All posts by Mogens Chrom Jacobsen

About Mogens Chrom Jacobsen

Mogens Chrom Jacobsen (b. 1963). Cand. Mag. in philosophy and political science from Copenhagen University. Ph.D. thesis, Jean Bodin et le dilemme de la philosophie politique moderne, Copenhagen University Press 2000. Habilitation thesis, Three Conceptions of Human Rights, NSU press 2011. Specialized in political philosophy and human rights.

Human Rights and International Relations. Some Remarks

This special issue of Nordicum-Mediterraneum contains select proceedings from the meeting of the Nordic Summer University (NSU) research circle “Human Rights and International Relations”. The meeting took place in Wroclaw, Poland, from the 24th to the 26th of February 2017, where we were very well received by the University of Wroclaw, for which we thank them warmly.

The program of the research circle, “Human Rights and International Relations”, runs from 2015 to 2017. This circle explores how human rights militancy and more generally the protection of human rights are affected by the international human rights regime and the way this regime enters state relations, and it also examines how the international human rights regime modifies the relations between states and how this is explained in international relations theory.

The contributions from this circle address the issue of human rights implementation. What happens when universal principles are translated into concrete action. Magdalena Tabernacka analyses the political battles surrounding the implementation of the Convention on Preventing and Combating Violence against Women and Domestic Violence. Barbara Gornik shows how the plan to redress the erased residents of Slovenia was derailed. Athanasia Petropoulou demonstrates how visions of European citizenship fail the test of reality. Liudmila Ulyashyna reflects on how human rights law can be rooted into national legislation through education, in order to enhance the implementation. Eyassu Gayim addresses the relationship between human rights law and humanitarian law, and reflects on the nature of the human being and its rights in both of them. If they are based on the same fundamental considerations, why implementing them separately? Mogens Chrom Jacobsen challenges common views about Protestantism as the originator or foremost promoter of human rights. Implementation often depends on how human rights conform to pre-existing ideas about religion and politics, but such conformity can also be constructed to fit the purposes of the moment.

An additional contribution by long-time collaborator of Nordicum-Mediterraneum, Prof. John McMurtry, is also included, in which the worrisome implications of Brexit for human rights in the UK are discussed, given their EU-based emanation, with special emphasis on labour, environmental and financial regulation. McMurtry, who was Honorary Theme Editor for UNESCO’s Encyclopedia of Life Support System, authored therein the encyclopaedia of philosophy called “Philosophy and World Problems”. It is in the same spirit that he offers his contribution to Nordicum-Mediterraneum, in the hope of prompt and wide circulation. Consistently, the text is listed in a new category called “Philosophy and World Affairs”.

The abstracts of the published papers can be found below, as these were submitted by the authors:

Athanasia Petropoulou

On the Margins of Citizenship: The Refugee Crisis and the Transformation of Identities in Europe

Transformations of the notion of citizenship in today’s globalized context brings us closer to what Yasemin Soysal calls a post national citizenship characterized primarily by the erosion of the national identity as the distinctive form of belonging and the generalization of rights to non-nationals that initially were only attributed to members of the polity. While this vision has proven to be rather relevant in analysing changes in contemporary membership formations, it fails in some measure to capture the shortcomings of the universal human rights regime and the inherent tensions between the status of aliens and nationals-citizens. The current so called “refugee crisis” in Europe shows the predicaments of populations seeking to escape from war and deprivation and the uncertain legal status of these populations, whose rights are seriously impaired. Drawing on the notion of the “right to have rights” the study aims to explore how the European responses in this context, based on strong inclusion-exclusion mechanisms, can be pertinent for analysing and capturing current transformations of the notion of European citizenship and its future developments. In this respect, the current shortcomings of the international human rights regime can help us reconsider the foundation and notion of European citizenship. It is further suggested that the institution of European citizenship in its current form needs to be superseded, in order to attain a truly cosmopolitan content and to provide a foundation for a universalistic human rights regime. The main proposal presented in this direction, stresses the need to rethink human rights in terms of political practices and to “rediscover” the revolutionary heritage of human rights from an Arendtian perspective.

Barbara Gornik

The Politics of Victimhood in Human Rights Violations: The Case of the Erased Residents of Slovenia

In 1992, during the process of gaining national independence, the Slovenian government unlawfully erased 25,671 individuals, mainly citizens of other republics of the former Yugoslavia from the Slovenian Register of Permanent Residents. These individuals, who later become known as the Erased, became irregular foreigners; nevertheless, many of them continued to live in Slovenia for more than a decade without enjoying basic human rights. In 2012 the European Court of Human Rights in the case of Kurić and others vs. Republic of Slovenia held unanimously that there had been a violation of the 8th, 13th and 14th Articles of the European Convention on Human rights. Following this judgement the Slovenian government adopted a compensation scheme for the Erased, where it introduced the criteria determining conditions for their redress. Building on this, the article reflects on the political and legal construction of victimhood and reveals the elements that constitute the victims of human rights violations. The article highlights the notions of political loyalty, legal conformity and territorial attachment as one of the most decisive elements of victimhood. In this manner it shows that the subjectivity of victims in the case of the Erased is not defined within the human rights discourse but is grounded in nationalist terms and categories.

Eyassu Gayim

Humanity and Human Rights: The contours of international law

Laws regulate conducts by responding to social and political requirements. This holds true for international law as well, which now follows two separate tracts, one for international human rights law and another one for international humanitarian law. If these two branches of law are intended to protect the dignity and worth of human beings as it is often said, why separate them? Does humanity really exist? If it does, how does it relate to human rights? If the two are distinct where do they converge? This article highlights these questions by revisiting the contours of international law.

Liudmila Ulyashyna

Human Rights Education for lawyers: A Case Study Into the Universality and Its Relativism

Normative universality in the international human rights law shall be rooted into national legal contexts for its effective implementation. Human Rights training for lawyers ensures that lawyers receive appropriate education for the practical application of the principle universality. The case study shows that learners often lack the knowledge of the peculiarities of international human rights law, which differ from the ”classical” public law notions. Human rights training curricula should include topics, which form lawyers´ understanding of international and national legal regimes in their interdependency. Concepts of ”International Human Rights Standards”, ”Implementation and de facto implementation”, ”Status and Role of Individual/Human Rights Defender” being delivered to learners increase their knowledge and awareness of the direct applicability of international human rights norms and make them effective actors of the two-way process facilitating “a cross-fertilization” between national law and international human rights standards.

Mogens Chrom Jacobsen

Protestant Origins of Human Rights Challenged

This paper will challenge common views about Protestantism as the originator or foremost promoter of human rights. The idea of a Protestant origin is launched by Georg Jellinek and disputed by Emile Boutmy. The idea is still current and John Witte can thus claim that Protestantism was in part a human rights movement. The point of departure for this strain of thinking is religious toleration, which is seen as a particularly Protestant achievement. We will argue that a more precise notion of what 18th century human rights were and a closer look at mainstream Protestant political philosophy will tell another story.

Magdalena Tabernacka

The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence in the Polish Social Safeguard System

The ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence in Poland was preceded by a heated debate. From the very beginning it was the object of political battles between the conservative and liberal circles. Culturally and socially conditioned position of women has influenced its operation and the scope of its implementation. The Convention is a universally binding tool which guarantees the protection of human rights in events of violence against the woman and children. The case of this Convention in Poland proofs the existence of a universal European understanding of human rights protection standards. The Convention thus has a protective function not only for individuals but also, in a broader context, for the common European cultural identity.

