
important degree of "fragmentation" and "disorder" in regard to the
moral discussion of human rights. There are important disputes and
differences of opinion in this area both within nations as well as
among different cultural traditions, as the controversy several years
ago over the Salman Rushdie affair exhibits.14
However, it is no longer accurate, if indeed it ever was, to
portray this fragmentation as disproving the existence of a deeply
embedded common vocabulary. To a significant degree, it is the human
rights vocabulary itself that defines and structures the terms of the
debate and the issues that are in dispute throughout the world.
The prominent and familiar controversies over "individual rights,"
ascribed without regard to race, creed, or color, versus "collective
or communal rights," ascribed on the basis of race, creed or color,
have become a common problem within the national and cultural
experience of nations across the globe largely because of a rather
ironic set of circumstances: Many of the nations where these
controversies now rage sought the right to pursue their own
indigenous communal traditions on the basis of urgent appeals to
universal human rights, rights that are premised on the principle of
non-discrimination.15
The right to political self-determination, for example, was
characteristically demanded in response to colonial domination, a
system perceived to have produced massive human rights violations,
including extensive political and economic discrimination on grounds
of race, ethnicity and religion. Against that background, the new
nations typically adopted modern constitutions formally promising
that violations perpetrated under colonialism would not be continued,
and usually instituting judicial and political systems designed
accordingly.
On the other hand, the new nations understood it to be part of the
right of self-determination to create societies in keeping with
particular cultural and communal traditions. In advancing the
"communal rights" of particular groups, these traditions were not
altogether consonant with universal human rights standards,
especially as regards the role of race, ethnicity and religion as
determinants of political and economic power.
Thus, a wide variety of nations face a common dilemma that is
created in large part by the human rights environment that produced
them: How are nations, who themselves out of their own experience,
are in part, at least, committed to universal, non-discriminatory
standards, to reconcile or harmonize those standards with
countervailing indigenous standards? Whatever compromises are
respectively worked out, it is unlikely, as a simple sociological
datum, that these nations will be able to escape the grip of the
human rights vocabulary that is, for very important historical
reasons, now embedded in their collective consciousness.
Fourth, there is one other crucial reason, in addition to the
circumstances of anti-colonialism, that helps to account for the
current pervasiveness of a common human rights vocabulary. It is what
we might refer to as the lesson of World War II, for it was as a
consequence of that event that the human rights movement was
intitiated worldwide.
The war produced a new and profound anxiety on the part of people
in every corner of the globe affected by the war concerning the
modern potential for political pathology. Specifically, the
practices of fascism were taken to reveal what a system of arbitrary
force amounts to, a system administered precisely according to the
disciminatory criteria of race, creed, and color.
It occurred to large numbers of people that the afflictions of the
fascist countries were in some respects characteristic of the modern
nationalist state. Given the appropriate conditions, the same kind of
arbitrary force might easily be employed elsewhere, with similarly
devastating results. Clearly, the spectre of perpetuating the kind of
political pathology perceived in World War II gave major impetus to
the campaign to design an international system of human rights as
"Hitler's epitaph." The widespread apprehension in great part
explains the remarkable international consensus achieved in 1948 in
adopting the Declaration, and, later, the two major conventions on
civil and political rights, and on economic, social and cultural
rights.
On the one hand, the dramatic expansion of the number of modern
constitutional regimes in the post-war period helps to account for
why the language of constitutional protections and human rights has
resonated so widely and so persistently. On the other hand, it is the
dramatic imbalance between the technology of force and the
institutions of restraint that in large measure explains the urgency
of the current appeal in favor of strengthening constitutional
protections and human rights in so many diverse countries, as
mentioned earlier.
It ought to be added that the radically changing social, economic
and political conditions throughout the world resulting from economic
development, industrialization, urbanization, and the like have
severely modified the support and protection traditionally provided
by the small, close-knit community.
- These intrusions have created a largely isolated individual
who is forced to go it alone against social, economic and
political forces that far too often appear to be aggressive and
oppressive...In such circumstances, human rights appear as the
natural response..., a logical and necessary evolution of the
means for realizing human dignity [in a changing social
environment].16
Defining and Justifying Human Rights
The position I want to try to defend is compellingly put forward
in an article by William Gass called "The Case of the Obliging
Stranger." The article begins in the following way:
- Imagine I approach a stranger on the street and say to him,
'if you please, sir, I desire to perform an experiment with your
aid.' The stranger is obliging, and I lead him away. In a dark
place conveniently by, I strike his head with the broad of an axe
and cart him home. I place him, buttered and trussed, in an ample
electric oven. The thermosat reads 450 F. Thereupon I go off to
play poker with friends and forget all about the obliging stranger
in the stove. When I return, I realize I have overbaked my
specimen, and the experiment, alas, is ruined.
Something has been done wrong. Or something wrong has been
done.
Any ethic that does not roundly condemn my action is
vicious...It is also interesting that no more convincing
refutation of any ethic could be given than by showing that it
approved of my baking the obliging stranger.17
Gass continues:
- ...[I]f someone asks me, now I am repentant, why I
regard my act...as wrong, what can I do but point again to the
circumstances comprising the act? [my emphasis].
