Samuel Moyn, Professor of Law and History at Harvard University explains that the language of human rights is old, even if its popularity is new. The values it incorporated, even during the Enlightenment, were very different from those invoked in recent decades.
The recent crisis over refugees is a valuable reminder of a dark past that Europeans often like to forget. In so many ways, especially since the end of the Cold War, Europeans have celebrated human rights as their most impressive contribution to world affairs. It rapidly became the signature achievement that, they insisted, distinguished their civilisation.
It was tempting to see, rather than the fundamental European contributions of capitalism and power politics, human rights as most expressive of the continent’s spirit. The truth, of course, is otherwise.Europeans spent most of the twentieth century killing one another, and settled on human rights as their favored theme only in recent times and specific circumstances.
The history of language illustrates as much. No matter the European language, the use of the phrase ‘human rights’ — diritti umani, droits de l’homme, Menschenrechte, and so on – was rare in the past. Indeed, it is in part because it is so popular today that our first assumption is that it was always so.
But understanding how it became so integral to European identity forces us to put aside self-congratulation and reconsider many of our most basic assumptions.
It is true, of course, that the language of human rights is old, even if its popularity is new. But the values it incorporated, even during the Enlightenment, were very different from what people mean when they have invoked the theme in recent decades.
The notion that humans — or white men, at least — have moral entitlements simply by virtue of their humanity is clearly centuries old, but the Christian frameworks within which it emerged were deeply repressive.
Indeed, the idea of ‘rights’ in natural law, not simply before and during the Enlightenment but today as well, is typically and primarily concerned with the protection of property. This is considered as the first among all entitlements that the powers of the world must recognise.
Later on, in the aftermath of bloody fratricide, European Protestants began to champion religious freedom. And the nobility, in response to absolutism, insisted on protections against overweening kings, notably in the criminal process.
Finally, there was the more generous list of rights that stemmed from Enlightenment thought — as Vincenzo Ferrone chronicles elsewhere in this magazine.
There is no doubt that they helped shift the focus from moral to political entitlements, and vastly expanded people’s understanding of the nature of rights to include the protection of assembly, speech and press.
Yet it would be deeply mistaken to believe that the annunciation of such ‘human rights’ during the European Enlightenment occurred for the sake of a European civilisation, let alone for a global community based on the idea of a universal humanity.
It was not just that the European countries that established human rights as an idea were the same ones that conquered the globe through brutal and expansionary imperialism that ended only in recent memory.
It was not just that the very success of rights opened a long debate about whether they risked too much equality and disorder, with tumult at home following.
And, we easily forget that the forces of the Old Regime declared war against “the ideas of 1789,” and through much of European history until 1945 (and beyond in Spain and Portugal), they were victorious – in the endurance of monarchy, the success of despotism (including novel forms like Bonapartist and other dictatorships), and ultimately a wildly popular bout of fascism and other forms of authoritarianism.
Rather, the main reason for how recently the age of human rights dawned is that even where liberalism prevailed, it was in connection with the apotheosis of the modern nation-state. For a very long time, the annunciation of human rights did not imply the transcendence of state authority.
Think about it. When the moral principles of human rights were finally applied to politics in the rise of liberal revolution, the main goal was everywhere to erect a new nation-state, not to found a Europe for individuals, or create a global legal regime for their sake.
The universalism of the Enlightenment and revolutionary eras clearly does bear some affinity to contemporary forms of cosmopolitanism. Yet what it put forward as “the immortal rights of man” was nevertheless part of a political project strikingly distinct from contemporary human rights (which, in fact, were born out of a criticism of revolution).
The rights of man were utopian, and evoked emotion: “Who will dare to avow that his heart was not lifted up,” Johann Wolfgang von Goethe exclaimed in 1797, “when the new sun first rose in its splendor; when we heard of the rights of man, of inspiring liberty, and of universal equality!”
Yet unlike later human rights, they were deeply bound up with the construction, through revolution if necessary, of state and nation. It is now the order of the day to transcend that state forum for rights, but until recently the state was their essential crucible.
As principles to which positive law was supposed to conform, the rights invoked by many Enlightenment thinkers, and then during revolution, were, in some sense, above the state. But they only appeared through the state, and there was no forum above it, or at times even in it, in which to claim that the state transgressed. Indeed, once they were declared, it was not self-evident that rights would have many purposes independent of the emergence of the state.