John McMurtry

 

Is Brexit a Neo-Liberal Coup against 45 years of Life-Protective Law and Regulation?

The self-maximizing growth of private-money power over all life and life support systems – life capital in a word – to exploit for non-producer profit is not yet recognized as a master degenerative trend built into the ruling meta program of which Brexit and Trump are the latest Anglo-American expressions. Central to this unseen meta trend is the compulsive dismantling of life-protective law and rights whose masking justification has shifted from ‘globalization’ to ‘nationalism’. The Left is befuddled. It sees the anti-Labour implications in both the financialized EU and the de-regulating Brexit with no coherent program to overcome both. The Right blindly follows the inner logic of the ruling economic model while Liberals offer only partial and incompetent market fixes for collective life capital sustainability. All fail to see Brexit’s giant step towards life capital degeneration and eco-genocide at the margins as environmental and civil commons are stripped of their public funding by privatization and de-regulation.  The cumulative carcinogenic conversion of organic, social and ecological life organization into ever faster private money-profit sequences multiplying to the unproductive few is the predictable system result.

 

Protestant Origins of Human Rights Challenged

This paper argues that certain core elements in Protestant theology are incongruent with human rights as they were understood by the 18th-century declarations. These declarations expressed a liberal understanding of society that would leave the individual a rather extensive sphere protected from government intervention. Protestant theology exacerbates the sinful nature of man and in order to do this it sets a very high standard for morality which eliminates the classical distinction between command and counsel (strict and loose duties). Such a distinction was the basis for limiting the intervention of government into the individuals’ private life. The absence of such a distinction does not oblige the state to intervene, but there is no generalized guarantee against such intervention. We are not arguing that Protestants cannot be liberals, but that they are not liberals in virtue of their religion and by moral principle.

First, we will give an outline of the discussion on the Protestant origin of human rights starting from Georg Jellinek going all the way to a recent defender of the theory in the person of John Witte. Many arguments have been compounded against the theory, but it is surprisingly tenacious. We will try to challenge the theory, as explained above, from a theoretical rather than a historical point of view, in order to show its incongruity. To do this we will discuss Luther’s conception of command and counsel and how this position reverberates in Protestant political philosophy and notably in such thinkers as Hugo Grotius and Samuel von Pufendorf. We will conclude with some consideration on the role of John Locke in establishing the liberal position of the 18th century declarations.

Protestant Origins of Human Rights

The idea that 18th century human rights could somehow originate in Protestantism was launched by Georg Jellinek in 1895. His dissertation, Die Erklärung der Menschen- und Bürgerrechte, Ein Beitrag zur modernen Verfassungsgeschichte, argued that Rousseau’s Contrat social could not be the source of The Declaration of the Rights of Man and of the Citizen adopted in France in 1789. He insisted that the model for this declaration was the American declarations and notably the Virginia Declaration adopted a decade or so before the French declaration. He argued further that freedom of religion in the American colonies was responsible for the idea to state universal human rights in a declaration. (Jellinek, 1895)

Jellinek is reacting to a view put forward by Paul Janet in his Histoire de la science politique (1887). Janet presents the declaration of rights as the very terms of Rousseau’s social contract. (Janet, 1887: 457) Jellinek argues that this could not be so, since Rousseau knows nothing about rights which individuals have before and independently of the state. In Rousseau’s state, individuals ony have those rights, which emerge from the general will. (Jellinek, 1895: 5) Jellinek concludes that the declaration must have another source and he finds it in the American declarations. He notes that such a declaration was demanded in the Cahiers de doléance and the first one was proposed by Lafayette, a war hero from the American War of Independence. He notably points to the Virginia Declaration (1776) as model for the French declaration, but he compares the French declaration carefully with several American declaration and concludes that both ideas and form derives from the American declarations. (Jellinek, 1895: 7-22). Emile Boutmy responds vigorously in the Annales des sciences politiques (1902 – Georges Fardis translated Jellinek’s dissertation into French that year, see Jellinek, 1902). These two points have, however, been conceded by scholars by now. (Rials, 1988: 352, 357; Gauchet, 1989: 14; see also Joas, 2003: 258-260)

He then asks how such ideas about declaring universal human rights came to the Americans and notes that they could not come from England, where only English rights were proclaimed. He also excludes natural law which, he says, had no problem approving slavery and such things. (Jellinek, 1895: 30-31) His own solution is to find the origin of such rights in the assertion of universal religious tolerance and freedom of thought. The first Protestant settlers refused ecclesiastical hierarchy and considered the church as a community of believers. Jellinek sees herein the seeds for a democratic polity. Since the individual believer had to relate directly to God without any hierarchical middle ways, Protestantism also emphasized individualism, and from this, he thinks, unlimited freedom of thought followed, which in its turn had to be proclaimed as a universal right. (Jellinek, 1895: 31-41) From this initial right several political rights came along. (Jellinek, 1895: 43) This relation between freedom of thought and political freedom was already noticed by Madame de Staël in her posthumous work on the French Revolution. (de Staël, 1871: 61)

It is not clear, however, neither in Jellinek nor in de Staël, how we get from the one to the others. Considering that Frederick II of Prussia, reportedly, could say, ”Argue as much as you will and about whatever you will, but obey!” (Kant, 1996: 18) without any apparent contradiction, the relation must be a rather loose one. For de Staël it is the free enquiry which leads to representative government. (de Staël, 1871: 61) It supposes that free enquiry in one area would lead to free enquiry in all areas and this would somehow make people think that they should have a say in political affairs. Jellinek emphasizes the absence of ecclesiastical hierarchy and religious individualism as decisive, and he seems to assume something similar, since specialization of other freedoms would somehow crystallize themselves around freedom of thought. (Jellinek, 1895: 43) Joas states frankly that the other rights do not emerge organically from freedom of religion, but he still wants to give it some preeminence as the foundation of the entire constitution. (Joas, 2003: 263)

Whatever the relationship might be between freedom of thought and religion and the other rights of man, it will lose much of its significance if Protestants showed little interest in religious freedom and tolerance. On this point Jellinek receives criticism from Ernst Troeltsch, who argues that Protestants churches had little such interest, while certain Protestant sects were more serious about religious freedom. Calvinism, which was the dominant Protestant denomination in the Colonies at this time, did only accept a limited kind of tolerance. According to Troeltsch, full acceptance of other religions was only embraced by spiritualists like the Quakers, Baptists and Roger Williams. They were the only one who could conceive freedom of thought and religion as an inborn human right. (Troeltsch, 1923: 758 ff.) Jellinek takes account of this in the second edition of his work, but insufficiently, Troeltsch suggests. He would attribute a much larger importance to Enlightenment thinkers. (Troeltsch, 1923: 764-765 see the note.)