'Well, I put this fellow in an oven, you see. The oven was on,
don't you know.' And if my questioner persists, saying, ' Of
course, I know all about that; but what I want to know is,
why that is wrong?', I should recognize there is no use in
replying that it is wrong because of the kind of act it is, a
wrong one, for my questioner is clearly suffering from a sort of
[folly of moral doubt] which forbids him to accept
any final answer this early in the game, although he will have
to accept precisely the same kind of answer at some time or
other [emphasis added].
...It cannot be my baking the stranger is wrong for no reason
at all. It would then be inexplicable. I do not think this is so,
however. [The act] is not inexplicable; it is
transparent ...[Thus, the] explanatory factor is always
more inscrutable than the event it explains [my
emphasis].
[For] how ludicrous are the moralist's 'reasons' for
condemning my baking the obliging stranger. They sound queerly
unfamiliar and out of place. This is partly because they intrude
where one expects to find denunciation only and because it is true
they are seldom if ever used. But the strangeness is
largely due to the humor in them.
Consider:
My act produced more pain than pleasure. Baking this fellow did
not serve the greatest happiness to the greatest number. I acted
wrongly because I could not consistently will that the maxim of my
action become a universal law. God forbade me, but I paid no heed.
Anyone can apprehend the property of wrongness sticking plainly to
the whole affair. Decent men remark it and are moved to
tears.18
[And, we may add a few examples of our own:
I would not like it if it were done to me.
If widely practiced, acts of this kind would diminish the chances
for the survival of the species.
If people have any rights at all, they have a right not to be
treated in that way (Hart, Shue).19
Such acts do not 'work for us' (Rorty); they are not part of our
'story' or tradition (MacIntyre, Hauerwas), nor are they consonant
with 'our own culture's best view of what moral truth or justified
moral belief consists in' (Stout).20 ].
Gass's general argument is, obviously, in the tradition of moral
intuitionism. One of his two central points was anticipated, for
example, in H.A. Prichard's famous essay first published in 1912,
"Does Moral Philosophy Rest on a Mistake?" Prichard's affirmative
answer to that question follows from the same conclusion Gass comes
to, namely, that moral theories sound "queerly unfamiliar and out of
place" as efforts to justify our reactions to acts like baking the
stranger. Indeed, as Gass suggests, the attempt to supply justifying
reasons of the sort we mentioned would appear to be material better
suited for Monty Python than for philosophical discourse.
Even though Gass's second point is not mentioned by Prichard, it
conforms well to the spirit of intuitionism--that far from providing
justification for moral reactions of this kind, moral theories are
themselves judged by how they handle acts like baking the stranger.
As Gass puts it, "Any ethic that does not roundly condemn my action
is vicious...[and] no more convincing refutation of any ethic
could be given than by showing that it approved of [it]."
The first step in my strategy is simply to substitute certain
human rights statements for Gass's example of baking the stranger.
Consider the comments by Patricia Derian and Ronald Dworkin, quoted
earlier, condemning torture as universally wrong. We must readily
admit that uncertainty will remain as to whether in some extreme
circumstances torture might not be excusable--say, to extract from a
terrorist information concerning the whereabouts of explosive
devices, information that would help to prevent the death of large
numbers of people. Moreover, there are likely some margins of
unavoidable dispute among cultures as to whether a given form of
treatment constitutes torture or not. Nevertheless, can there be
any reasonable doubt that some forms of torture--for example,
inflicting severe pain on children for amusement or to terrorize and
intimidate are naturally wrong, and ought, as Dworkin urges,
to be declared taboo for all the world? When the authors of
Nunca Mas write, "Each time that a child suffered torture
directly or witnessed the torture of his parents, he entered into a
realm of horror [in some cases leading to suicide]"21, can
there be any reasonable doubt, that acts of this sort are simply and
transparently wrong in themselves, whoever may perform them and in
whatever culture?
Further, can there be any reasonable doubt that people who have
systematically engaged in such acts have acted viciously in the sense
of having violated something "deep down inside," something contrary
to what it means to be a human being, and are therefore appropriately
referred to, in Dworkin's words, as "criminals against humanity"?
As in other similar examples of moral revulsion--for instance, in
response to extra-judicial execution for purposes of terrorizing and
intimidating, our reactions to the torture of children and the like
conform precisely to Gass's account. Firstly, moral theories, insofar
as they pretend to "explain" and "justify" why these acts are wrong,
are little more than pompous distractions. In such instances, the
relevant questions concern only the verification of circumstances:
Was a child in fact involved? Was torture willingly and deliberately
performed for purposes of intimidating the parents, or, was the
torturer perhaps acting under duress? etc.
If, after the evidence has been substantiated, someone still
ventures to inquire why such an act was wrong, all that can be done
is to repeat, perhaps more graphically, "the circumstances comprising
the act": the child was three years old; while intermittently
drinking coffee and smoking a cigar, the torturer administered severe
electric shocks to the genitals of the child in the presence of its
parents until they promised to retract their public criticism of
government policies. Beyond that, further requests for "reasons" why
torturing children in that way is wrong becomes an occasion for
doubting the mental and spiritual health of the inquirer.
