The Illusion of Human Rights

“There exists something even more important than civil liberties: the survival of legitimate governments.”

By Russell Kirk

Human rights, some folk tell us, are not fully realized in El Salvador. Other people have discovered, somewhat tardily, that human rights are not altogether secure in Cambodia. Our national government engages in a curious moral calculus when it essays to weigh the various merits and demerits of regimes in Uganda and Grenada, Chile and Yugoslavia—let alone the Soviet Union and Communist China.

By what standards are “human rights” to be measured? What, indeed, do we mean by this controversial phrase “human rights”? I offer you some reflections on this subject.

The phrase “human rights” first entered American politics, I believe, when President Woodrow Wilson opposed it to “property rights.” President Franklin Roosevelt similarly set human rights against property rights. Presumably President Jimmy Carter had in mind such employment of the term by his predecessors when he set up a bureaucratic apparatus to sit in judgment upon the nations, reproaching client states for not attaining that perfection of human rights enjoyed in the United States of America.

From the first, the odor of demagoguery has clung to the political use of “human rights” language. For all rights are human rights. Does anyone suggest a code of inhuman rights? Dogs and cats do not enjoy rights. States have no rights (despite constitutional arguments); states enjoy powers. God is above rights, and humankind can claim no rights against God.

And property has no rights, being inanimate and non-human. Human beings, rather, have rights to their lawful property. The right to retain one’s real and personal property is among the most important of civil rights; the critic Paul Elmer More declared that so far as civilization is concerned, the right to property is more important than the right to life. President Wilson, well acquainted with political theory and history, must have been aware that he was disingenuous when he opposed “property rights” to “human rights.” President Franklin Roosevelt might have pleaded ignorance, had he been accused of this abuse of terms.

I am suggesting, you will perceive, that so vague a term as “human rights” is easily warped to politicians’ advantage; and that it may be perilous to employ. Yet behind this feeble term lie old truths and old errors.

When politicians and publicists say “human rights,” to what concepts are they referring? Presumably they have at the back of their minds—supposing them to be reflective at all—either the concept “natural law,” or the concept “civil rights,” or both concepts.

Those two phrases can be defined more readily than can “human rights.” Yet at present the tag “human rights” is in vogue. It is incorporated into the Universal Declaration of Human Rights of the United Nations. It even appears in translations of documents issuing from the Vatican. And of course it is beloved by the mass media.

Can we discern some substance behind the tag? Why, the assumption underlying “human rights” seems to be this: from the nature of man there are derived certain personal immunities that all governments and all people in power ought to respect. This is the doctrine of natural law, as we find it in Cicero and in the Schoolmen. With this natural-law teaching, conferring certain immunities from the operation of power, is bound up the concept of human dignity—a belief of mingled Christian and classical origins. So far as the notion of “human rights” is founded upon doctrines of natural law and of human dignity, it can claim a venerable origin. A few sentences of definition may be useful here.

That term of jurisprudence and politics, natural law, may be defined as a loosely knit body of rules of action, prescribed by an authority superior to the state. These rules of natural justice are presumed to be derived from divine commandment, from the nature of man, or from general human experience over thousands of years. From Aristotle, through Cicero and the Roman jurisconsults, a continuity of belief in natural law was imparted to what we call “the West.” After the triumph of Christian faith, this doctrine of natural law was interwoven with Christian morality and social thought. It was expounded with especial strength by Saint Thomas Aquinas.

As Sir Ernest Barker wrote of the natural law, “This justice is conceived as being the higher or ultimate law, proceeding from the nature of the universe—from the Being of God and the reason of man. It follows that law—in the sense of the law of last resort—is somehow above lawmaking.”

The difficulty of defining natural law closely, and of discovering clear sanctions for invoking it, necessarily involves nature-law doctrine in controversy. Yet there remains in the United States and in some other countries a popular attachment to natural-law belief which still possesses vigor.