In fact, religious toleration was rather limited in the American colonies. Troeltsch notes that the New England Puritans wanted free religious communities and forced no one to enter the church, but they did not tolerate any other church or denomination and important citizen’s rights was conditioned on membership of the church. (Troeltsch, 1923: 759) Ralph E. Pyle and James D. Davidson present a schematic overview regarding toleration of dissent and restrictions on citizens’ rights in 17th and 18th century colonial America. In most cases there is no toleration of Catholics. In some cases nonconformist, Quakers and Baptists are not tolerated. Office-holding and voting rights was nearly always denied Catholics and often reserved for a particular denomination or more generally for Protestants. (Pyle & Davidson, 2003: 66-68) More colourfully, Kenneth C. Davis denounce what he calls the myth about religious tolerance in colonial America. The Puritan fathers did not tolerate opposing views. Dissidents such as Roger Williams and Anne Hutchinson had to leave. Catholics and other non-Puritans had to leave as well. He recounts the misfortune of four Quakers who were hanged in Boston in 1659-1661 for insistingly returning to the city. Catholics were discriminated against regarding property and voting rights. As late as 1834 a Catholic convent was burned to the ground by an anti-Catholic mob. In the 1844 Bible Riots in Philadelphia two Catholic churches were destroyed and two people died. In the same period Mormons were also victims of persecution and massacre. (Davis, 2010)

Some states, however, did exercise a rather general tolerance; like Rhode Island, founded by Roger Williams, and Pennsylvania, founded by William Penn, a Quaker. In the first everybody was tolerated, but voting and office-holding was reserved for Protestants. In second all monotheists were tolerated, though Catholics were not tolerated for a short period. They were nonetheless excluded from office until 1776. (Pyle & Davidson, 2003: 66-68) These were the communities which according to Troeltsch and later on Jellinek saw as the champions of a human right to freedom of thought and religion. To this Gerhard Ritter answers that it is not possible to trace the human rights declaration of 1776 in Virginia to the demand for religious tolerance in the American colonies. The 17th-century charters from the founding of the colonies do not show any general human rights. They are about royal privileges and traditional English freedoms. They suppose the colonies to be essentially Christian communities. He adds that the article on freedom of thought was a latecomer to the Virginia Declaration and not without resistance from the tenants of state churches. (Ritter, 1949: 240) To this, Hans Joas adds that a staunch defender of religious freedom such as Thomas Jefferson was a Deist and no direct heir to Puritan thought. (Joas, 2003: 262; see also Davis, 2010) As Troeltsch suggests, Enlightenment thought is probably a more likely source of Jefferson’s commitment to this cause.

At this point one would say that this discussion is by now long dead and buried, but somehow phantoms are still hanging around refusing to disappear. Valentine Zuber gives a useful outline of how Jellinek’s ideas were received by French Protestants. (Zuber, 2014) The commemoration of the 400 years of the birth of Jean Calvin in 1909 was a great occasion to link the rights of man and the citizen directly to Calvin. Emile Doumergue proclaims that the Declaration of the Rights of Man and the Citizen comes neither from America nor England, but, first of all, from Calvin’s French disciples and Calvin himself. (Doumergue, 1910: 22-23) The position is argued in more detail by Jules Emile Roberty. He believes that ideas about human rights should be traced back to the Huguenot disciples of Calvin generally referred to as the Monarchomachs. They defended, according to him, the rights of the people against absolute rulers. They were defeated in France, but their ideas poured into Puritan thought in England and travelled with them to America, and they travelled back to France at the time of the American Revolution. (Roberty, 1910: 33-39) This connection between Calvin and human rights is greatly nuanced by Roger Mehl writing in 1978. He admits that neither Luther nor Calvin took any special interest in human rights. On the level of discourse such a connection is not discernable, but he thinks it can be made at the level of events. The fact that the Reformation broke the unity of faith that had hitherto existed, leads, according to him, to freedom of thought and therefrom to the other rights. (Mehl, 1978)

Mehl is not prepared to admit that Protestantism had no special relation to human rights. We are left with the idea that freedom of thought and religion, which was caused accidentally by the Reformation, is some kind of paradigmatic right from which the other rights are created by analogy. John Witte, writing in 1998, take up the same idea and go as far as to describe the Reformation as a human rights movement. (Witte, 1998) He pursues the same program in more nuanced ways in his 2007 book on The Reformation of Rights, Law, Religion, and Human Rights in Early Modern Calvinism. (Witte, 2007) We will try to dispel these phantoms of a long-deceased theory with a different kind of argument, which, in our view, grips the problem by its roots. Approaching the matter from the concept of rights itself, instead of emphasizing particular rights which might have had more or less prominence in various Protestant writers, will make clear that core tenets of Protestant theology is incongruent with the concept of rights deployed in the 18th century declaration of rights.

The Concept of Rights in the 18th-Century Human Rights Declarations

However important Huguenot writers were for developments in England and later on in America, the notion of rights had been developed to a much higher technical level in earlier scholastic tradition, and thinkers on both sides of the Channel could draw on this tradition. William of Ockham and Conciliarist thinkers like Pierre d’Ailly, Jean Gerson, John Mair and Jacques Almain employed a permissive notion of rights developed by the canon lawyers of the 12th century. (Jacobsen, 2011: 169-176, 189-199, 125-128) The permissive conception of rights equal rights with permissions, such that permissions presuppose duties. We are permitted, in the strict sense, to do everything which is not commanded or forbidden. If no duty commands us to take a walk in the park at this particular moment and there is no duty forbidding us to do so, then we are free to do it. We can do it or not as we like. This is permission which is also called a right. Upon this basis the above mentioned writers construct a consensus theory of government. Since there are no duties concerning property and government (at least after the Fall) these matters must belong to the area of permissions and people would then have to agree about how to settle these matters. They agree to share up the common property and to institute judges and governors. This scheme probably had as its purpose to bolster up the secular power against the Church. Having an independent legitimization in consent and its own area of competence, the secular power could avoid being a subsidiary of the Church. What Huguenot writers did as something rather new was to turn the very same scheme against the secular power (although John Mair had already done something similar in a Scottish context). However, the Huguenots did this opportunistically, and as soon they got one of their own on the French throne in the person of Henry IV they returned to the principle of authority.

Ockham and the Conciliarist writers had the idea, common in theological thought at the time that one should distinguish between mortal and venial sin. Only mortal sin should be enforced by the secular power. To mortal sin corresponded a limited number of duties such as not to kill, rob, etc. The result was that the secular state had limited functions, and seen from the perspective of the secular power the individual had a very extensive liberty. Everything not within the sphere of the secular power was left to the individual or the discipline of the Church. The Church had a huge social power, of course, but at the time it was exercised rather leniently. The secular power therefore left the individual with a large free space in the form of permissions. This is exactly what the18th century declarations of rights do as well. They are centred on freedom. They limit the functions of the state and create a space of liberty where the individual is free to do as he pleases. The right to publish one’s opinions (freedom of the press) limits the way the state can intervene in this kind of activity and permits the individual to exercise the very same activity. He is not obliged to do so; it is an option he has to be used in case he wishes to do so. (Jacobsen, 2011: 271-278, 281-286)

In order to delimit the sphere of the secular power, we would need a way to distinguish between duties which are enforceable by the state and other kinds of duties. Augustine of Hippo spoke about command and counsel, while modern philosophers would speak about strict and loose duty. More elaborate distinctions between duties were also possible, Gerson thus distinguished between the prescriptions of justice with strong obligation incurring mortal guilt and eternal death, lesser prescriptions with little obligation such as to honour one’s parents, slight obligation such as to observe good manners and the smallest obligation concerning perfection. (Gerson, 1706a: l. 5, c. 61-63) Only the duties of justice were enforceable by the state, while the others were considered too difficult to ascertain precisely or too demanding for ordinary man. Gerson, and his fellow theologians of the Sorbonne, had a rather forbearing attitude to human frailty. This would change radically with Martin Luther, and at the same time he renders useless the distinction which made it possible to establish for the individual a guaranteed sphere of freedom.