Secondly, rather than requiring "further justification,"
circumstances like these establish a prior standard for evaluating
theories of practical reason, including moral theories. That means,
as Gass points out, that any theory that somehow finds a way to
render acts with these precise characteristics to be permissible or
even excusable is categorically invalidated. For example, when the
Argentinian generals invoked a "national security ideology," based in
part on an argument from necessity, as a way of excusing the torture
of children during the "dirty war," such a conclusion (among others)
itself became the basis for refuting the ideology. Any theory that
systematically condones torturing children thereby demonstrates that
it is a corrupt theory.
Though Gass does not make the point, it follows that a theory also
refutes itself to the degree that it dilutes or enfeebles the
character of the primary intuition. Here Dworkin's use of the word,
"taboo" in regard to torture is instructive.
A taboo is a "sacred prohibition."22 It is understood to "go to
the depths" of human life; it verges upon a "sacred" realm, a realm
beyond daily experience that is at once powerfully mysterious and
fascinating. As such, a taboo attests to something beyond the control
of human beings, something that is conceived to establish the
conditions of human action in an "objective" way--in a way that must
not be tampered with. Dworkin's suggestion that the taboo against
torture protects the basis of "all the other constraints of
civilization," namely "sympathy for suffering," is profoundly
interesting in this regard. In any case, to talk of taboos is to
talk, without embarrassment, of the inalterable and universal
"foundations" of human life. 23
Now if it is appropriate to characterize the sort of intuitions
that are associated with the torture of children as "taboos," then,
by extending Gass's account, any theory that weakens or in some way
"denatures" that understanding is, as I said, thereby self-refuting,
just as theories that condone such acts would be self-refuting.
In my opinion, it does not take much effort to perceive that a
number of the fashionable theories of practical reason--pragmatism,
neo-traditionalism (or whatever we are to call the emphasis on
inherited cultural particularism as the context of practical
reasoning), and related views--have precisely the effect of
"deconstructing" or decomposing a belief in taboos in the sense we
have identified them. If I understand properly, it is, among other
things, the point of several of these views to show how mistaken are
the assumptions about the "inalterable and universal foundations" of
human life, and particularly the assumptions associated with
"natural-rights liberalism" and its offspring, human rights
philosophy. Accordingly, a conviction that there is, for example, a
right against the recreational or intimidational torture of
defenseless people that is universally justified, or "written on the
hearts" of all people, as St. Paul says, is fallacious. From my point
of view, such skepticism serves only to dilute or enfeeble the
primary intuition we have been talking about.
Though I have no room here to supply documentation, from what I
have read, Rorty and Hauerwas appear to hold unconditionally that a
belief in any kind of universal rights (or close substitutes) is
fallacious. MacIntyre and Stout may be groping toward certain
universal moral prohibitions on other than a rights basis, though the
precise implications for action remain unclear, and the support for
such views appears to fall far short of the requisite commitment to
"inalterable and universal foundations" of human action.24
As to some of the other aforementioned "reasons" in support of our
primary intuitions, they appear to me not so much to undermine as to
trivialize the intuitions and in that way to dilute them. It is
fairly obvious that the "I-would-not-like-it-if-it-were-done-to-me"
appeal does not cover the kind of intuition I am talking about. If we
consider our reactions to torturing children, it is hardly a question
of personal likes and dislikes. The matter is considerably weightier
than that.
Similarly, to describe our intuitions about prohibitions against
torture as justified because they are instrumental toward some goal
like preserving the species or maximizing pleasure or achieving some
other idea of the good puts the cart before the horse. Assuming that
Dworkin's account of a "torture taboo" is accurate, as I am, then the
prohibition against torture may not be judged and justified with
reference to some end or other. On the contrary, ends, ideas of the
good, and the like are themselves evaluated as to whether or
not they condone violations of such a prohibition and whether or not
they weaken commitment to it.25
We are now in a position to address more directly questions of the
definition and justification of human rights. Since a human right is
a complex idea with moral, legal, and other aspects, we must make
some preliminary clarifications. Given that a "right"
simpliciter is an entitlement to demand a certain performance
or forbearance on pain of sanction for noncompliance; that a "moral
right" is a right regarded as authoritative in that it takes
precedence over other action, and is legitimate in part for
considering the welfare of others; and that a "legal right" is
warranted and enforced within a legal system, a "human right," then,
is understood as having the following five characteristics, according
to the prevailing "human rights vocabulary."
1. It is a moral right advanced as a legal right. It should, as we
pointed out earlier, "be protected by the rule of law," thus
constituting a standard for the conduct of government and the
administration of force. 2. It is regarded as protecting something of
indispensable human importance. 3. It is ascribed "naturally," which
is to say it is not earned or achieved, nor is it disallowed by
virtue of race, creed, ethnic origin or gender. 4. Some human rights
can be forfeited or suspended under prescribed conditions (e.g. under
public emergency), but several "primary" or "basic" human rights are
considered indefeasible under any circumstances. 5. It is universally
claimable by (or on behalf of) all people against all (appropriately
situated) others, or by (or on behalf of) certain generic categories
of people, such as "women" or "children." Those who are appropriately
subject to such claims are said to have "correlative human
duties."
