5 How Far and Fast Can We Push the Frontier of Human Rights Observance?

5 How Far and Fast Can We Push the Frontier of Human Rights Observance? “We cannot anticipate today what we shall know only tomorrow” wrote the philosopher Karl Popper. Equally prescient is Kierkegaard’s remark, “We have to live life forward, but we can only understand it backwards.” Any discussion of widening and deepening humanity’s observance of human rights must at the onset come to terms with those two observations. Only by having some perspective on how far and fast we have come can we gauge the optimum speed we can hope for in the future. The history of the evolution of human rights norms is a long – and slow – one. True there has been a spurt over the last sixty years and, as Henry Kiss- inger argues, even more so over the last decade. “An unprecedented move- ment has emerged to submit international politics to judicial procedures [and] has spread with extraordinary speed”, he recently wrote in a despairing and disparaging tone. It has been brought on in part by popular agitation personi- fied by the rapid growth and influence of Amnesty International and Human Rights Watch, but it truly is the cumulative work of centuries, if not millennia, of political, philosophical and religious thinking, hammered out on the anvil of revolutions, wars and political debate. There is, to mis-quote one of the two most important documents in the human rights canon, the American Declara- tion of Independence, nothing “self-evident” about it. Let me repeat myself, but somewhat more fully: “We hold these truths to be self-evident, that men are created equal, that they are endowed by their Cre- ator with certain unalienable Rights, that among those are Life, Liberty and the pursuit of Happiness.” All of us know, however, that Jefferson’s self evident truths about human rights have not seemed self-evident to most of humanity for most of its history. There is no revealed truth on this subject. Indeed Jef- ferson himself was a contented slave-owner, “happy”, to use a keyword in his declaration, to impregnate his female slaves, but not countenancing giving his offspring the rights to be the sons and daughters of an important man. A UNESCO document of 1949 spoke of “the antiquity and broad acceptance of the conception of human rights,” and suggested that the discussion of such rights goes right back to the beginnings of philosophy in both the East and the West. But as Brian Tierney argues in his book The Idea of Natural Rights, “few his- 90 Chapter five torians would agree with such a broad judgment.” Kenneth Minogue has written that the idea of human rights is “as modern as the internal combustion engine.” Some have dated it as beginning with Hobbes. Others with Grotius. And Tierney himself has a lot of time for those who say the father of subjective rights was the fourteenth century Franciscan philosopher, William of Ockham. Others argue that the ancient Greeks were the first to start to think about subjective rights. However, there appears to be no elaborated doctrine of natural rights among stoic thinkers. Roman law – the most detailed of all ancient systems – similarly fell short. Many scholars have argued that a doctrine of natural rights was al- ways implicit in Judeo-Christian teaching. But Moses’ law was commandment. So was Jesus’ and Mohammed’s and although St Paul wrote of law written in the hearts of men he certainly did not go so far to say that “all men are endowed by their Creator with certain unalienable rights”. Nor can one unearth these ideas in the early history of other cultures. Natural rights theories, for all their world- wide popularity today, are essentially a relatively recent Western invention, dat- ing from around the twelfth century, at the height of the medieval period. Nevertheless, as Tierney warned us, “it is unprofitable to ask whether the 12th century “discovered” the individual. In all cultures some people are more self-aware and reflective than others. But we can say that twelfth century Eu- ropean civilization was marked, like no other culture, with a new emphasis on personalism and humanism. Not least courtly love literature explored the joys and pain of human lovers. In marriage law, by the end of the twelfth century, the simple consent of the man and the woman, without the need to go to Church, was regarded as sufficient for a valid sacramental marriage. What a human right that was! When the French Franciscan philosopher, Ockham, arrived on the scene in the 14th century he took this a step further and maintained that the tra- ditional idea of an objective natural law – which existed in Roman law – be transformed into a new theory of subjective natural rights. Natural rights and natural law, he wrote, were derived from human rationality and free will and were independent of Christian revelation. (Today Pope Benedict is an enthusi- ast of this idea of natural law.) There were other schools of thought beside his. Gratian used Stoic thought on natural law when he wrote his great canonistic work, the Decretum in 1140 and Thomas Aquinas, in turn, used the Decretum in his seminal work, The Sum- ma Theologiae, written in the thirteenth century. Later in the sixteenth century, the Spanish Dominican monks, in particular Friar Bortolome Las Casas, in their quest to save the South American Indians from the pillage, exploita- tion and murder of the Spanish Conquistadores, built on Aquinas, elaborating the idea that all individuals were children of God and “made in his image”. But they also argued their case independent of Christian revelation, asserting as Ockham did that natural rights and natural law were derived from human rationality and free will. Tragically, all the writings in Spain and all the victories won in the debating halls of Salamanca and Madrid on behalf of the Indians did little to save them from the depredations of the Spanish adventurers..

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