A deep engagement with the theory of human rights is more than an intellectual pastime—it has a profound political point, given the new criticism of human rights as an idea, the rise of antiegalitarian authoritarianism, and such fundamental challenges as war, poverty, and climate change, which seem to demand that we reimagine human rights.
Against this background, my recent book tries to show that, contrary to what past and present critics assert, the history of and justification for human rights, as well as what we know about human moral cognition, provide every reason to continue to keep the idea of human rights alive. This can be accomplished not only by criticizing the shortcomings of their legal and political practice, by exposing their abuse and by identifying their blind spots, but also by reasserting the grounds of their profound appeal.
Concept and history
The book first clarifies the concept of rights using analytical moral and legal theory. Then, second, it turns to a major battleground in current human rights debates: the history of human rights.
The history of human rights does not simply tell the story of the explicit idea of human rights, nor does it simply track the history of the terms we now use to express this idea. To look for a Universal Declaration in cuneiform is a hopeless task. The historical account must be much more complex and must consider, importantly, normative ideas about what is right and just that are not human rights but that form the building blocks of the slow development of the idea of human rights. These include basic moral judgments about the claims that human beings have. Key to such perceptions are not only explicit moral rules and legal codes but also social practices, not least the struggles of human beings through the ages for what they thought to be their due.
This widens the perspective of human rights history considerably. Crucially, it provides us with methodological tools to begin exploring a neglected part of human rights history: the role that such judgments have played in the lives and societies of Indigenous peoples. It is important to ask how these peoples, who long suffered under mostly European powers, perceived their own conquest, repression, exploitation, and enslavement. Take, for example, the Hereros, a Bantu ethnic group inhabiting parts of Southern Africa who were driven by German colonial forces into the desert to die in 1904—were they just experiencing the physical pain of their situation or also the injustice of their suffering and, in whatever conceptual framework, the violations of whatever claims that they thought they had? Such a moral experience—albeit not couched in modern human rights terms—is very important for a history of an idea of human rights that aims to avoid embarrassing ethnocentric blind spots or even racist bias.
This historical inquiry demonstrates that the normative raw material for constructing human rights can be found across time and cultures. Human rights are no prerogative of what is sometimes called “Western” culture. These building blocks were turned through a long, twisted, and discontinuous process into the recently developed explicit idea of human rights as an ethical, political and ultimately legal concept.
This history—in particular the establishment of the concrete legal human rights system as we have known it since 1945, built on the mutually supporting pillars of constitutions and regional and international systems of rights protection—confirms that key to understanding the normative core of human rights are not vaguely circumscribed, often essentialist cultural notions but specific, normative, deeply political positions formed by autonomously reflecting human agents as to the status and justified claims of human beings and their fundamental duties. It is a mistake to depoliticize the intrinsically political project of human rights.
Ideological litter from the past?
The inquiry’s third step is to investigate what grounds there are for the normative justification of human rights. The current theoretical discourse on this topic is rich and controversial, and seems to confirm that a justificatory theory of human rights needs to include three elements: first, an anthropological element that helps to motivate the selection of human goods, which are shaped by history but not entirely contingent upon it, that human rights protect; second, a theory of the political preconditions for the enjoyment of these goods; and, third, rich normative principles of egalitarian justice, substantive obligatory solidarity, and the intrinsic worth of human beings.
The last piece in the puzzle
The final step in the argument is to engage seriously with current moral psychology, evolutionary theory, and cognitive science. Robust assertions have been offered as to the nature and origins of human moral concepts, including human rights. These include the claim that we humans possess cognitive structures that fool us into believing in certain moral concepts—including human rights—that are nothing but cognitive illusions.
What the critical discussion of such claims, the assessment of what a sufficiently complex theory of the evolutionary development of moral cognition, and the review of current moral psychology teach us about the structures and origins of moral thought, emotion, and motivation leads to different conclusions: there is no reason whatsoever that can be derived from the theories of evolution and human psychology that undermines the case for human rights. On the contrary, there are promising theoretical approaches—in particular a mentalist account of human moral cognition—that support the perception that the deep structure of human moral psychology in important respects reinforces the human rights project and is not its hidden adversary.
There is no innate charter of human rights, but there are structures of moral cognition that make the complex process of developing human rights possible. This is a significant result of the inquiry. One cannot draw any normative conclusions from psychological findings. But it is important, given its often fascinating and illuminating results, to do justice to this research and to clarify what it truly implies for normative questions of such importance as human rights. These kinds of considerations have not reached the main currents of human rights theory, which is unfortunate.
A simple point
Human rights would make no sense if all members of the bewildering and potentially self-destructive human species were not equally worth the effort of guaranteeing with rights in ethics, politics, and law their capabilities to pursue their particular vision of life. After everything has been said and done, therefore, human rights make a simple point: they embody an assertion of the worth of every human’s life, with all its folly, desperation, missed opportunities, occasional insights, and fragile and rare moments of bliss, as well as the spark of greatness that is at its core.