Rüdiger Bittner

On Invoking Human Rights When There Aren’t Any

Human rights are supposed to be rights that human beings hold, not thanks to a particular legal transaction, like a declaration, a grant or a contract, but just thanks to their being human.

Doubts

Doubts about the existence of such rights are aroused by the fact that the idea of them has a questionable pedigree. Here is a sketch. In the late 18th century human rights, then called the rights of man, took the place of natural rights. This shift was largely one in terminology, not in substance, for natural rights were called natural precisely because people were similarly taken to hold these independently of any legal transaction. Also, natural rights were always understood to be held only by human beings, so that talking of human rights instead did not lead to a narrower domain of right-holders. In fact, talk of human rather than natural rights tended to widen the domain of right holders, because human rights were explicitly taken to be held by every human being, a point not commonly insisted upon in natural rights doctrines.

Natural rights theory, flourishing from the 16th to the 18th century, has its roots in medieval thought. The 12th century commentators on church law made the crucial step from the much older idea of natural law as the order of the world to the idea of a right held by a human individual, which is therefore often called a subjective right now, or with the useful German term, an Anrecht in contrast to Recht.³⁴

Natural law in the objective sense in turn was first conceived by the Stoics who, taking up ideas from Heraclitus and the Sophists, saw the entire world as a big city and so as ordered by law.³⁵ Christian doctrine adopted this idea, making god the law-giver of natural law, whereas the Stoics had not seen this law as imposed by someone, but as the rational order inherent in what there is.

This is a history of errors. There is no common law of things, which is right reason going through everything there is, as the Stoic Chrysippus taught, according to Diogenes’ report just cited. We know of particular regularities holding for this or that sort of thing, but we do not know of substantive laws governing all there is. And were the physicists to come up with the “theory of everything”, as it is called, it could not be claimed to be particularly reasonable. What is reasonable, given what we know right now, about light’s travelling with the speed it does? Consequently, there is no reason to suppose that humans, since they are endowed with reason, are called upon to adjust their steps to that order of the world, as the Stoics also held, thus giving the law of the world both physical and ethical significance. Furthermore, Christianity’s fragile compromise between its Hebrew and Greek legacies does not stand up: creation and rational order of the world do not fit together. Finally, individuals’ rights do not make sense in a natural law framework. For under natural law some things just are right, and while some individuals may benefit from this or that being right, to speak in the subjective rights idiom of individuals’ having its being right does not make sense.

So in fact there is no natural law as Thomas Aquinas conceived it, and neither are there the natural rights taught by John Locke and the other writers in the early modern period. No doubt European and American histories were importantly influenced by these ideas. False they are no less. To be sure, this tradition full of error might have suddenly born truth in the late 18th century. More likely is that an idea as steeped in its tradition as the idea of human rights merely continues those traditional errors under a new guise.

Problem

Doubts whether there are human rights are strengthened by the problem of limits. Human rights are humans’ rights, but do ants for instance have rights too? If not, why does the human species have this particularity among the animals? The standard answer has been that humans alone have reason and therefore rights. Leaving aside the problem that some humans do not yet or no longer have reason, while allegedly covered by human rights, the central problem is the “therefore” in the preceding sentence. Even if reason is our speciality, matched by no other creature, why should that give us rights? Suppose that ants carry, relative to their own weight, heavier burdens than any other animal. Would that give them ant rights? If not, why does reasoning capacity count right-wise for more than carrying capacity? If ants do have rights, though, how about bacteria, leaves, winds, atoms? Somewhere, presumably, there will have to be a line separating right-holders from other entities, but wherever it is drawn, it will appear arbitrary. The trouble is that, for all the talk of natural rights, there is a tension between nature and rights. Rights are a privilege of those holding them, but within nature there are no differences of rank. It just does not make sense to say that birch-trees are higher than ducks in the order of nature, or conversely. Why then should humans enjoy such a higher standing?

