To: Yale Private Law Workshop From: Samuel Moyn Daniel and Sadie asked us to consider human rights as part of the search for “dispute resolution” beyond established authority structures and more specifically to confront “how it happened (if it happened) that human rights have gained such authority and legitimacy that they can interfere with the sovereignty of states.” In response, I have attached a recent writing that is, predictably, historical in nature, though mostly directed by invitation at contemporary political scientists. (I have attempted to cut out all of the material specifically directed at contemporary political science, but some things may remain.) The theme of the paper is liberalism, which I take it is connected to some of the dispute resolution processes within established authority structures that you are considering in the rest of the seminar. But my basic argument is that liberals once were generally committed to extra-state politics in the form of political empire, and have lost powerful tools for internationalizing their values since that project went wrong. Global intervention is nothing new, it is just that spaces formerly ruled through default empire recently acquired postcolonial sovereignty. If so, interfering with the sovereignty of states presupposed the globalization of sovereignty not that long ago. See what you think. 1 Human Rights and the Crisis of Liberalism Samuel Moyn People often think of human rights as liberal. If they are correct, it must follow that criticisms of human rights have to be premised on a rejection of liberalism itself. Yet while human rights do incorporate historically liberal norms, they make up only one liberal project in history, indeed a latecome one. In this essay, I give some reasons why it is inadequate to respond to criticisms of extant human rights agendas by claiming that those agendas simply incarnate liberalism — and that their opponents are therefore opponents of liberalism who must not accept its long settled normative horizons.1 In fact, the reverse is closer to the truth. One does not need to be a “radical” to be sorry about the low aspirations and minimal achievements of human rights regimes and movements today. It is enough to be a liberal. In theory and in practice, the contemporary human rights movement exists because of an abrupt truncation of, and recent break with, the majority of liberal traditions of thought and practice in modern history. If human rights regimes and movements today preserve some central liberal norms (such as those civil and political liberties listed in the first half of the Universal Declaration of Human Rights), they are a pale imitation of liberalism as a world-historical political project. If this is true, then “liberalism” is much more a sword for criticizing contemporary human rights as a tragic failure of ambition — notably in the socioeconomic domain — than it is a shield for the movement against mounting criticism. 2 The main gain that contemporary human rights provide compared to past liberalism is not, as many contend, that the former are aspirationally global where the latter was generally statist. It is, rather, that liberals have recently left behind the commitments to empire that long provided their most usual foreign policy: their central program until recently for exporting liberty abroad in the face of despotism and indigence. Functionally, human rights are post-imperial. But they lack cognate programs and institutions to substitute for the imperialism they have replaced. The trouble, in other words, is that proponents of human rights have no scheme of comparable ambition, opting instead for a minimalist approach to political and civil entitlements. No liberal would have consented to this constriction and retreat before the middle of the twentieth century, when the twin specters of totalitarianism and decolonization prompted the invention of a stripped-down and minimalist “liberalism of fear” that sticks to policing the most horrendous symptoms of misrule, organizing international politics around a summum malum and especially around the specter of atrocity. The drastic curtailment of liberalism’s ambition through the rise of its foreign policy of human rights promotion took it back to the values its belatedly canonized founders, Thomas Hobbes and John Locke, had once consecrated for domestic politics alone. They did so out of the belief that the sole plausible goal of politics in the world is the defense of order, perhaps supplemented by protection of personal freedoms (and property), rather than the construction of social freedom. In setting their sights so low, today’s liberals have unlearned crucial lessons they once prized about the need to augment and improve liberalism over modern history. They have broken with their own tradition as they pared it down to size. It follows that if human rights advocates were to be true to the entirety of 3 the liberal tradition, and adopt the risky attempt to envision global freedom through new and post-imperial means, they would have to abandon their exclusionary commitment to a minimal baseline of protection that they generally pursue so singlemindedly. They might even have to sideline individual rights, as liberals historically did in domestic politics. … Why Liberalism Marginalized Human Rights Like all traditions, liberalism is an invented one. Duncan Bell has recently shown that there is no historically stable core to “liberalism,” in spite of the attempts of a series of philosophers to locate it; and if so it is far better to write genealogically of an evolving and always contested concept that changes its own past even as it alters it present commitments.2 With this understanding, the historian of human rights can observe that the place of her concept within the larger shifting constellation of liberal values has never been fixed. Nor is it adequate to assume that once a foundational role for rights has been laid, perhaps by John Locke, the die is cast for our own future. That approach not only mistakenly supposes that Locke stood up for liberalism in the first place, when the latter was in fact a nineteenth-century category then revised substantially in the twentieth. It also understates how much radical innovation would be required to secure the central place of rights in international affairs today. It is true, of course, that Locke revised Hobbes by making more than the right to life precede political order, and by insisting on the defeasibility of the choice of 4 sovereign. But as Bell shows, Locke was never considered a liberal until the twentieth century reinvention of liberalism, when it became crucial to establish a series of rights against the state as central in the face of a totalitarian enemy. Even then, however, domestic liberalism’s foreign policy did not yet include international human rights, and no one claimed that it was imaginable or desirable to export Locke’s theory of rights to international affairs. In this assumption, they were completely faithful to Locke’s own texts. After all, Locke reserved “natural rights” for boundaried territories in which sovereign princes were to rule. He assigned to executives a wide-ranging entitlement or “prerogative” to act as prudence required in the dangerous world of international affairs — in twentieth century parlance, Locke was personally a realist.3 If so, it follows that making the inference from rights at home to rights as central principles of the international order was a chasm to be bridged rather than a bridge to be crossed. But even framing the problem so modestly skirts how uncertain and unstable a place liberals — once they existed in the nineteenth century — assigned human rights even as a matter of domestic politics, which in turn has major implications for what sort of international policies could answer to the description “liberal” in the first place. Of course, there is no doubt, as many historians have shown, that late eighteenth century natural law doctrines popular across the North Atlantic featured appeals to basic human rights. (There is persisting dispute about the sources and meanings of these appeals, though no one thinks that they had institutionally global scope for a wide range of Enlightenment thinkers.)4 But in spite of trying hard, historians have not located widespread inferences from abstract moral principles to the sort of institutional programs that political scientists now associate human rights. Still writing in view of eighteenth- 5 century natural law doctrine, Immanuel Kant insisted that “the rights of man” were “God’s most sacred institution on earth.” But by this he meant ordering principles of domestic politics. He forbade crossborder intervention, and even tolerated East Asian state autarky, mainly because his increasingly rare hatred of colonialism overrode any leap he might otherwise have made to contemporary human rights politics.5 Like Locke, Kant defined international ethics in terms of the relationship of states to one another in a fashion that would now be regarded as deeply traditional — if not realist. And he restricted his now much discussed category of “cosmopolitan right” to the entitlement of foreigners to present themselves at borders for the sake of commercial exchange, with no right to entry if they were unwanted. It is possible that Kant believed in a subsidiary right of entry for those who legitimately feared violence if they were rebuffed — effectively the non-refoulement provision of twentieth-century refugee law — but that is about it. Otherwise, Kant refused on principle to elevate “God’s most sacred institution on earth” to the literal global order.6 It is not as if the domestic premises of liberals were static as their foreign policy changed, however. But if anything, their transformations stacked the deck against human rights more and more. The best candidate for a liberal who insisted on human rights as a limitation for sovereign activity in the domestic realm was the early nineteenth-century French liberal Benjamin Constant, but even he was increasingly committed to a historicist way of thinking about the evolution of political society which made it implausible to appeal to the prepolitical norms of natural rights.