Martin Luther[1]

Luther does not as such abolish the distinction between command and counsel, but he only acknowledges one counsel, namely celibacy. According to the ordinary understanding of the distinction, counsels are about these things Christ teaches in Matthew 5: not to take revenge, not to return evil with evil, not to be litigious, giving one’s coat when one’s tunic is taken, turning the other cheek, going another mile with the person who obliges you to go one mile, not to resist evil persons and to be benevolent towards your enemies. In Luther’s view all this was not counsels, but commands. (Luther, 1889: 580-581) Among the counsels the ordinary view also adds poverty, obedience and celibacy. Luther reinterprets poverty spiritually as detachment from worldly things and saps the basis for monastic life. Obedience is evangelical obedience and incumbent on everyone. Only celibacy survives, since both Christ and Paul expressly praise celibacy. Celibacy, however, does not make anybody perfect, but can be advised for other reasons. (Luther, 1889: 583-644)

What Luther is saying is that the limits imposed as sufficient for salvation has been set too low, for what is in reality commands has been interpreted as counsels. The traditional view considered only the transgression of the duties of justice as a mortal sin barring one’s way to heaven. This is clearly expressed in the censure of Luther’s work by the theologians of the Sorbonne. If the duty not to revenge oneself was not just a counsel, but a command the Christian law would become too burdensome. (Luther, 1889: 592-593) This is uninteresting for Luther for he is not concerned with the accomplishment of the commands, but they should instead reveal our impotence and drive us into the arms of Christ. Only faith can save us and faith is a free gift from God. The utter impossibility of the commands should disclose for us how profoundly sinful we are and make clear for us that only God’s grace can save us. (Luther, 1889: 208-209, 211; Cristiani, 1946: 74)

This stress on human sinfulness and our inability to overcome it by our own means is a key feature of Protestant theology and this feature has some interesting consequences for political philosophy. Luther is not saying that the commands should not be accomplished, but any attempts to do that will fail if it is not guided by faith. Those who have faith will have no need of the law; they will accomplish the law spontaneously. There are, however, few such people, so the law has two functions. It should show us how incapable we are to fulfil the law perfectly thus making us humble and receptive to God’s message. The other function is restraining keeping all those who are not true Christians, that is the majority, from doing evil deeds. This second function belongs to the secular power, and it should preserve peace, punish sin and restrain evildoers. (Luther, 1889: 606-608; 1888: 213-214; 1900: 253-268) We must assume that sin is here understood as the external breach of the commandments, since the secular power only rules over the external affairs in this life such as the life and property of persons. This power cannot command us to believe something in particular, since people’s beliefs are out of its reach. (Luther, 1900: 262-268)

This would suppose a distinction between those prescriptions which can be enforced and those which cannot, such as believing or being generous. The enforcement of the secular power should preserve peace and repress sin. In some sense this is not very different from what the Parisian doctors would say, but in between the notion of sin has changed. Luther renders the notion of counsel utterly useless and eliminates at the same time the distinction between mortal and venial sin. (Holl, 1932: 211) There being no distinction between mortal and venial sin, all sins, at least in their external expression becomes punishable by the state. Before, sin, that is mortal sin, was a minimal standard for salvation. Now, sin is a much more demanding notion. We would then expect the Protestant state to be much more invasive, while the Sorbonne theologians would be much more lenient and indulgent towards human frailty. Luther actually castigates in this spirit the existing Church for laxity. They do not preach, teach, forbid or punish anything. He insists that the spiritual power should punish and correct adultery, indecency, usury, greed, worldly luxury, unnecessary dress and the like with excommunication and legal measures. (Luther, 1888: 255) Max Weber notes something similar when he says that the Reformation did not do away with ecclesiastical power. It replaced a formal, but in fact barely sensible domination, with an extensive domination penetrating into both the domestic and public domains in order to regulate the whole conduct of life. (Weber, 1999: 20) According to Troeltsch, Lutheranism left it to the secular power to exercise this control, while the Calvinist congregations exercised this control themselves. (Troeltsch, 1923: 629)

Protestant Political Philosophy

This more invasive state is also recognizable in Protestant political philosophy. Even though the distinction between command and counsel returned to prominence it was considerably reworked. A distinguished Protestant political philosopher is Hugo Grotius. He adhered to Arminianism, an outgrowth from Dutch Calvinism. Arminians maintained that only faith could save, but allowed man some freedom to accept or reject God’s grace. However, this does not save man from total depravity. The difference from orthodox Calvinism lies only in the remedy for this depravity. In spite of this slightly more lenient position, Grotius maintains the overall position outlined by Luther. All in all Grotius presents a political philosophy compatible with a rather illiberal society.

Grotius adopts a permissive conception of rights. These rights are permissions seen from the perspective of a range of duties. (Grotius, 1646: I.1, 3-4 II.2-3, 20, III.4, 10) These duties can have different origins. Some originates in natural law as inherent in man’s social nature. Others depend on divine will and originate in divine positive law. (Grotius, 1646: Prol. § 6-9) Other again stems from human or civil law established by the social contract. Just as they can enter the social contract they can also oblige themselves further by particular contracts. (Grotius, 1646: Prol. § 16-17, 40; II.15 vi.1 p. 265) These different origins of human obligations relate to each other a bit like Russian dolls. The innermost duties of the natural law leave a certain space of freedom to individual man, but divine positive law can restrict this freedom further (without contradicting the duties of the first law). The remaining space of liberty can, however, be further restricted by human law and particular contracts. What is important to notice here is that there is no limit to how this freedom can be restricted.

Grotius does distinguish between different kinds of duties, but this does not lead to any important limits on state power. He does exclude people’s beliefs and virtues such as generosity, gratitude and compassion from public enforcement as far as they are inner states. (Grotius, 1646: II.20 xx.1 p. 329) He does distinguish between justice, strictly speaking, which can be exercised between equals in the natural state and duties which can only be enforced by a superior in a state. These duties are self-regarding virtues and charity and both of them can be enforced by the state. (Grotius, 1646: II.25 iii.2-4; I.2 i.3 p. 16) He emphasizes that the state could use amendatory punishments in order to make people better, and he mentions an example from the Locrian Code where someone was punished for drinking wine against the prescriptions of the doctor. (Grotius, 1646: I.1 ix.1 p. 3-4) He is not saying that they should always do this, but there is clearly no general limit that would bar the state from doing it.[2]

This position does not change very much when we consider a Lutheran political philosopher such as Samuel von Pufendorf. He espouses the same permissive rights. He explains that some things are lawful or indifferent things, and as such they are a medium between commands and prohibitions, but he specifies that they are not like lukewarm water, which partakes in both hot and cold. The indifferent should be distinguished from good and bad and does not partake in any of them. Indifferent actions are optional and can be performed as one pleases. The laws permit what is neither commanded nor prohibited, and in this way it defines a general liberty modifiable by new laws. (Pufendorf, 1716: I.2.9; I.4.7-8; I.3.14; I.7.2; I.6.15)