True, one might refuse to draw such a line and give rights to whatever exists, but such an extension in effect relinquishes the concept of an individual’s right. For violating such a right was supposed to be merely one kind of doing wrong, and if everything has rights, then any wrong will be a violation of somebody’s or something’s right, and the concept of an individual’s right will no longer have any work to do.³⁶

Arguments

Doubts whether there are human rights are confirmed, finally, by the fact that no good argument for their existence has been produced.³⁷ To give just two instances, one old, one new: Immanuel Kant, one of the first philosophers to speak expressly of “a right to which every human being by virtue of being human is entitled”,³⁸ did not offer, in that passage or elsewhere, anything even pretending to show that there is such a right. And while James Griffin, in his recent book on human rights, does offer what he calls an account of them, he does not mean by that an argument showing that they exist. He is content to start with human rights as they are used in current discourse and to inquire “what higher principles one must resort to in order to explain their moral weight”.³⁹ So he is arguing only from, not for human rights, which indeed is how the human rights literature generally proceeds.

Perhaps the thought is that the matter is too clear to need argument, but that is an error. It is not at all “self-evident”, as Thomas Jefferson and his fellow deputies in the second continental Congress held⁴⁰, that humans as such have rights, let alone that they were endowed with them by their creator. In fact, by including the creator under the self-evident, the signatories of this important document show that they were not concerned to speak truly, but to warm the hearts of the right-thinking, for by 1776 it cannot have escaped them that serious people had rejected the idea of creation entirely. Self-evidence then being mere trumpeting, we need to see an argument before believing that humans have these rights. As no good argument has been given, the conclusion is, at least for the time being, that they do not have them.

Raymond Geuss has gone further and argued that a “’human right’ is an inherently vacuous conception” on the grounds that for a right to exist there needs to be a specifiable and more or less effective mechanism of enforcing it in place, a condition not fulfilled in the case of human rights.⁴¹ However, that condition appears too demanding. The process in the last few decades has gone the opposite way: first the rights were declared, then institutions beginning to enforce them were established. How good a job they have done is not the issue here.⁴² The point is, to proceed in that order is not clearly preposterous.

Imagination

At this point it is tempting to settle instead for the imagination of human rights. Why care, it might be said, whether humans really have these rights? Whether or not they do, the rights are part of what some authors call the social imaginary, at least in the rich western countries, thus part of our social world. In that sense, they certainly are there, and it is too late to turn one’s back on them, on grounds of non-existence.⁴³

Yet there is no social imaginary. Society does not imagine. Neither does it remember, Halbwachs (1950) and Assmann (1992) to the contrary. People do these things or, more generally, people think and talk. Their thought and talk, though, does not form a unity, neither one per individual nor a society-wide one. It is all bits and pieces. To be sure, there are similarities and influences between these pieces, there are mixtures, oppositions, substitutions, and these processes are worth investigating in cultural studies. They just do not form a whole. Hence, there is no such thing as society’s self-knowledge⁴⁴ or society’s mise en scène of itself,⁴⁵ ideas supposedly underwriting the specious singular of the phrase “the social imaginary” or indeed “collective imaginary”.⁴⁶ Also, if there were such a thing, it would not be particularly important in social terms. Contrary to the tradition of Herder and Hegel, which, via Cornelius Castoriadis’ work,⁴⁷ seems to captivate the friends of the social imaginary, it is not when a society comprehends itself, to repeat: as it does not, that it fully realizes itself. People’s thinking and talking, of social and other matters, is mere “super-structure”: perhaps more than just a dependent variable as in Marx, but certainly significant only within the context of economic and political processes. Leaving aside, though, the idealist leanings of these theories, the main point is that human rights are not part of the social imaginary, there being no such thing. The idea of human rights is just one idea floating around and thus as liable to being found empty as any other.

Still, even if human rights are merely imaginary, in the ordinary sense of the term, human rights talk need not therefore be a bad thing. We often speak of things that are merely imagined, and in many ways such talk can be helpful. We can give people a good time, we can guide and encourage them, we can even explain to them how things really are by telling them stories that represent things other than they really are; and sometimes our audience knows what we are doing, sometimes they don’t, and often they don’t care. On the other hand, works of the imagination can also be harmful. We can mislead, confuse and frighten people by telling them of things that do not exist. (Think of works of the religious imagination.) So with human rights not existing, it is still worth asking whether talk of human rights, imaginary though it be, helps or harms.