For example, they rarely precipitated legislation that directly checked sovereign authority and never erected judges as powerful defenders of “human rights” against encroachment – even though this may seem like their obvious function today.
In the United States, the now familiar practice of judicial review of legislation in the name of fundamental rights was not a foregone conclusion in 1789, when the first ten amendments were framed. And even when judicial review appeared it did not spark a rich tradition of litigation, given the initially restricted purposes of the national government.
In England, it was assumed that wise opinion and tradition would protect unwritten rights, making it unnecessary to announce them, much less provide a high court to protect them.
In France, meanwhile, it took more than 150 years, until after World War II, for the constitutional rights on which successive republics were based to become the grounds for judicial indictment of the state.
The European Court of Human Rights was a moribund and generally unknown institution through the Cold War. What now seems like a natural assumption, that the very point of asserting rights is to restrict the activities of the state by providing a courtroom forum for their protection, was not what revolutionary rights were about.
Instead, the main remedy for the abrogation of revolutionary rights remained democratic action up to and including another revolution. And while no non-governmental organisations now contemplate that extreme recourse, it was the only response imaginable at the time in the name of the rights of man.
If abstract principles were called upon in the era mainly as grounds for creating new states, they were just as important to justify the erection of insurmountable external borders.
A mere decade after the American ‘people’ declared the autonomy of its new state to the world, Frenchmen, in their own revolutionary declaration, insisted “the principle of all sovereignty resides essentially in the Nation,” adding for good measure that “no body and no individual may exercise authority which does not emanate expressly from it” (Art. 3).
As a result, rights announced in the constitution of the sovereign nation-state – not ‘human rights’ in the contemporary sense — were the great and fateful bequest of the French Revolution to world politics.
Even Immanuel Kant, who proclaimed that human rights were “God’s most sacred institution on earth,” saw no remedy for their violation abroad, for he saw how to institutionalise rights was at home, and — while he pined for a European federation of democracies — knew that adventurism in other countries was more likely to end in colonialism rather than liberation.
Arguably, nothing changed until long after World War II. Europeans were finally done with slaughtering one another over the relevance of more extreme ideologies like communism and fascism. In a bipolar world after 1945, Americans protected Europe from the Soviets, preventing Europe from falling back on its more violent tendencies.
Equally as important, Europeans finally gave up the project of ruling the world that they had assigned themselves, although not by choice.
Lastly, as I have argued in my book The Last Utopia, ideologies like socialism that had captured the imagination of idealists through much of the twentieth century had to fade for human rights to get a second look and become both regional and global ideals.
It was at this time, not before, that Europeans moved to create a common identity based on human rights. Pleasant myths about how long and necessary their commitments prospered, but the fact that they were pleasant did not make them true.
“Each writer creates his precursors,” Jorge Luis Borges writes in a wonderful meditation on how to think about Franz Kafka’s relationship to literary history. “His work modifies our conception of the past, just as it will modify the future.”
From the Greek philosopher Zeno on, through obscure and famous sources over the centuries, Borges points to a plethora of Kafka’s stylistic devices and even some of his seemingly unique personal obsessions from long before he was ever born.
Borges explained: “If I am not mistaken, the heterogeneous pieces I have assembled resemble Kafka; if I am not mistaken, not all of them resemble each other.”
How, then, to interpret these early texts? The earlier writers were trying to be not Kafka but themselves. And the “sources” were not enough to make Kafka possible on their own: no one would even have seen them as anticipating Kafka had he never emerged. Borges’s point about “Kafka’s precursors,” then, is that there were no such things.
If the long ago past is read as preparation for a surprising recent event, both are distorted. The past is treated as if it were simply the future waiting to happen. And the surprising recent event is treated as less surprising than it really was.
The same is true of contemporary human rights as a set of European political norms. We can spend our time rummaging around for precursors, or embrace our own novelty, with all that it entails.
Samuel Moyn is Professor of Law and History at Harvard University. He spent thirteen years in the Columbia University history department, where he was most recently James Bryce Professor of European Legal History. He is editor of the interdisciplinary journal “Humanity” and coeditor of “Modern Intellectual History”. His areas of interest in legal scholarship include international law, human rights, the law of war, and legal thought, in both historical and current perspective. In intellectual history, he has worked especially on twentieth-century European moral and political theory. Among his latest publications are: The Last Utopia: Human Rights in History (Harvard University Press, 2010) and Christian Human Rights (University of Pennsylvania Press, 2015).