The right against torture, which is enshrined in various major
international instruments, is an example of a human right that
satisfies all five characteristics. The prohibition of torture is
assumed to be a moral right that is advanced as a legal right--it
sets a universal political-legal standard; it is also assumed to
protect something of indispensable human importance, and to be
ascribed "naturally" to all human beings, simply as human beings. It
is one of the "primary" human rights that, legally understood, may
not be suspended under any "exceptional circumstances" whatsoever.
Finally, it is universally claimable by or on behalf of all human
beings against all (appropriately situated) others. Thus, all people
have a complex "correlative human duty": they must not perform
torture; they must help protect against the practice, and they must
aid those subjected to torture.26
As I hope is clear from the foregoing comments, my proposal is
that the "moral authority" of the prohibition against torture rests
finally and exclusively on an intuition or recognition of "the
transparent wrongness" of at least certain forms of torture--in my
discussion, of the recreational or intimidational torture of children
and other defenseless innocents.27 The general features that
constitute the wrongness of such acts are, it seems clear to me,
the arbitrary (or purposeless) infliction of severe suffering,
that is, the infliction of severe suffering for no good reason.
Deliberately to inflict severe suffering upon defenseless individuals
like children for some self-regarding purpose such as amusement or
protection from political criticism is an important part of what the
concept "moral wrongness" has to mean. Consequently, cases of
that sort of practice, such as occurred in Argentina in the late 70s,
simply display these features, and in that sense are "transparently
wrong."28
A note should be added concerning why all forms of torture,
and not just recreational or intimidational torture, have been
outlawed in the international instruments. There are two related
reasons. The first is the manifest irrationality of depending on the
infliction of pain as a means of extracting reliable confessions.
Cesare Beccaria called attention to the difficulties in 1764:
- [T]he requirement...that pain become the crucible of
truth, as if truth's criteria lay in some wretch's muscles and
sinews, only confuses all relations. It is a sure means to acquit
the sturdy villain and condemn the weakly innocent....The result
of torture, then, is a matter of temperment and of calculation,
and varies in every person in proportion to strength and to
sensitivity; so that it would be more the mathematician than the
judge that could solve the following problem: given the muscular
strength and nervous sensitivity of an innocent, find what degree
of pain will make him confess to a given crime.29
Second, whatever utility there may be in employing torture in the
extreme case, it appears impossible to prevent it, once introduced,
from becoming the cause of widespread arbitrary suffering. In the
words of the Amnesty International Report, Torture in the
Eighties, "Once justified and allowed for the narrower purpose of
combatting political violence, torture will almost inevitably be used
for a wider range of purposes against an increasing proportion of the
population."30 Thus, torture of combatants or even of criminal
suspects for interrogational purposes predictably degenerates into
the unrestrained and thus "arbitrary" infliction of severe suffering,
an outcome which, of course, violates our definition of part (anyway)
of the idea of moral wrongness.
The primary and indefeasible character of the right against
torture begins to suggest how it might be related to other human
rights.31 "Secondary" rights, such as the rights of legal due
process, political participation, freedom of expression, movement,
and association, are rights suspendable under specified conditions
enumerated in the international instruments. They would be understood
as reliable means for preventing the arbitrary infliction of severe
suffering like torture. Accordingly, secondary rights implement
primary rights, and are justifiable for that reason. 32
These comments help, I hope, to illumine why the view I am trying
out is an example of "rational," rather than "sensational"
intuitionism (of the Hutcheson and Shaftesbury sort). Wrongness is,
accordingly, "cognizable," in that the notion has certain irreducible
cognitive features, as already specified. The idea is that human
beings may be expected to "know enough" to be able to recognize these
basic features as deeply wrong, or "taboo," and to begin to organize
their lives accordingly, unless impeding or debilitating
circumstances intervene to derail the prescribed recognition.
This last point has, of course, been the standard line of defense
adopted by intuitionists when it is pointed out that not all human
beings in fact have the same intuitions. If, for example, reference
is made to societies like the Iks of Uganda, who allegedly act with
systematic disregard for taboos against gratuitous suffering, it
might be answered that they have been "morally handicapped" for
having been banished from their traditional lands and way of life.
Such a line of defense has always seemed perfectly reasonable, so
long as one were convinced that taboos of the sort we have been
proposing do exist.
From all I have said, it will be obvious that I see no reasonable
grounds to doubt the taboo against arbitrary suffering as manifested
in the practice of torture. Therefore, I would see no particular
problem describing as "handicapped" or "pathological" someone, or
some group of people, who genuinely and systematically denied the
universal and absolute wrongness of such a practice, particularly if
such denials were acted upon. A judgment of that kind, of course,
underlies the common international practice of condemning as "gross
human rights violations" actions which typically include violations
of the taboos we have been discussing.