Long stories short

This talk certainly helps with abbreviation. You need not specify in detail what some dictator, army or organisation did to human beings in their power. You may summarily speak of the human rights of the latter having been violated, thereby also indicating the seriousness of what happened.

This is an advantage, but it can look bigger than it is. For among those who think that “human rights” refers to something, the precise extension of the term is controversial. That is to say, people disagree on whether such and such is a human right, as opposed to being a mere moral or mere legal right or even no right at all. Thus in using the abbreviation “human rights” for a certain set of moral concerns, you cannot be certain that your audience has in mind the same set. On the other hand, a core range of human rights, the rights, roughly, not to be killed, maimed, raped and tortured, are not in dispute, and mostly, when people speak without further specification of the violation of human rights, it is actions of these kinds to which they are referring.

Cutting long stories short has its drawbacks. Quick and easy abbreviations can make both speakers and listeners forget the weight of what is getting lumped together under them, and the expression “human rights violation” in particular lends itself to a clinically unconcerned way of speaking. But then virtually any description of serious abuse or neglect carries that danger, and to avoid abbreviations does not protect against being facile, or technical.

Truth

Those who invoke human rights speak of what is not there and thus fail to speak the truth. Is that a drawback? – In academic discussions it can be. It is no pleasure to be in a position like Kant’s in the passage referred to above, enunciating a grand claim and then leaving the stage without offering the slightest support for it. However, given that human rights talk has caught on to the degree it has, one is at present fairly safe from being asked to justify speaking in these terms. Moreover, academia punishes mildly, and does so with good reason: people would not dare put forward new ideas if they really had to suffer for saying what is false.

Does it harm, then, not academically, but politically, to say what is false? – Not in general. Some political endeavours have come to a halt because of blatant lies told on their behalf, but these have concerned mostly plain matters of fact, like when someone knew what. In broader statements of political outlook and aims you can get away with just about any falsehood, provided the setting is right and the audience receptive. Ronald Reagan called the killers he sent to Nicaragua “freedom fighters”, without his cause getting perceptibly damaged. Neither will the fact that there are no human rights prove a hindrance, at least under current conditions, to the efforts of those who struggle to have them respected.

Insincerity is different. People often damage their cause when they themselves think they are not speaking the truth. But this is not relevant here. Most of those invoking human rights do think there is something to invoke.

Interaction

Human rights talk suffers from a more serious problem than that of being about nothing. It does not describe what happens in political terms.

Human rights talk casts people as recipients. It says that being human they ought to receive such and such and ought not to have such and such done to them. When some people do not receive what they ought to receive, we can within the human rights script only state this lack: they go without something that is owed to them. And perhaps we can complain, before some court or to heaven: “Ach Gott, vom Himmel sieh darein” (Ah God, from heaven look onto this). But that is all: in terms of human rights there is no more to say than that some people did not receive what by right they should have received. Since human rights talk is mostly about people not receiving what they are due, the point can also be put thus: Human rights talk casts people as victims.

That is not a productive way to think of them. What is missing from the human rights picture is doers, it only contains “lackers”. For in fact people’s lacking something was brought about by other people’s taking it away or in other ways preventing them from getting it or even by their own failure to hold on to it, and these things in turn were brought about by what still others did. That is to say, there is a story behind the lack, but talk of human rights having been respected or violated leaves that story out of sight. Not that anyone, friend of human rights or not, will deny that there is such a story. The point is, the story is only viewed in regard to its bringing about these results, in a kind of utilitarian spirit: what are the pay-offs? In this way, human rights talk remains, for all its insisting on rights, philanthropical, which is to say, concerned with rectifying what recipients receive. Thus it gives no footing to a political understanding, for that is all about the story behind the lack and about the direction in which it may be turned. Such a story always involves different parties. One can all by oneself lack what one is due, and so for that matter have what one is due, but what is really going on is that people exclude, suppress, exploit, torture, kill people, and so on, and these always take two, more than two, actually, since the power to do any of these things is owed to others. Human rights talk focuses on whether some human beings end up with the share they are due, but that is not the right focus for a political view of things, which is interested in the whole process that leads to people’s holding this or that share.