In essence, as A. P. d’Entreves remarks, the doctrine of natural law is “an assertion that law is a part of ethics.” Thus, when many people refer to “human rights,” they have in mind, vaguely at least, natural-law doctrine: the conviction that a human being is entitled to a certain justice of treatment because by his very nature he is something better than a beast.

This understanding is closely allied to what Pico della Mirandola, five centuries ago, called “the dignity of man”: the humanists’ aspiration, by a discipline of the reason and the will, to make Man not much inferior to the angels. In short, the politician who employs the phrase “human rights” evokes in some degree, in the popular understanding, ancestral spirits; he conjures up both the Medieval model of Man and the Renaissance model of Man, even though neither the politician nor his auditor may be aware of the sorcery. Ghostly presences, resurrected beliefs, seem to vindicate this incantation of “human rights.”

So in November, 1983, addressing the National Assembly of South Korea, President Ronald Reagan declared, “The United States welcomes the goals you have set for political development and increased respect for human rights.” Democratic presidents introduced “human rights” to our political discourse; a Republican president now accepts the phrase as conventional political cant. By this employment of the phrase, presumably President Reagan meant “civil liberties.”

And when many other people hear the words “human rights,” they take the phrase as a synonym for “civil rights” or “civil liberties.” Thus American attachment to the concepts of natural law and human dignity is joined with American emphasis upon civil liberties; and these two predilections, merging, seem to confer substance upon the amorphous doctrine of “human rights.”

Yet actually the notion of “human rights” is not descended from the natural-law teaching that extends from Aristotle to Burke; nor is “human rights” synonymous with civil liberty. A few minutes ago I endeavored briefly to define the concept of natural law; now let me say something about civil rights.

A “civil right” is a guarantee that the citizen is protected against certain actions that otherwise the state might take to the citizen’s disadvantage. Such rights commonly are stated in the negative—that troops shall not be quartered in private dwellings, for instance, or that punishments shall not be cruel or unusual. Civil rights are understood to entail corresponding civil duties, the most important of which is the duty to maintain the reign of law by which such rights are given flesh.

The extent and exercise of civil rights varies greatly from one culture or political community to another—because “civil rights” are the products of the historical experience of particular peoples. There never has existed a universal code of civil liberties.

The right to trial by jury, for example, so jealously guarded in Britain and the United States, never has prevailed in France. This does not mean that “human rights” are repressed by the French. Instead, it suggests that order and freedom and justice are obtained in diverse ways in different lands and times.

Civil liberties exist under both common law and Roman law, but the particular character of these rights varies from one political system to another. To impose an American pattern of civil rights upon a society of very different origins—upon a Muslim state, for instance—would break down the old pattern of justice without effectually establishing American ways.

To sum up my definitions, natural law is a theory of justice, derived from religious or quasi-religious convictions about the nature of man; while civil liberties are practical immunities at law, derived from a nation’s political development over a long period of time. Superficially, the twentieth-century illusion of “human rights” may seem to be the child of these venerable parents. Yet in reality the notion of “human rights” is a bastard idea of recent birth. Its father was the UNO’s Universal Declaration of Human Rights, to which the government of these United States of America has refused to subscribe. Its grandfather was the Declaration of the Rights of Man, promulgated by the French Revolutionaries and Tom Paine—and also rejected, in its time, by the government of these United States. Friends to natural law and to American civil liberties would be foolish if they should permit this illegitimate notion of imprescriptible universal “rights” to be foisted upon them. The brat might work their undoing.

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Rights can take on flesh only if they are derived from some body of law. The abstractions we call “human rights” have no sanction in the positive laws of most countries; the Universal Declaration of Human Rights may receive the formal assent of various governments, but nowhere is that Declaration observed and enforced. To what positive law may the oppressed appeal in Cambodia or Uganda? To none at all. In such dominations, the only appeal is to the laws of nature—that is, to a justice of an origin more than human. And the squalid oligarchs who preside over the anarchy of Cambodia and Uganda laugh at natural-law pleas. “Pay the soldiers,” as Septimius Severus said; “the rest do not matter.”