I will admit that intuitionists have usually gone too far both in
the number and range of basic moral intuitions they claim, as well as
in the degree of confidence they place in the ability of "intuition"
to serve as a "procedure" for resolving moral dilemmas. My strategy
is much more modest. At this point, I am inclined to suspect that the
list of "primary intuitions" or taboos is actually quite small, and
that the notion of "intuition," or whatever synonym we may identify,
is relevant only in respect to them.
Beyond that is the fairly traditional idea that once the primary
intuitions are in place, they will have to be applied, and conflicts
among them resolved, to the extent possible, by means of reason. This
is a second sense in which my proposal is an example of "rational
intuitionism," and its role is suggested by Gass's comment that "no
more convincing refutation of any ethic could be given than by
showing that it approved of my baking the obliging stranger."
The procedure here is to determine, by means of both empirical and
logical analysis, the extent to which any practical theory could be
shown to approve of, to lead to, or to trivialize taboos against
arbitrary suffering. It is at this point that the afore mentioned
examples of fascism and colonialism, as background for the post-World
War II human rights campaign, become pertinent. The overall moral
effects of these movements were, it seems to me, to "clarify the
dimensions of our intuitions," as we might say.
The record of atrocities committed in the name of fascism and
colonialism served to shock people all over the globe into a new
awareness of what we called the "modern potential for political
pathology." It was not that in beholding fascist practices people
came for the first time to believe that genocide or
"geno-torture"--namely taking life or inflicting severe suffering on
the basis of religious, ethnic, or racial criteria--was wrong and
ought to be condemned and resisted. It was rather that people came to
see dramatized before their eyes the full pathological implications
of certain discriminatory beliefs. Once the connections were
demonstrated, all further arguments in support of those beliefs were
silenced. To rephrase and adapt Gass's observation: After World War
II, no more convincing refutation of any set of beliefs could be
given than by observing that it approved of (or led to, or
trivialized) arbitrary suffering of the sort practiced during that
period.
That same form of refutation is now deeply embedded in the
emerging world culture that is in part conveyed by the human rights
vocabulary. All sets of practical beliefs in all parts of the world
are now standardly subjected to what we could call "the anti-fascist
test," and its variant, "the anti-colonialist test." If it can be
convincingly demonstrated that certain beliefs approve of, lead to,
or trivialize arbitrary suffering of the sort associated with fascism
and colonialism, very little else needs to be said.
In contemporary ideological disputes, all sides charge opponents
with imposing one form or another of severe arbitrary suffering.
Marxists and communists claim that capitalism enslaves workers in a
system of "untold horrors, savagery,...and infamies," as Lenin put
it.33 Conversely, communism represents for capitalists a totally
oppressive way of life. Islamic revolutionaries cite the record of
what they regard as Western domination and exploitation in the Middle
East in justification of their cause. For their part, Westerners view
the extension of Islamic fundamentalism as a new form of tyranny.
Communitarians attack liberals for imposing their own biases and
special interests under the guise of "universal standards," while
liberals charge communitarians with favoring ethnocentric and
preferential political patterns. Whoever may be right or wrong in
demonstrating the practical implications of certain assumptions and
beliefs, there can be little dispute that the terms of moral argument
are now deeply fixed and widely pervasive, illustrating the common
reference point supplied by the events of World War II, and the
anti-colonial aftermath.
Concluding Remarks
There remains, of course, a large number of unanswered questions.
There are strictly philosophical problems, such as what sort of
epistemology and ontology go with this view, as well as whether this
position represents some kind of "foundationalism," which is at
present in such disrepute. It is also fair to ask whether this is at
bottom a "rights-based" theory, and, if so, how such a theory might
escape some of the powerful objections currently in the
literature.
There are, in addition, questions oriented more directely to
thinking about human rights. What is the relation of "primary rights"
to the whole host of other rights contained in the international
documents? How are conflicts among them resolved, etc.? These are all
problems that need attention.
Still, waiting until all the theoretical problems are solved
before giving assent would, afterall, contradict the kind of appeal
that is made here. The whole idea is that the rapidly growing
international consensus on human rights rests upon a few
incontrovertible intuitions concerning some fundamental taboos, like
the taboo against torture. Given certain prevalent sociological
conditions, it is "common sense" to honor those taboos by advocating
and enforcing human rights.
This position does not disparage theoretical reflection. But it
does understand such reflection to be "after the fact," rather than
before it.
The views expressed in this essay are the author's alone and are not
to be taken as necessarily representing the outlook of the United
States Institute of Peace. I would also like to thank my assistant,
Darrin McMahon for editorial assistance.
1 Alasdaire MacIntyre, After Virtue: A Study in Moral Theory
(South Bend: Notre Dame Press, 1981), p. 67.
2 Ibid.,p.2.
3 Ibid.
4 Richard Rorty, Consequences of Pragmatism (Minneapolis: University
of Minnesota Press, 1982),pp. xlii-xliii.
5 Stanley Hauerwas, The Peaceable Kingdom (Notre Dame: University of
Notre Dame Press, 1983), pp. 60-1.
6 Ibid., p. 63.
7 Patricia Derian, Prepared Statement, Dec. 15, 1982, Reconciling
Human Rights and U.S. Security Interests in Asia, Hearings before the
Subcommittees on Asian and Pacific Affairs and on Human Rights and
International Organizations of the Committee on Foreign Affairs,
House of Representatives, August 10; Septemeber 21,22,28,29; December
3,9,15, 1982, Government Printing Office, p. 483. The thrust of Ms.