Obligations

This is related to a line of argument that Onora O’Neill has long been pursuing. Back in 1986, she noted:

“The vocabulary of rights has a complex formal structure, but is oddly remote from action.”⁴⁸

At that point she recommended replacing the vocabulary of rights with that of obligations, the latter being in any case more powerful, since some obligations, the imperfect ones, as for instance beneficence, do not have rights corresponding to them.⁴⁹ This last point may not stand up, however. Thomas Pogge argued convincingly that talk of obligations, imperfect no less than perfect ones, can be translated without loss into the rights idiom.⁵⁰ For while possible benefactors are not, under an imperfect obligation, bound to help some particular individual, they are bound to help some needy individual or other, to the extent they can. Hence a possible beneficiary can be understood to hold a corresponding right, not to be sure a right to receive help, but a right to be one of a group of individuals some of whom receive help, to the extent that benefactors are able to help. True, on this construction needy individuals who receive nothing because the basket is empty before it comes to them are not having their rights violated by these benefactors. That seems correct, though: as the benefactors did all they could, there is no claim left that could be brought against them.

Supposing that this is so and obligation talk does not extend more widely than rights talk, the more important question remains whether to speak in terms of obligations does remedy the defect of rights, whether with them we are indeed closer to action. It is doubtful that we are. In terms of obligations we state that one does or does not do what one should do, in terms of rights we state that one is or is not done to what one should be done to, and these are two ways of saying the same thing. The trouble with rights talk is not that it looks at actions from the receiving rather than the doer’s end, but that it does not really look at actions at all, which is to say, at the processes leading to the distributions that rights talk then welcomes or deplores. And in that respect talk of obligations does no better. Taking actions from the opposite end, it likewise fails to look at the processes that lead people to do what in obligations talk they may then be praised or condemned for doing. Both rights and obligations talk remain committed to the “Ach Gott, vom Himmel sieh darein”-perspective. God is not the point, to be sure, but the view from above that has us ask about what one did or what one underwent whether it was as it should be. And no longer to stay remote from action would instead mean to return to the horizontal perspective of looking at the conditions under which people’s interactions take this form or that one, lead to this or that result.

Without rights

The “remote from action”-objection to human rights talk will appear unfair. Those who describe political events in terms of human rights’ being respected or violated do not leave it at that, but certainly pay attention to causes of things’ having gone this way and to prospects for them to go another way. Look at Thomas Pogge’s proposal for changing the pharmaceutical market so as to provide access to medication for the poor.⁵¹ Isn’t that as horizontal as one could wish?

Yes, the interesting human rights literature goes political, but to the extent it does it no longer needs the appeal to human rights. Once we understand why and how exploitation, for instance, became the dominant social relationship in some country and also see how it might come to an end, people’s right that it end has no longer any work to do. It can be dropped in theory: the understanding just sketched does not depend on there being such a right. It can be dropped in practice: those who fight exploitation need not rely on there being such a right. Think of what Karl Marx does in Capital, a Marx shorn, that is, of the claims of historical materialism. He tells us how capitalist exploitation works, how it became dominant in England and other European countries, how it might end and what people can do to advance its end. Whether this theory itself is true and empirically well founded is not the issue now. The point is, it does not have to appeal to a right of the exploited that exploitation end, nor for that matter to an obligation to work towards its end.⁵² And what holds for exploitation, holds as well for the other social relationships in which people are violated in their alleged human rights.

Objection: Accounts that fail to appeal to rights or, equivalently, obligations are too weak. They do not provide reasons to fight exploitation, to stay with this example. Only people’s having a right not to be exploited or people’s having a duty to end exploitation provides such reasons. And these rights need to be human rights for, as Marx himself insisted, states could easily be in the hands of the exploiters or their agents, so the rights granted by them may well not be strong enough to call for an end of exploitation.