He distinguishes between perfect and imperfect obligation. The first kind of duties is necessary for the very existence of society, while the others only contribute to its well-being. The first can be asserted by force, while the second cannot, and he mentions piety, reverence, gratitude, humanity and beneficence. (Pufendorf, 1716: III.6.10; I.1.19; I.7.7-8) It seems like the first kind of duties is enforceable in their own right even outside the state, while other kinds of duties like assisting people in need, which is only obliging imperfectly, can be enforced by the state and then turned into a perfect obligation. (Pufendorf, 1716: II.6.5-6) He explains that law is not only about strict justice incurring perfect obligation, but also concerns the self-regarding virtues, and that is the reason why laws are often made against drunkenness, sumptuousness and the like. In this way many duties imposing only imperfect obligation are strengthened by laws. (Pufendorf, 1716: I.6.4; III.3.8) [3]

We have here the same general scheme as with Grotius. We are obliged to all virtues by universal justice and everything outside the mind is in principle enforceable by the state. Some duties suppose a particular attitude, such as generosity, and cannot as such be enforced, but the external part of it, namely helping the needy can very well be enforced by the state. However, some duties are such that they can be upheld in the state of nature, and they are inherently perfect, while other (external) duties can only be perfect in virtue of the state. The distinction between enforceable and non-enforceable duties now turns only on the external and internal side of the duties, such that only the attitude is inherently out of reach of the state. The distinction we found with the Sorbonne theologians did not operate uniquely on this count, but delimited materially the proper functions of the state, such that a large amount of external behaviour was out of reach of the state.

John Locke subscribed to this view as a young man (Locke, 1967) but later he made an important move which somehow returned the situation to the time of the Sorbonne theologians. Locke reintroduced the distinction between strict and loose duties such that the functions of the state were limited materially. (Locke, 2006: 140-144, 283, 235, ; 1870: 14, 29; King, 1830: I p. 206-215) The context was, of course, different now. The huge social power of a unitary Church had disappeared, and this added a new dimension to freedom. It was the life, property and freedom, religious freedom included (to some extent) that should be protected against the state, and not the state against the ecclesiastical power. Like many of his contemporaries he had moved away from salvation from faith alone and embraced some version of work righteousness. (Baker, 1985: 129-130, 133) We are not suggesting that work righteousness was the cause of this move, but Locke did no more have a theology which would impede such a move. The reason probably has to be found in the political context of the time.

Conclusion

In order to highlight human sinfulness Luther set the bar much higher. The prescription of the Sermon of the Mount (Matthew 5) is not taken as two levels of obligation, one for ordinary people, and one for the perfect. We should never take revenge, never return evil with evil, never be litigious, always give one’s coat when one’s tunic is taken, always turn the other cheek, always go another mile with the person who obliges you to go one mile, never resist evil persons and always be benevolent towards your enemies. In fact, we should not even think about doing evil things. Clearly, no one is able to do this, and this is exactly Luther’s point. However, in setting the bar at such a high level, he also abandons the individual to the secular power which is entrusted with the task to ensure the external compliance with this ideal. We no longer have any other criteria for limiting the extent of the secular power. This is the price to pay for exacerbating human sinfulness. This appears as a core element in Protestant theology, and this would bar Lutheranism, Calvinism, Arminianism, most Baptists and other Protestant denominations subscribing to the total depravity of man, from establishing general material limits to the secular power. The only distinction they could make was one between belief as something of the mind and other matters, and this could lay the foundation for freedom of religion, as it did with Roger Williams, but this would still leave the high moral standards to be enforced, thus making a more invasive state possible. It is difficult to see how the other freedoms could be produced by some kind of gemmation from religious freedom. We are here far from the liberalism of the 18th century declarations. They left moral matters out of the realm of the state.

One might object that the Quakers were a special case, challenging the notion of total depravity, but they are, on the other hand, notoriously uninterested in theoretical questions, and therefore an unlikely candidate for having developed the theoretical language of universal rights. Even though they are an outgrowth of Calvinism it is disputable to which extent they are Protestants. What we have tried to argue here is that core Protestantism is an unlikely originator of universal human rights in the 18th century sense. It does not caution an extensive space of liberty as they do.

Bibliography

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Endnotes

[1]            This and following sections reproduces ideas presented in chapter 8 of Jacobsen, 2011.

[2]           For a more detailed interpretation, see Jacobsen, 2011: 216-225.

[3]           For a more detailed interpretation, see Jacobsen, 2011: 225-233.

Human Rights. The question of origins

According to Samuel Moyn, literature on the history of human rights has proliferated in the last three decades; a subject which hitherto had drawn very little attention.[1] My own book, Three Conceptions of Human Rights is one of these histories, which was later supplemented by two articles in the Journal of Constitutionalism and Human Rights.[2] The most recent of these articles is, among other, critical of Moyn’s own attempt of such a history in his book The Last Utopia. This article gives an outline of ‘my’ history of human rights and my critique of Moyn.[3]

Studying the origin of documents such as the French declaration of 1789 and UN declaration of 1948 is no simple matter. The provisions of these documents are elaborated collectively in complex ways and shaped by multiple influences, which can be difficult to disentangle. The provision concerning habeus corpus surely originates in the English Middle Ages and so forth. We have not tried to disentangle all these influences, but instead focused on the conception of rights discernable in these declarations. The conception of rights implicit in these declarations tells us something about the philosophical attitude guiding these texts independently of how they were produced. What we have then endeavoured to do is to trace the origin of these conceptions of rights in order to insert them into their philosophical and societal context.

This analysis allows us to conclude that human rights in the sense used in the 1789 declaration could not originate in the Greek and Roman antiquity. Such a conception of human rights is guided by the desire to give the individual a wider liberty implemented through individual permissions called rights and protected by the duties of others to respect these. Even though concerns for liberty was not absent from ancient Greece, such a concern was not articulated philosophically, and there is no reason to believe it sparked later concerns for liberty. We argue that such a concern was revived and articulated philosophically due to the encounter between Christianity and Greek-Roman philosophy in the first centuries of our era. The fixed rules of the Decalogue served as background obligations for the definition of permissions, which the canon lawyers of the 12th century renamed as rights. Human rights in the sense of the 1948 declaration would originate in a different tradition. While this tradition relies indirectly on Greek-Roman philosophy and in particular Aristotle, the actual elaboration of such a human rights theory is a recent phenomenon, even though antecedents can be found in Edmund Burke. Here rights are conceived as instruments for the good life and human perfection. In the 1948 declaration this idea is expressed as the development of human personality. We have rights in this sense because otherwise we cannot perfect ourselves, which is our duty. Rights and duties are thus two sides of the same coin. Since rights serve perfection, we call this a perfectionist conception of rights.

The main thrust of the above-mentioned book has in this way traced two traditions of philosophical thought proposing each their understanding of human rights. The significance of these two traditions goes beyond the question of rights and touches on the role of morality in human life. Do humans have limited social obligations towards each other in order to ensure peaceful co-existence, while it is left to their own judgement how they should live their lives, or is moral perfection an essential aim of social life thus enabling man to realize its humanity? In the first case, rights protect the desire of individuals to live their own life, and in the second case, rights protect peoples endeavour to live a moral life. We call this last kind of theories moralizing, while the first ones are permissive. In our book we have recounted how rights came to serve these very different functions, and we will here shortly summarize our findings.