Derian's comments is, 1) that the infliction of pain under the
conditions mentioned is universally regarded as wrong ("demeaning and
degrading"), and 2) that these universal reactions are valid. In
other words, the statement has both descriptive and normative
significance.
8 "Idolatry of Politics," Fifth Jefferson Lecture of the National
Endowment for the Humanities, 1986, unpublished version, p. 8.
9 Ronald Dworkin, "Report from Hell," New York Review of Books (July
17, 1986), p. 16. It is worth pointing out that although Dworkin's
recommendation is clearly intended as universally normative, there
is, as it stands, ambiguity over its justification. "The world
needs...a settled, undoubted conviction" could mean that, 1) we ought
now to invent and decide to adopt such a conviction, a conclusion
that is no doubt compatible with anti-objectivist positions. Or, it
could mean, 2) that we need it because it is a prior and independent
("objective") moral condition of human life, there to be discovered,
not invented. My impression is that Dworkin would incline toward the
second positon, though I am not positive. In any event, in what
follows I try to make the case for the second position.
10 In the light of some recent work on human rights, it is important
to stress the need to attend specifically to questions of
justification. It is popular these days to try to avoid the problem
of the normative grounds of human rights beliefs by appealing to
consensus. In International Human Rights: Universalism vs. Relativism
(London: Sage Publications, 1990), p. 78, Alison Dundes Renteln
writes: "it is important to realize that there may be cross-cultural
universals which empirical research might uncover. By seeking out
specific moral principles held in common by all societies, one might
be able to validate universal moral standards." No argument is
provided to show how it might be possible, if it is, to deduce
normative conclusions from purely descriptive premises. Similarly,
Jack Donnelly argues in Universal Human Rights in Theory and Practice
(Ithaca: Cornell University Press, 1989), pp. 21-23 that we may be
satisfied with a purely "analytic or descriptive" theory of human
rights, rather than a "normative or prescriptive" one, because, for
one reason, "there is a remarkable international normative consensus
on the list of rights." It is enough, according to Donnelly, to show
descriptively "the implications for social relations of taking human
rights seriously." As our own comments in the first section of this
paper demonstrate, description of the role and implications of human
rights in contemporary international politics is important. But for a
full theory of human rights that is surely insufficient. Whatever
consensus may now exist, it was hard-won, to put it mildly, against
the most severe challenges to the justifiability of human rights from
fascists and others in recent history. There is no reason to think
such challenges will not reappear. Indeed, as we mentioned at the
beginning of the paper, serious philosophical challenges to human
rights are in fact rather fashionable these days. It is hard to see
how appeals to consensus answer these challenges, since critics may
consistently assert that the consensus is mistaken, and ought to
change. Moreover, it seems clear that human rights language, like
moral and other evaluative language generally, is self-committing in
a way descriptive language is not. Human rights, as formulated in the
international instruments, call for commitment: "Whereas the peoples
of the United Nations have in the Charter reaffirmed their faith in
fundamental human rights, in the dignity and worth of the human
person and in the equal rights of men and women,...(Preamble,
Universal Declaration; emphasis added). A statement like this is very
different from saying that 'the peoples of the UN have in the Charter
taken note of the fact that human rights are widely accepted.' A full
theory of human rights must address the 'self-committing character of
human rights,' or what philosophers call the 'supervenient' character
of normative language. My contention is that the supervenience or
special normative or 'self-committing' character of human rights
language is accounted for only by explicitly identifying a prior
moral premise (the primary normative intuitions) in which the
"rightness" of rights can logically be grounded. See Paul Taylor,
"Social Science and Ethical Relativism," Journal of Philosophy 55
(1958), for a thoughtful discussion of this issue.
11 R.J. Vincent, Human Rights and International Relations (Cambridge:
Cambridge University Press, 1986), p. 7. Cf. Louis Henkin, The Age of
Rights (New York: Columbia University Press, 1990), p. 28-9: "In
response to pressures and influences both domestic and external, all
kinds of political systems, all kinds of governments have accepted
the idea of rights, have written rights into constitutions, and have
undertaken obligations to respect them. No doubt the commitment of
many countries to human rights is less than authentic and
whole-hearted. Yet the fact of the commitment, that it is enshrined
in a constitution, and that it is confirmed in an international
instrument are not to be dismissed lightly. Even hypocrisy may
sometimes deserve one cheer for it confirms the value of the idea,
and limits the scope and blatancy of violations...."
12 J.G. Ruggie, "The Future International Community," Daedalus (Fall,
1983), 105-106; emphasis added. Cf. Antonio Cassese, Human Rights in
a Changing World (Philadelphia: Temple University Press, 1990), pp.
63-64: "[I]t is a fact that the Universal Declaration and the
various covenants, treaties and declarations that followed ended up
involving and, as it were, 'ensaring' states which were opposed or
indifferent to certain aspects of human rights, either due to their
historical and cultural traditions or due to different ideologies.