The objection assumes that without rights or obligations in place, there are no reasons left to fight exploitation; more generally, that right and duty hold a monopoly on grounds for doing sensible things. If this were true, it would indeed be worrying that there are no human rights, because then there would be no reasons to do anything against what are called human rights violations. Clearly, though, this is not true. Witness Marx once again: he cannot have thought that, in dismissing “ideological cant of right” (ideologische Rechts-Flausen)⁵³, he deprived workers of reasons for fighting exploitation. In fact, one’s being exploited can all by itself be a reason for somebody, oneself or someone else, to do something against it. One need not be called upon either by somebody’s right or by one’s own duty to do what under the circumstances is the right thing to do – and “right” now means neither “what somebody has a right to” (subjective right) nor “what is in accordance with the order of the world” (objective right). It just means “what in view of the circumstances it makes most sense to do”.⁵⁴

Perhaps it will be replied that lots of people think that exploiting others makes excellent sense, so to go by the criterion of what makes most sense to do is not safe, morally speaking. – True, but no criterion is. People can as easily be mistaken about their duties: Eichmann defended himself by appealing to the categorical imperative. Given, then, that a safe criterion is not to be had, the dispute is only whether, having determined as best one can the right thing to do under the circumstances, that result still needs to be cast in the mould of what one is bound by duty to do, or what treatment others have a right to; and it is hard to see why this should be necessary.

Or it may be replied that, while there may be reasons to do what makes most sense, independently of any backing by right or duty, such reasons are not effective, people do not act on them. – And on reasons backed by right or duty they do act? It is difficult to be confident that human rights talk improves matters; that thanks to our calling the horrors that people inflict on people a violation of what the latter are entitled to by being human, fewer people get killed, tortured, starved, raped and so on. It would seem, though this is admittedly mere guessing, that killers, torturers etc. and also their commanders change their ways, not on learning that they violate the rights of their victims, but on finding themselves in a situation that allows or invites a different response. And to figure out what changes it takes to have better alternatives for people than so called human rights violations requires precisely to go into the details of the antecedent stories that human rights talk, focussing on the victims, leaves unattended.

Attraction

If reference to human rights is useless or an obstacle for a political understanding, why has it become such a favourite both in the media and in academic talk, especially in the last few decades? Samuel Moyn suggested that the theme of human rights binds the utopian energies set free when the dominant ideologies of East and West lost their credibility by the end of the 1960’s.⁵⁵ It is doubtful, however, that there was and is still such an undercurrent of utopian thought that could be tapped by human rights talk. Utopia belongs, Ernst Bloch’s work notwithstanding, to the ancien régime. Why bother writing about Noplace or Goodplace, these being literal translations for “utopia”⁵⁶, if things can be changed right here, by revolution if need be? And revolutions do not need Utopia. The will to change a situation that has become intolerable is enough. Nor does the human rights movement actually show a utopian impulse. Its main effect so far has been an array of legal documents and institutions, and these are by their nature reformist in spirit, not utopian.

In fact, human rights talk may have become so attractive not in spite of, but because of its apolitical stance. In speaking of human rights, one need not get down into political business, into finding causes, means, alliances, prospects. One can just declare wrong what people underwent and in this way be done with it. There is comfort in the thought that all those gassed by the Nazis, burnt by US troops, starved by EU agricultural tariffs, and so on, can be imagined to have had, as it were, a document on them, saying that this must not be done to them; comfort certainly not for them, but for us watching what is happening around us. Think of Palmström in Christian Morgenstern’s poem who, run down by a car and lying in hospital, checks the legal situation and concludes that what happened was only a dream, since cars were not permitted there, and what must not be cannot be.⁵⁷ Palmström may be taken to be satisfied by what he finds. In speaking of human rights we resemble him, not to be sure by declaring a dream what is happening, but by coping with it through restoring, in thought at least, the moral order of the world.

That human rights talk has grown exponentially may then be due precisely to the de-politicization of the last few decades. Citizens asserting that politics is theirs were last seen in western countries in the 1960’s, and in various ways the respective states showed them who is master. Citizens learnt the lesson and by and large stayed home since then. Politics has become something that is done somewhere else and watched from afar, like the big sporting events, but it is not something one gets involved in oneself. Under such conditions human rights talk comes in handy. You side with the victims alright, so you are one of the good ones, but luckily you need not actually enter the political arena.⁵⁸

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