Short Outline

Moral philosophy in Greek and Roman antiquity is with few exceptions perfectionist. Most theories profess a species of eudaimonism. The key question was happiness, but they generally assumed that individual happiness was inextricably related to man’s moral perfection. Being moral and acting morally was also the objective interest of every man.[4] The general assumption was that moral action had to be determined in the particular circumstances, hence the name circumstantialism for these kinds of theories, though it was possible to devise rules of thumb which should be embodied in man as virtues giving him the right disposition towards action. Different from these are theories issuing in universal and inflexible act prescriptions. All ethical theories have some aim or guiding concern, but these aims or concerns can issue in particular prescriptions for acting (act prescriptions) depending on the circumstances as the antique theories generally did or ask people to follow inflexible rules (universal act prescriptions), which was unknown in Greek and Roman moral philosophy.

Plato diverges somewhat from the general scheme common to Antiquity, making reason the key notion. He is still rather sceptical about universal and simple rules.[5] How happiness was related to virtue and reason could then be explained in different ways and from there stems the various philosophical schools which thrived at different times in the Greek and Roman world. The antique world-view assumed that the world was reasonable and intelligible for man. This view was seriously challenged after the emergence of Christianity and this brought about an important rupture which changed the basis for philosophical reflection radically.[6]

The Judeo-Christian God was a commanding god demanding obedience from the believers. The idea that certain universal act-prescriptions had to be followed was foreign to Greek-Roman philosophy, which was thoroughly circumstantialist. Still, Christian apologists had to defend their religion within the terminology of Greek-Roman philosophy. For this purpose Platonism was a particularly convenient intellectual structure. Identifying God with the One allowed Christianity entry into the Greek-Roman culture, but the commands of God could not be ignored. The distinction between law and counsel made it possible to combine both considerations. In this way we got a distinction between two different kinds of obligation. Different authors could emphasize this or that obligation, but any Christian author somehow had to find a place for the law. The authority of Scripture had to be accommodated to Greek-Roman philosophical reasoning, since Scripture itself was presented as supported by reason.

Different solutions could make the synthesis between Greek-Roman philosophy and the Judeo-Christian religion work. For Western Christendom Augustine is the central figure. Inspired by his reading of Paul, Augustine developed a notion of permission, which could highlight the notion of Christian liberty. He wrote against those who make out of anything disadvantageous a sin. We can do many things without sin, which are not necessarily the best thing to do. Here we can glimpse our cluster of concepts: a law forbidding and commanding certain things leaving other things to everyone’s own judgement. These things are permitted even though certain things are necessary to achieve perfection, but everyone is not strictly obliged to seek perfection.[7] When Augustine wrote this during 419–420 the Roman Empire had only recently become officially Christian. Many other communities still co-existed with the Christian communities. The context is, therefore, one of intra-communitarian dispute about doctrine, since Augustine is here responding to a certain Pollentius having trouble with Augustine’s limitation of divorce to the sole case of adultery.

When the canon lawyers of the 12th century made Augustine’s permission into an ius the context was, of course, very different. The Christian Church was now an independent government institution with its own laws and courts and judges to maintain it. Ius was a much-used term in Roman law, but rarely used in a subjective sense as belonging to an individual (one example is D. 35.2.1. pr.). Exactly how canon lawyers came to equate ius with permission, we do not know, but this use is well established.[8] That Augustine influenced them is well attested, since many of them refer explicitly to Paul and Augustine.[9] These lawyers equated the moral prescriptions of the Bible with natural law. Natural law was conceived as a collection of more or less general prescriptions. They add the idea of permissive natural law conceived as consisting of everything you can equitably do. There is some discussion about whether this is natural right proper, but the idea of a space of liberty, where the agent is not subjected to compelling prescriptions is well and truly there. Later authors will deduce from this that property and government belong to the permitted area, since the prescriptions of natural law say nothing about them, and the idea that they need the consent of everybody lies at hand. We do not know exactly when this deduction was made for the first time, but it is clearly present in the works of William of Ockham.

In between, however, we have seen a surge in Aristotelian thought on moral philosophy due to new translations. The influence of Aristotle is pervasive, but his ideas on moral and political philosophy is not followed by John Duns Scotus and William of Ockham (among others) opting instead for a position closer to that of Augustine. This is not the case with Thomas Aquinas who becomes the principal champion of Aristotelian moral and political philosophy. The challenge he faces is then to reconcile the general rules of the Decalogue with Aristotelian circumstantialism. Thomas’s solution is quite ingenious, but we argue that in the end he cannot give to the Decalogue its full significance. Thomas maintains certain inflexible act-prescriptions as a limit on the pursuit of the common good. His theory retains, however, the basic tenets of Aristotelian circumstantialism. Since agreement with some inflexible act-prescription is not a sufficient criterion for the goodness of the action, which has to be made for a good purpose as well,[10] the pursuit of the common good will therefore dominate. The distinction between strict and loose duties becomes senseless in Thomas’s theory. When all actions should further the common good, and for this reason there can be no genuine indifferent acts (an act which are neither morally commanded nor forbidden), this again implies that there can be no domain sheltered absolutely from public intervention, and this fits well with a conception of rights, which vary with the interest of the common good.

This Christianized Aristotelianism was to have an immense influence, but other more orthodox Augustinians like Ockham were worried about this influence. They felt that divine omnipotence was imperilled by this Aristotelian influence. If it was not possible to discard Aristotle completely, Ockham, taking the lead from Duns Scotus, gave Aristotelianism a stronger Augustinian imprint by emphasizing the divine will and the contingency of the created world. Although Ockham radicalized Scotus in many respects, he remained, on the whole, within the same overall perspective. Ockham probably developed his ideas on rights, property and government from canon law sources. In short, the distinction between strict and loose duty makes it possible to envisage individual liberty in terms of permissions within a eudaimonistic structure with beatitude as the highest end. Permissions are then conceived as rights within the limits of the act-prescriptions of natural and divine law. Other matters are left to the individuals’ own decisions, which include property and government. However, government when once settled cannot be revoked except in extreme cases.[11] The point of this theory was not to empower individual members of the society politically, but rather to bolster the claims of the temporal power against the papal claims of omnipotence. This theory gave the temporal power an independent source of legitimacy, and this was again part of Ockham’s own quarrel with the pope about evangelical poverty. Ockham’s position and arguments were taken up again by the Conciliarists, but to a different purpose. Their target was not so much the pope as the papacy. They challenged papal primacy within church government and claimed that final decisions belonged to a general council. The focus had changed, but the basic theoretical construct remained the same.

At the Reformation the cluster of concepts, consisting of individual rights as permissions, the supererogatory, property and government based on consensus and the common good as common interest, goes through a major change due to the redefinition of the term ‘sin’.[12] Since the task of government was generally seen as peaceful coexistence and repression of mortal sin, and sin became a much more comprehensive term, the task of government was accordingly greatly enhanced. There was now much larger room for state intervention, and Reformation governments could decide about morality and manners. In this way, what would count as the task of government has also changed. After having initially endorsed this view, John Locke eventually went back on this move making matters outside natural law to no business of government,[13] but now the context had changed, since different (if not all) religious communities were now living together. The duties of religion were now considered a private matter. Morality and manners, which were supervised by the Catholic Church before the Reformation, were now left to religious communities, between which people could choose. The area outside government action thus acquires a different content by this difference of context, since people now have greater liberty to choose their religious affiliation.

