Making Human Rights Work

I believe that this article by Amartya Sen published in the New Republic makes some tremendously important points about the future of human rights law:

The Universal Declaration of Human Rights made its contribution to practical reason and global politics in four distinct ways. First, the Declaration took the firm view that human rights do not depend on legislation for recognition. People have these rights simply by virtue of being human. The contention here was that the acknowledgment of a human right is best seen not as a putative legal instrument, but as an important ethical demand–a demand that everyone should have certain freedoms irrespective of citizenship, nationality, and location. Such a recognition would lead to fresh legislation rather than await it. The Declaration championed the priority of morality to law. It constituted an open invitation to all to re-organize the world in such a way that the basic freedoms recognized as rights would actually be realized.

This understanding of human rights inpre-legal terms was in accord with the American Declaration ofIndependence, which had asserted in 1776 that it was “self-evident”that everyone had “certain inalienable rights.” It was also in linewith the French declaration, made thirteen years later in 1789, of “therights of man” which similarly asserted that “men are born and remainfree and equal in rights.” Thus the U.N. Declaration has a long andvenerable antecedence–but its non-legal view of rights had beenpersistently disputed, and even ridiculed, by those who believe thatrights cannot have any meaning unless they are legally binding.

JeremyBentham dismissed the non-legal approach to rights almost immediatelyafter the Declaration of the Rights of Man in 1789. In Anarchical Fallacies,written in 1791-1792, Bentham insisted that “natural rights is simplenonsense: natural and imprescriptible rights (an American phrase),rhetorical nonsense, nonsense upon stilts” (which, I assume, is somekind of artificially elevated nonsense). That dichotomy remains veryalive today, and there are many commentators who regard the idea ofhuman rights as no more than “bawling upon paper” (to use another ofBentham’s derisive descriptions). In contrast, the U. N. Declaration ispremised upon the rejection, implicitly but firmly, of such a view.

Sowhat is the underlying argument here? Taking an exclusively legal viewof rights, Bentham asserted that for a right to be “real,” it had to belegislated. A right, he said, can only be a “child of law.” This grantsno room whatsoever for the public recognition of the importance ofcertain freedoms, and of the role of these ethically recognizedfreedoms and rights in providing motivation for fresh legislation. Forif human rights are publicly supported claims that can contribute tothe basis of legislation, then they function not as children of law,but rather as “parents of law.”

The legitimacy of this way ofunderstanding “moral rights” was well discussed by the great legaltheorist H.L.A. Hart. Indeed, Eleanor Roosevelt, in her pioneeringmove, hoped that the provisions in the Declaration would serve assomething like a template for legislation across the world. And to aconsiderable extent, this has occurred both in national legislation andthrough regional “human rights laws.” The European Convention for theProtection of Human Rights and Fundamental Freedoms and other suchconventions and laws have clearly been inspired by the vision that theUniversal Declaration affirmed in 1948. And the impact of thedeclaration did not stop there.