THE PROTECTION OF RESPECT AND HUMAN RIGHTS: FREEDOM OF CHOICE AND WORLD PUBLIC ORDER* MYRES S. McDoUGAL** HAROLD D. LASSWELL*** LUNG-CHU CHEN**** I. DELIMITATION OF THE PROBLEM ........................ 920 II. THE CLARIFICATION OF GENERAL COMMUNITY POL- ICIES ............................................... 927 m. TRENDS IN DECISION AND CONTROLLING FACTORS ......... 937 A. Claims Relating to Outcomes ..................... 937 1. Claims for a Basic Degree of Respect as a Human B eing ...................................... 937 a. Claims for a FundamentalFreedom of Choice in Value Participation ................... 938 b. Claims for Elimination of Slavery ......... 943 i. Factual background .................. 943 ii. Basic community policies ............ 952 iii. Trends in decision .................. 953 iv. Appraisal and recommendations ...... 977 c. Claims for Elimination of Caste ........... 980 d. Claims for Elimination of Apartheid ...... 994 i. Factual background .................. 994 ii. Basic community policies ............ 1004 iii. Trends in decision ................. 1006 * Copyright retained by Myres S. McDougal, Harold D. Lasswell, and Lung-chu Chen. This article is excerpted from a book, HUMAN RIGHTS AND WORLD PUBLIC ORDER, the authors have in progress. The authors gratefully acknowledged the criticism and comments of W. Michael Reisman, John E. Claydon, Robert H. Miller, Winston 0. Nagan, and of various members of our 1974 Seminar on Human Rights. The Ralph E. Ogden Foundation has been generous in its support of the studies from which this article is drawn. ** Sterling Professor of Law, Yale Law School. *** Ford Foundation Professor of Law and Social Sciences, Emeritus, Yale Law School. * * * * Senior Research Associate, Yale Law School. HeinOnline -- 24 Am. U. L. Rev. 919 1974-1975 920 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 24:919 2. Claims Relating to Basic Equality of Opportun- ity in the Enjoyment of All Values, that is, Free- dom from Discrimination for Reasons Irrelevant to Capability ............................... 1034 a. Claims Relating to Race .................. 1042 i. Factual background .................. 1042 ii. Basic community policies ............ 1050 iii. Trends in decision .................. 1054 In the fundamental sense with which we are here concerned, re- spect is defined as an interrelation among individual human beings in which they reciprocally recognize and honor each others' freedom of choice about participation in the value processes of the world community or any of its component parts.' Respect includes not only the perspectives or perceptions of worth by which the individ- ual is characterized by himself and others, but also the translation of these perspectives into the operative facts of social process.2 The 1. The concepts of freedom and coercion with which we work are: By freedom we mean situations in which persons have many options, with high probabilities of gain and low probabilities of loss. By coercion we mean situations in which participants have few options, with low probabilities of gain and high probabilities of loss. For comparable statements, see Deutsch, Strategies of Freedom: The Wid- ening of Choices and the Changeof Goals, in LIBERTY 301 (NOMOS IV, C. Friedrich ed. 1962): [W]e may then define freedom as the range of effective choices open to an actor, such as an individual or a group of persons. The choices of action or policy open to a group eventually can be translated by virtue of their conse- quences into indirect choices for individuals. Defined as the effective range of choices for an actor, freedom has at least four major aspects or preconditions: 1. The absence of restraint, emphasized by such classical theorists as John Locke and Adam Smith. 2. The presence of opportunity, stressed by more recent theorists of social reform, such as T.H. Green, Karl Marx, George Bernard Shaw, and Sidney Webb. 3. The capacity to act, stressed by Hegel and by more recent writers on power such as Benito Mussolini. 4. The awareness of the reality without-including both unrestrainedness and opportunity-and of the actor's own capacity. This awareness has been stressed by Greek philosophers from Heraclitus to Socrates, and by modem depth psychologists, such as the school of Sigmund Freud. Id. at 301-02. Oppenheim sums up freedom of choice in these words: Whereas social freedom refers to two actors and their respective actions, freedom of choice signifies a relationship between one actor and a series of alternative potential actions. Oppenheim, Freedom, 5 INT'L ENCYC. SocIAL Sci. 554, 556 (1968). 