We argue that this Lockean view greatly influenced the drafters of the 18th century declarations of rights. In the American context Locke was important, but it is disputed how important he was. Recent scholarship tends, however, to reinstate the importance of Locke.[14] What makes Locke so important for us is the way he distanced himself from earlier Protestant political philosophy. Outside the concentric rings of natural and divine law, the Protestant prince could legislate according to his best judgement. Locke, on the contrary, limited the role of the prince to particular functions, and thus re-created a space of liberty for the individual. This solution was implemented in the American declarations (Virginia declaration and the Declaration of Independence) with Locke as the most probable inspiration. Even if this thesis is disputable, it is quite clear that these declarations are focused on freedom deploying a permissive conception of rights, and this is the most important point for our thesis. We can draw the same conclusion regarding the French declaration of the rights of man and the citizen, and as such link the 18th century declaration to the Augustinian-Ockhamistic tradition. However, while the rights language of permission and the consent theory of government formerly served to bolster the secular power against the spiritual power, the same language now serve to bolster the individual against the secular power. While the Americans used it against their colonial master, the French used it against their sovereign master, the King. Again, we have argued that Locke was particularly influential in implementing this solution.

This solution was not met with universal approbation. Both during the drafting process and after the adoption, the French declaration was severely criticized. Most of the critique is derived from a moralizing theory proposing an end, which makes inflexible act-prescriptions impossible or unfeasible. On this kind of theory it is not possible to have a fixed and stable space of liberty. Their critique concerns partly the impossibility of conferring eternal and indefeasible rights on individuals, partly the undesirability of abandoning people to their own egoism. The best-known critics are Edmund Burke,[15] Jeremy Bentham[16] and Karl Marx.[17] The theories of Burke and Marx have been described as perfectionists, since they harbour a positive ideal about human perfection, while this is not true about Bentham’s utilitarianism. Bentham and Marx reject the rights of man altogether, while Burke is not unwilling to use this term, though in a perfectionist sense.

Strong forces were working against human rights as they were understood in the 18th century. The Catholic Church remains critical, and the Church will eventually adopt their own concept of human rights inspired by Thomism and corresponding to the special sense Burke gave to human rights. Different forms of Marxism and Socialism remained hostile to human rights, considered as a species of bourgeois ideology. Some trends within socialism, for example Jean Jaures in France, adapted the human rights discourse to Socialist goals. However, human rights in the 18th century sense is still important in non-utilitarian liberal thought. Different forms of utilitarianism or more broadly non-perfectionist circumstantialism reject human rights or give them some subordinated role in their system as rules of thumb or guidelines. More historically minded or social science inspired approaches would also be sceptical about human rights. The ‘rebirth’ of human rights in the 20th century was not a ‘rebirth’ of human rights in the 18th century sense, but more like the culmination of the perfectionist version of human rights whether it was of Thomistic or Socialist inspiration. These two versions seemed to converge towards one another, and after the Second World War a short-lived perfectionist consensus produced the Universal Declaration of Human Rights of 1948 (UDHR).

The Universal Declaration of Human Rights outlines the moral foundation for the contemporary international human rights regime. We argue that some of the rights in the UDHR, i.e. the economic, social and cultural (ESC-) rights, make no sense if they are understood as permissive rights, but these rights can very well be understood as perfectionist rights. Since a perfectionist end implies a perfectionist conception of rights and such an end is present in the declaration, we conclude that these rights should be understood as perfectionist rights. Other rights in the UDHR could, however, be understood as permissive rights. Since all the rights in the declaration are not permissive rights, it is difficult to understand the end of the UDHR as the delimitation of a space of liberty, but a perfectionist end would not be incompatible with a mixture of permissive and perfectionist rights, since some kinds of liberty could seem necessary to fulfil the end. In that case the perfectionist end of the UDHR would command all the rights, and the permissive rights should be used responsibly to attain this aim.

The examination of the drafters’ views as expressed in the summery records consolidates this interpretation of the text, even though it has to be explained as an overlapping consensus between two types of perfectionism. Full blown perfectionism would consist in a very dense conception of perfection, that is, a conception which gives very detailed and comprehensive prescriptions about how to live one’s life. This kind of perfectionism would have a strong moral dimension implying that social virtues are an integrated part of perfection. Social liberal perfectionism would focus on real freedom dissatisfied as they are with the formal freedom of the liberalists. Man should be made capable of effective use of his freedom, and this implies that he should possess certain qualities such as education, free time, means, health, etc. This kind of perfectionism would tend to be less dense, and do not suppose any moral dimension. The attachment of the individual to society would be due to some kind of social contract. The first conception was attributable to the Chinese representative, P. C. Chang, and some Latin American representatives, while the other conception was attributable to representatives from North America and Europe. It was, however, not possible to situate all the drafters precisely in relation to these conceptions, but there were good reasons to think that the large majority of representatives were somewhere between the two positions.

The UDHR was soon to be criticized from a liberal point of view. The economic, social and cultural rights had no place in liberal theory. These rights were not considered as real human rights. Only civil and political rights could claim to be real human rights. In order to avoid controversy and rally as large a following around human rights as possible, the human rights militancy of the 70s focused on subjects as torture, forced disappearances, arbitrary arrests on which there was wide agreement.[18] We argue against Samuel Moyn that this movement did not deploy a whole new conception of human rights. The difference between UDHR and the 18th-century declarations of rights does not lie in the existence of a special tie to the state, as Moyn claims, but in their basic philosophical assumptions.[19] We argue that the UDHR has a much larger potential for internationalization than older declarations focused on freedom. This means that this potential was present in 1948, but it leaves the question open why it did not unfold until the 70s. Our explanation goes in two steps; firstly, as Moyn also notes, the major reason for this delay was the Cold War.[20] Internationalism seemed less realistic faced with a seemingly insurmountable ideological gap. We argue that other philosophical assumptions more akin to those of the 18th century in the guise of Reinhold Neibuhr and the Realist School in international relations came into the forefront forcing internationalism into the defensive. Institutionalism within international relations theory should be taken as an expression of a new effort to open the way to internationalism on the eve of the Cold War period. Secondly, human rights activism was minimalist and focused on a few fundamental and widely consensual rights, and it did not embrace the full program of the UDHR. Moyn explains this situation and its success by the failure of alternative utopias, and there is much to say for this explanation,[21] but why the human rights ONG’s eventually adopted the whole perfectionist program of the UDHR is not principally due to a pressure for giving answers to all questions necessary for a new ‘utopia’.[22] We suggest that working within the UN framework, intellectual coherence would anyway oblige them to do so.[23]

Our two traditions are thus still at work towards the end of the 20th century. Niebuhr and the Realists assume a conception of morality very much akin to that behind the 18th century declarations, even though they have a more ambiguous relation to the declarations themselves. For them, the determination of the actual rights is not so evident, and especially Niebuhr considers this determination as a matter of dispute, where morality and self-interest are difficult to disentangle.[24] The other strand has triumphed through the perfectionism of the UDHR, whether it is of Thomistic, Socialist, Confucian or other inspiration, and the momentum seems presently to be in its favour. The West has traditionally been very much focused on fixed rules when promoting human rights internationally, which seems wholly incongruous with the UDHR, while the so-called Global South has insisted on the indivisibility and interrelation of human rights, assuming that some kind of practical reason has to decide how they support or depend on each other or how supposed conflicts between them should be solved. This was rammed home at the Vienna conference in 1993, and this battle has largely been lost by those in the West who still cherishes the idea of fixed rules. Though fixed rules leave little flexibility for maximization or optimization of an accumulative end, and continuous adaptation to changing circumstances would be more efficient in this case, the social distribution of capabilities can, however, induce some people to adapt more than others, and rigid rules can protect persons by fixing lines of protection that cannot be overruled. This idea has often been criticized as a particular Western idea stemming from an individualist society and sometimes imputed to Christianity. It would seem that this study support this idea.