“Rights” are immunities, guarantees that certain things may not be done to a person against his will. Rights can be secured only in a civil social order. In a condition of anarchy, no one enjoys rights, because there exists no just authority to which a person may appeal against the violation of rights. Therefore what we call the state, or organized political community, is necessary for the realizing of any rights.

Yet the government of any state may become oppressive. It may ignore or virtually extirpate rights of minorities or of majorities. So enduring rights ought not to be regarded as merely the concessions of a particular government. True rights find their sanction either in a theory of human nature or in the long-established customs of a people. The former of these sanctions is what we call natural law; the latter, what we call civil rights.

We ought to beware of supposing that all civil social benefits which citizens of the United States enjoy today are “natural” rights, universally applicable. Nor should we assume that the civil liberties of our own country might be exported to, or thrust upon, cultures or countries quite different from our own. It would be inhumane for us to become fanatic ideologues demanding an inflexible universal pattern of “human rights.”

ln the current confused discussion of human rights in America and abroad, we need to remind ourselves of an observation by Dostoevski, in The Devils. Those who begin with unlimited freedom, Dostoevski says, must end with unlimited despotism.

Not everything that men and women desire is their right. Politics being the art of the possible, rights do not exist unlimited, in the abstract. Every right is limited by some corresponding duty; and those who claim a right to everything soon find that they are left with a right to nothing.

Near the end of the eighteenth century, in replying to the French revolutionaries, Edmund Burke distinguished between the “real” and the “pretended” rights of human beings. Burke was at once a champion of natural law and a champion of civil liberties in their English form. He declared that the “armed doctrine” (which we now call ideology) was destroying the real rights of men and women even while it proclaimed the pretended rights that cannot be obtained.

There exist certain real rights of all human beings in society, Burke wrote. As he had argued in his prosecution of Warren Hastings, those rights are as valid in India as in Britain. “If civil society be made for the advantage of man,” Burke wrote in 1789, “all the advantages for which it is made become his right. It is an institution of beneficence; and law itself is only beneficence acting by rule. Men have a right to live by that rule; they have a right to do justice, as between their fellows, whether their fellows are in public function or in ordinary occupation. They have a right to the fruits of their industry, and to the means of making their industry fruitful. They have a right to the acquisitions of their parents; to the nourishment and improvement of their offspring; to instruction in life, and to consolation in death. Whatever each man can separately do, without trespassing upon others, he has a right to do for himself; and he has a right to all which society, with all its combinations of skill and force, can do in his favor.”

Burke emphasized that men also have a right to be restrained by Government—that is, a right to be saved from suffering the consequences of their own passions and vices. In effect, Burke argued that the real rights of human beings everywhere amount to the right to live under a rule of law; to the right to be protected in their labor, their property, their inheritance; to the right to religious instruction and consolation; to the right to equality of treatment by the state.

Yet we do not turn ordinarily to these general and abstract claims of right, Burke went on to explain. Rather, when treated unjustly, we appeal first to what Burke called “chartered rights”—that is, the civil rights of our country, as expressed in charters, constitutions, statutes, ancient customs. Statutory and common law, rather than natural law, are the regular means for securing definite rights.

Appeals to natural law are our resort only in times of extreme oppression without regular means of redress; for natural law is not an enforceable code of rules; it is a body of principles of jurisprudence by which we ought to be guided in our construction of positive law.

Although the political and legal forms vary widely from nation to nation, still there endures in every civilization some apprehension of the natural law, derived from an understanding of human nature. All legislators ought to bear in mind the real rights of human beings when they deal with the chartered rights of their country.

Burke’s understanding of natural law and of chartered rights has not been altogether forgotten in the United States. Indeed, Burke’s thought entered into the Constitution and its interpretation, especially through Chief Justice John Marshall, who was mightily influenced by his reading of Burke. This underlying American affirmation of natural justice and prescriptive civil rights has given to the United States a healthy tension between the claims of order and the claims of freedom. In our domestic politics, at least, we understand that perfect security cannot be attained, nor can perfect freedom: we must balance one against the other. Similarly, we understand reasonably well that every right is married to some responsibility. So the awkward term “human rights” does have behind it, in American public opinion, some substance.