Thus,...the Socialist countries, having first shown perplexity over,
and indeed hostility towards, the Universal Declaration, ended up
collaborating in drafting it. Admittedly, they began by thinking of
using it as a weapon in the Cold War. But they gradually came to
believe in the Declaration as a great ethical and political decalogue
that should inspire their actions. More or less the same thing
happened to many Third World countries, which ended up energetically
participating in producing, if not the Declaration (many of them were
not yet independent in 1946-8), the 1966 Covenants [on Civil,
Political, and on Economic, Social, and Cultural
Rights]....Admittedly, this process of unification remains at the
moment mainly at a 'rhetorical' level, that is, a normative and to
some extent ideological one. But in a world as divided, and
fragmented, as the international community today, the existence of a
set of general standards, however diversely understood and applied,
in itself constitutes an important factor for unification" (original
emphasis).
13 An elaboration and defense of this view of the notion of morality
is provided in David Little and Sumner Twiss, Comparative Religious
Ethics (New York: Harper & Row, 1978), ch. 2.
14 In regard to the controversy over the publication of Salman
Rushdie's Satanic Verses in September 1988, however, it would be a
mistake to conclude that the 'fragmentation' in moral assumptions is
a simple 'cross-cultural' conflict between 'Muslim' and 'Western'
ideas. The situation is more complicated than that. Commitment to the
norms of free expression and non-discrimination are not all on the
'Western' side. On April 9, 1990, the British High Court of Justice
refused to extend the protection of an existing blasphemy law to
Muslims living in Britain, while as much as admitting that the
decision was unfair: "The mere fact that the law is anomalous or even
unjust does not, in our view, justify the Court in changing it, if it
is clear," Regina v. Bow St. Magistrates Court--Ex Parte Choudhury.
Conversely, there is evidence of commitment to the norms of tolerance
and free expression from within the Muslim community (see Lisa
Appignanesi and Sara Maitland, eds., The Rushdie File (Syracuse:
Syracuse University Press, 1990). For a fuller treatment of the
matter, see David Little, "Toward a European Peace Order: The Role of
Religion and Human Rights," Europe in Transition: Political,
Economic, and Security Prospects for the 1990s, J.J. Lee and Walter
Korter, eds. (Austin: Lyndon B. Johnson School of Public Affairs,
University of Texas, 1991), pp. 257-270.
15 The African nationalist leader, the Reverend Ndabaningi Sithole,
put it this way in 1959: "During the war the Allied Powers taught the
subject peoples (and millions of them!) that it was not right for
Germany to dominate other nations. They taught the subjugated peoples
to fight and die for freedom rather than live and be subjugated by
Hitler. Here then is the paradox of history, that the Allied Powers,
by effectively liquidating the threat of Nazi domination, set in
motion those powerful forces which are now liquidating, with equal
effectiveness, European domination in Africa," cited in Paul Gordon
Lauren, Power and Prejudice: The Politics and Diplomacy of Racial
Discrimination (Boulder: Westview Press, 1988), pp. 161-162.
16 Jack Donnelly, "Human Rights and Human Dignity," American
Political Science Review 76 (1982), 312; cf. Washington Post
(4-9-89): "Poorest Continent [Africa] Becoming Most Rapidly
Urbanized," p. A1.
17 William H. Gass, "The Case of the Obliging Stranger,"
Philosophical Review LXVI, 2 (April, 1957), p. 193.
18 Ibid., p. 198; emphasis added.
19 See H.L.A. Hart, "Are There Any Natural Rights? in A.I. Melden
(ed.), Human Rights (Belmont, Calif.: Wadsworth Publishing Co.,
1970), pp. 61-75; Henry Shue, Basic Rights: Subsistence, Affluence,
and U.S. Foreign Policy. (Princeton: Princeton University Press,
1980); see esp. pp. 21-22, and fn. 15, p. 182 for reference to Shue's
reliance on Hart's famous hypothetical defense of natural rights. As
Shue puts it, "if there are any rights (basic or not basic) at all,
there are basic rights to physical security" (p. 21). Hart's argument
is that if people ascribe "special rights" to others by undertaking
such things as making promises, granting proxies, and entering into
contracts, then they must assume that, absent such agreements,
everyone is understood to have a "general right" (a natural right)
not to be interfered with. The argument is hypothetical because the
general right obtains only if people first agree to enter into
"right-creating" institutions like promise-keeping.
20 Jeffrey Stout, Ethics after Babel: Languages of Morals and Their
Discontents (Boston: Beacon Press, 1988), p. 23.
21 Nunca Mas (New York: Farrar, Giroux and Strauss, 1986), p.
307.
22 Webster's New World Dictionary (1960)
23 It will no doubt be objected that taboos vary and change over time
and from culture to culture. How can one be sure that beliefs in
taboo as representing "the inalterable and universal 'foundations' of
human life" are not simply projections conditioned by temporary and
local circumstances? I do not deny that taboos change and vary. Much
of moral experience undoubtedly involves the process of evaluating
and accepting or rejecting beliefs put forward as taboos. My only
point here is that, on reflection, whatever other taboos may be
deemed irrational, superstitious, etc., a taboo against torture (of
the sort specified) cannot seriously or imaginably be so regarded by
a self-respecting human being. The idea is that our considered
reaction to instances of torture of children such as occurred in the
Third Reich or in Argentina in the late seventies can be adequately
characterized only by means of a concept like taboo--as something
whose violation must be regarded as an offense against the
"foundations of human life."