2. For specification of the detailed content of the values with which we work see HeinOnline -- 24 Am. U. L. Rev. 920 1974-1975 1975] PROTECTION OF HUMAN RIGHTS relevant perspectives and operations extend to all the different val- ues sought in social process and to the many distinctive institutional facilitations and deprivations by which freedom of choice is af- fected. In more precise specification, respect may be said to entail four particular outcomes: 1) a fundamental freedom of choice for all individuals regarding participation in all value processes; 2) an equality of opportunity for all individuals to have experi- ences that enable them to enjoy the widest range of effective choice in their interactions with others and to participate in all value pro- cesses in accordance with capability, that is, without discrimination for reasons irrelevant to capability; 3) additional rewards in deference to individuals who make preeminent contribution to common interests; and 4) an aggregate pattern of social interactions in which all indi- viduals are protected in the utmost freedom of choice and subjected to the least possible governmental and private coercion. It requires no detailed documentation to show that the various communities of mankind have seldom approximated, and often have not even aspired to, the full achievement of respect in terms of these four specified outcomes. Despite the increasing rhetorical acceptance in modem times of human dignity as the overriding goal for all communities, contemporary world social process continues to exhibit immense disparities between aspiration and achievement in relation to each outcome. The common assumption that slavery is a thing-of the past is belied by the facts; slavery and slave-like practices are still pervasive in some parts of the world.3 In other communities caste systems persist (with remnants of "untouchabil- ity" and rigidified discrimination); members of lower castes are denied access to ordinary avenues of mobility and advancement.4 Apartheid, as imposed in South Africa and Namibia, has become a new form of caste and segregation in which the position and free- doms of individual human beings are stratified and frozen at birth H. LASSWELL & A. KAPLAN, POWER AND SOCIETY (1950); Lasswell & Holmberg, Toward a General Theory of Directed Value Accumulation and Institutional Development, in COMPARATIVE THEORIES OF SOCIAL CHANGE 12 (H. Peter ed. 1966). Cf. H. LASSWELL, POLITICS: WHO GETS WHAT, WHEN, How (1958); H. LASSWELL, WORLD POLITICS AND PERSONAL INSECURITY (1965); POLITICS, PERSONALITY, AND SO- CIAL SCIENCE IN THE TWENTIETH CENTURY (A. Rogow ed. 1969). 3. See notes 124-30 & accompanying text infra. 4. See notes 371-74 & accompanying text infra. HeinOnline -- 24 Am. U. L. Rev. 921 1974-1975 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 24:919 on the basis of race.5 Even where hardcore deprivations in the form of slavery and caste have decreased or disappeared, there often per- sists a steady denial of equality on various grounds such as race, sex, religion, culture, political opinion, and alienage.6 The formal myth of a community may emphasize equality, yet actual conditions of deprivation and disparity may be such as to deny individuals effec- tive choice and to render the aspiration toward equality a mockery. Aside from the ongoing "class struggles" in all mankind's differing communities, the tension generated and exacerbated by racial pre- judice and discrimination, in its various manifestations, has tran- scended national boundaries and become a matter of intense univer- 7 sal concern. Too often the deliberate bestowal of honor upon individuals is abused and misused. Honor is frequently conferred upon individuals on grounds having nothing to do with actual contribution to com- mon interests. In some communities honor is still ascriptive ("he- reditary"), and in others it has become simply an instrument ma- nipulated arbitrarily by power elites for special interests. The achievement of a comprehensive civic order, in which the aggregate pattern of social interaction accords even a minimum freedom of choice, is still far from reality. In an interdependent world, where high expectations of violence prevail and a universaliz- ing science and technology have enormous impact, both construc- tive and destructive, the accelerating trend toward totalitarianism, regimentation, governmentalization, centralization, and concentra- tion' culminates in many places in patterns of social interaction in which individuals are denied even a basic minimum of choice and 5. See notes 439-650 & accompanying text infra. 6. See notes 651-79 & accompanying text infra. 7. See notes 34-337 & accompanying text infra. 8. See generally H. LASSWELL, NATIONAL SECURITY AND INDIVIDUAL FREEDOM (1950); Lasswell, The Garrison-StateHypothesis Today, in CHANGING PATTERNS OF MILITARY POLITICS 51 (S. Huntington ed. 1962); Lasswell, The Major Trends in World Politics,