But the twentieth century is a bent time; Burke foresaw the coming of our time of troubles. In country after country, totalist ideology has submerged both natural law and civil liberties. Were it not for the surviving power of the United States, the remnant of order and justice and freedom might be swallowed up by Leviathan Ideology.

ln international affairs, nevertheless, the United States needs to beware of what Sir Herbert Butterfield calls “righteousness,” a cardinal error in diplomacy—that is, national self-righteousness. The American Republic does not possess virtue and power sufficient to thrust Americans’ notions of “human rights” upon all the world. Even a massive assertion of American power, a crusade for “human rights,” might destroy more than it could restore. America’s undertaking in Vietnam, President Lyndon Johnson’s version of human rights, was a salutary lesson in this respect, if in no other. It is not the mission of the United States to establish universally some imitation of the American political and economic order. Every people must find their own way to order and justice and freedom. As Daniel Boorstin has written, the American Constitution is not for export. He means that our Constitution grew out of the peculiar historical experience of the Americans. So it is with the underlying constitution of every people. We ought not to expect American-type courts of law to be established promptly in Indonesia, say; or universal suffrage (which even the Swiss did not adopt until very recent years) to be adopted overnight in South Africa; or great prosperous industrial private corporations to appear abruptly in Yugoslavia.

An attempt to impose in short order the American pattern of rights, aside from being hopelessly impracticable, would have consequences distinctly different from those that most Americans desire. Quite conceivably such forced-draft insistence upon a total program of “human rights,” right now, might bring about the triumph of totalist ideologies hostile to both natural law and chartered rights. There is a worse ruler than King Log: he is King Stork.

Consider how the induced demand for “human rights” became a principal instrument for bringing down the Diem government in South Vietnam. That government was engaged in a desperate struggle to repel the aggression of the Communists of the North; simultaneously, it had to maintain itself against factions within its own borders—parties and sects possessing their own armed forces. Despite these overwhelming difficulties, the Diem government was a constitutional order, sustaining a National Assembly and holding elections for both legislative and executive offices. Yet the Left brought against the Diem government the accusation that the regime did not perfectly assure civil liberties, “human rights”; it was said, somewhat vaguely, that Buddhists were discriminated against. Dominant elements of the American mass media repeated these charges until the Kennedy administration abandoned Diem—and made possible his murder. What a triumph for human rights! Now there reigns in Saigon, as in Hanoi, a merciless domination of Marxists who have stamped out the last vestige of civil freedoms. The demand for unlimited freedom has ended in unlimited despotism.

The same process may be observed in El Salvador. Even Mr. Henry Kissinger exhorted the beleaguered government of that unhappy little state—a government democratically elected—to expand its “human rights” in time of civil war, with deadly enemies a few miles from the capital. There exists something even more important than civil liberties: the survival of legitimate governments. I find it a curious notion that the enemies of the state are entitled to full protection of their liberties by the very state they would overthrow. During the Civil War in this Republic, President Abraham Lincoln did not hesitate to reject that sort of disintegrated liberalism: he suspended writs of habeas corpus. Constitutions are not suicide pacts.

Has anyone troubled to inquire of the zealots for “human rights” as to precisely what political and social conditions may be regarded as a satisfactory fulfillment of the “human rights” ideal? We may suppose that, as a minimum, all the articles of America’s Bill of Rights would have to be observed and enforced most scrupulously; that governments would be carried on by “moderate” or “middle-of-the-road” parties of a social-democratic cast (parties of a kind almost non-existent in most of the world); that perfect freedom of expression, including street demonstrations by militant factions, would be not merely guaranteed, but encouraged; that a country’s armed forces would be reduced to a minimum, if not abolished altogether; that of course secret-police forces would be forbidden, and ordinary police directed by citizens’ committees; that universal suffrage would prevail, with frequent elections; that a welfare state would provide a large proportion of the citizenry with generous entitlements; that every demand for more abundant rights would be promptly satisfied. In effect, the “human rights” vision for the world is a latter-day version of the more advanced sentimental liberalism of Victorian England, plus a very considerable dose of socialism.