24 For what is to my mind a thoroughly convincing account of the
nihilistic implications of Stout's latest arguments, see the review
of Ethics after Babel by Edmund Santurri, Journal of Religion 71
(Jan. 1991), p. 67.
25 For criticism of the hypothetical defense of human rights offered
by Shue, see fn. 31, below.
26 See Shue, Basic Rights, ch. 2 for a compelling discussion of
the"correlative duties" implied in a commitment to human rights.
27 I am using "intuition" in the way G.E. Moore does in the Preface
to Principia Ethica (Cambridge: Cambridge University Press, 1965), p.
x: "[W]hen I call...propositions 'Intuitions,' I mean merely
to assert that they are incapable of proof; I imply nothing whatever
as to the manner or origin of our cognition of them. Still less do I
imply (as most Intuitionists have done) that any proposition whatever
is true, because we cognise it in a particular way or by exercise of
any particular faculty...." (original emphasis).
28 I have sympathy for many of the suggestions about the
"foundations" of human rights in Louis Henkin's important book, The
Age of Rights, though I have one reservation. I agree when Henkin
writes: "The idea of rights here distilled from contemporary
international instruments responds, I believe, to common moral
intuitions....Those intuitions have not been authoritatively
articulated. Developed during the decades following the Second World
War, international human rights are not the work of philosophers, but
of politicians and citizens,....The international expressions of
rights themselves claim no philosophical foundation,...." All this
attests to the pretheoretical character of the moral reactions that
appears to me to underlie current international human rights
understanding. Indeed, I have tried to reenforce Henkin's suggestion
in the second part of this essay. But I am less convinced when Henkin
writes, the international expressions of rights "articulate no
particular moral principles." The moral principle I mention and
exemplify in this paragraph seems to me properly to characterize the
"moral intuitions" involved.
29 Cesare Beccaria, Essays on Crimes and Punishments, cited by
Cassese, Human Rights in a Changing World, pp. 89-90.
30 Torture in the Eighties, Amnesty International Report, 1984, p.
7
31 This is, at present, only a suggestion. It does seem clear that
one valid traditional reason for supporting civil and political
rights is the protection they are believed to insure against tyranny,
or what is the same thing, the arbitrary infliction of injury and
death. Still, it may be that some of the derogable rights like
freedom of speech have, in addition, more than just instrumental
value. That needs to be thought through.
I do find this way of understanding the relation between primary and
secondary rights superior to the proposal made by Shue, and in part
supported by Nickel (see Shue, Basic Rights, 5-87; and James W.
Nickel, Making Sense of Human Rights (Berkeley: University of
California Press, 1987), pp. 133-136). Shue's argument is that since
a person who has been killed, enslaved, or tortured is incapable of
enjoying any secondary rights, rights against such things must be
regarded as primary or "basic," and thus are, by implication,
nonderogable. This proposal yields a peculiar result: torture and
arbitrary life-taking would be prohibited so that persons could enjoy
the rights of due process. There are two problems: first, it is more
reasonable to think of the rights of due process as the desirable
means for preventing arbitrary injury and suffering; second, there
appears to be something transparently wrong about arbitrary
life-taking and torturing. They are surely not wrong just because
they make the enjoyment of other rights impossible.
32 See, for example, Article 4 of the International Covenant on Civil
and Political Rights, which identifies certain rights as
"nonderogable" or unsuspendable even under legitimate emergency
conditions. It is important to note that while there is as yet no
fully authoritative and systematic legal theory of the hierarchy of
human rights, nor, for that matter, complete agreement about how many
primary rights exist, legal experts agree that there is a "small
number (irreducible core) of rights"--at least, the right to life,
the prohibition of slavery, torture, and retroactive penal
measures--that is jus cogens, or among the peremptory or overriding
norms of international law; Theodor Meron, "On a Hierarchy of
International Human Rights," American Journal of International Law
80,1 (Jan., 1986), p. 11. Meron goes on to draw an interesting
conclusion: "Removal of the underbrush that clutters the landscape of
concepts and nomenclature may make it possible to build a sounder,
less amorphous structure of human rights, which should be based on an
enlarged core of non-derogable rights" (p. 22; emphasis added). Two
things are worth pointing out in this connection: 1) By definition, a
peremptory norm (jus cogens) acts is a fixed and prior constraint
upon all law. It does not depend for its validity upon state
concurrence, nor are states free to modify it as they see fit. 2)
Each of the "irreducible core" rights--against torture,
extra-judicial killing, slavery, and retroactive laws--amounts to a
fundamental protection against the arbitrary infliction of severe
suffering.
33 V.I. Lenin, The State and Revolution, selection in Walter Laqueur
and Barry Rubin (eds.), The Human Rights Reader ( New York: New
American Library, 1979), p. 181.
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