A principal difficulty of this utopian notion of “human rights” triumphant is that such a society, in most of the world, would be overthrown in very short order by one ideological gang or another—even if it did not collapse of its own weight. Soviet imperialism would give short shrift to some such countries; other varieties of fanatic totalism would triumph elsewhere. The liberal dream began to turn into a nightmare a century ago. The bent world in which we find ourselves will not tolerate such coffee-house political philosophy. Things will be as they will be; why should we seek to deceive ourselves?

And why should we expect other nations, lacking our political traditions and long-established social institutions, unendowed with America’s material resources, to achieve what is imperfectly attained in the United States? Do we Americans enjoy the ultimate fulfillment of “human rights”? To walk the streets with reasonable safety is the most basic of civil liberties; yet millions of Americans dare not step out at night, and some scarcely dare so venture by day. Presumably the safety of children at school is a basic civil right; yet in every American city pupils are assaulted daily, and some killed. Have we no claims of right unsatisfied? Physician, heal thyself.

I do not intend mockery. It is much to be desired that the recovery of order and justice and freedom be advanced throughout the world; we should be thankful, in this rough time, for small mercies. But international politics, like domestic policies, is the art of the possible. To demand that other countries swiftly attain the liberal ideal is to expect what they cannot possibly accomplish; in some cases, it is to expect them to work their own destruction.

Also this is a demand often disingenuous, sometimes hypocritical. The United States supports by gigantic loans the murderous despot who rules Zaire, because now and again he may serve our turn in Africa; but our diplomats do not trouble themselves to inquire keenly into his enforcement of “human rights.” Our State Department sedulously refrains from any words that might annoy the masters of Yugoslavia, where any hope of regaining some degree of civil liberty has been blasted as thoroughly as in Poland; for Yugoslavia is a bulwark of sorts against the Soviet Union. We reserve our sermons concerning human rights for such allies and client states as could not or would not break with the United States under any circumstances.

ln the affairs of nations, it scarcely can be otherwise. For the aim of foreign policy is to maintain and advance the national interest—not to embark upon moral crusades. We seek an informal alliance with Communist China, and so make large concessions to the oligarchs of Peiping, even to the point of maintaining that the legitimate government of Cambodia is the ferocious Khmer Rouge regime, now driven into Thailand—the domination with the worst “human rights” record in this inhumane twentieth century—merely because such recognition suits Chinese policy. Such is hard realism in diplomacy. Then we salve our consciences by telling El Salvador to be gentle with terrorists.

Foreign policy, I repeat, is not an exercise in moralism. We assisted in the conversion of Rhodesia into Zimbabwe, with much fulsome talk about human rights addressed to the former government, because America needs the mineral resources of that country; and our statesmen calculated that it might be possible to detach the major black faction from Soviet influence. However imperfect the fulfillment of human rights in Rhodesia, justice and civil liberty are being extinguished altogether in Zimbabwe. I find it distasteful to cloak the national interest in grandiose phrases about human rights. What we were after, really, was the chromium—not the establishment of a paradise of human rights in the heart of Africa.

Whatever may be done by example and by persuasion to maintain the high principles of natural law and of civil liberty, we ought to do. But we ought not to delude ourselves into fancying that the world can be redeemed by “jawboning”—least of all by jawboning that weakens and offends such governments as are not unfriendly to the United States. And in 1987, we ought not to talk Newspeak. “Human rights” is a Newspeak term, often supercilious, readily employed to advance causes hostile to genuine order and justice and freedom. Let us not hoist ourselves by our own verbal petard.