The Question of Origins

The permissive conception of rights has been traced back to developments in early Christianity. The Decalogue of the Mosaic religion as they were assimilated by Christianity made it possible to establish the conceptual apparatus consisting in interdictions, commands, permissions and counsel. One could then say that Christianity played a crucial role for the development of human rights. But the Qur’an allows of the same kind of interpretation.[25] Just like Augustine speaks about prescription, interdiction, permission and advice, Muslim scholars speak about the obligatory act (wajib, fard), the prohibited act (haram, mahdhur), the permitted act (mubah, halal, ja’iz) and the recommended act (mustahab, mandub, sunnah).[26] Islamic law also embraces the principle of legality, such that actions which are not prohibited are permitted.[27] Other observers even emphasize the existence of a notion of right in early Islamic jurisprudence.[28] So why did human rights not develop in the Muslim world? If human rights are associated, as they are here, with the particular move that bolsters the individual against the state, and not with the move bolstering secular powers against the spiritual power, then we will have to note that these rights did not develop in the Christian world for 1700 years. It is thus not probable that they were indissolubly linked to Christianity, if nobody actually thought about this for 1700 years. What actually made Locke reinvent the space of liberty and Enlightenment thinkers turn this liberty against the reigning power as a special prerogative of the individual, has probably something to do with developments in contemporary society.

Our cluster of concepts is not essentially Christian, but developed in Christianity because of contingent factors such as the combination of Roman law and church government; the dispute between secular and spiritual powers and individualistic conceptions of man. Nor do they seem to be related to any metaphysical or epistemological principle. Ockham subscribed to voluntarism while Locke adhered to intellectualism. They adopted a species of nominalism, but Duns Scotus preferred realism. A Platonic view of epistemology against an Aristotelian conception makes no difference. A teleological or mechanical conception of nature is all the same, when it comes to our cluster of concepts. What then allowed this cluster to persist in spite of changing philosophical inclinations? Important spiritual or material interests must have brought this about. With respect to the Middle Ages we will point to a strong religious interest in maintaining Christian liberty which relieves men from ceremonial prescriptions and leaves them to strive after perfection of their own free will. There was an important material interest in keeping the social order clear from church and religion. These interests in freedom and the independence of secular society were an important background for the development of human rights, but they were essentially related to neither Christian theology nor philosophy. They were related to the existence of fixed rules and the dispute between secular and spiritual power. The first you could find in Islam and other religions, while the second seems more particular to Western Europe.

The Long Perspective

We have travelled a lump of human history stretching from Plato to the aftermath of the Second World War. Our account of this period must inevitably be a very concentrated one. Why work on such a long stretch of time? The concepts and terms we are using to speak about ethical and political questions often have a long history. We do not assume this history to be a smooth and simple one. Terms get new meanings or maybe plural meanings. Concepts are carried by new terms or become part of them, or they enter into new associations with other concepts, which change their significance or functions. We do not assume that terms and concepts have followed each other from the ‘beginning’ to the ‘end’. This is a complicated story, which is wholly contingent and riddled with ruptures and displacements. We do not assume that certain concepts and terms had to appear or develop in a particular way. We only endeavour to map their presence at specific moments. We establish the framework, which will allow us to study the use of terms and concepts more specifically in their concrete environment. We consider it important to have the big picture, for example when we have to compare thinkers from different periods. It is important to know that the term ‘sin’ has changed its meaning with Luther and the consequences this has for the proper functions of the state, when we compare Luther with the Conciliarists. This gives a particular edge to subsequent Protestant political philosophy, which otherwise might have gone unnoticed, since they use the same conceptual apparatus as the Conciliarists. These kinds of ‘movements’ are easier to see in the big picture. The big picture also makes it easier to see whether terms and concepts forged in one period are still pertinent in a later period. We are sometimes so used to a particular conceptual scheme that we are not aware that changes in some other context leave them without a raison d’être. This has to some extent happened with the rule-based moral theory, which persisted without its foundation in divine command, and the raison d’être somehow had to be reinvented. These kinds of disruptions are easier to spot in the big picture.

What we do is to map their presence in texts. What meets us in the first place is the terms (words and phrases) and we will have to determine their precise meaning in these texts and the concepts they might carry with them. Since we are mainly dealing with abstract and technical terms in mainly scholarly texts, we have to determine their meaning in their theoretical context. The term ‘common good’ would, for example, mean something different in the Augustinian-Ockhamistic tradition than in the Aristotelian-Thomistic tradition. In the first tradition the common good is the haphazard common interest of contingent societies, while the second tradition conceives the common good of a particular society as an integral part of the common good of an objective and universal society. Establishing the big picture will not exempt us from a contextual determination of the meaning of the particular term. However, in order to extract the abstract sense of the terms, we neither have to establish their perlocutionary nor their illocutionary sense, and neither their ideological role nor their social function or justification. Nonetheless, this extraction of meaning from the theoretical context does involve an elaborate reconstruction of the theory in question as far as this is possible.

Conclusion

 So far we have only considered two of the three conceptions. The first two conceptions studied are what John Rawls would call comprehensive conceptions.[29] The force of the third conception should then consist in being a non-comprehensive conception: i.e. a minimal standard of decency accepted by different comprehensive conceptions. This conception is defined by the fact that it allows more than one coercive normative order, and for this reason we call this conception pluralist in regard to politics. This means that human rights are not thought to exhaust the possibility for coercive measures in the state. Other normative claims can legitimately be enforced beside those of human rights. This has some implications for how we consider the function of government and consequently for democracy as a form of government. From the point of view of perfectionism it is the object of government to deploy the practical reason which will determine the decisions or enact the rules necessary for making people more perfect. From the point of view of classical liberalism it is the object of government to enact the rules necessary to protect freedom. In both cases positive rights coincide with human rights. In the third conception this is not necessarily the case. Government should, of course, enforce human rights, but these are not exhaustive, so it is somehow left to the government to fill out the rest. In some sense we are back to Protestant political philosophy here, where the prince could fill the space left over by divine and natural law. Apparently, it seems less controversial to revive this theory today, when the prince has been replaced with democracy.

What would then be the function of human rights today according to this theory? The third conception is an umbrella conception, so it can be fleshed out in various ways according to how human rights are justified, which functions are assigned to them and how the individual rights are defined. We would suggest that their function is to establish the conditions for the exercise of autonomy and individual protection against the vagaries of collective decisions. Conceived in this way, human rights allow democratic institutions a vast field within which they act freely. They are not just left with some details to settle concerning the implementation of a political project set out in advance. It is for democracy to make a choice between different political projects, and in this way human rights stand above ordinary political divides. This also means that human rights become an external standard with respect to the constitution and ordinary legislation. Human rights become the standard according to which these should be judged.

If human rights should express an actual universality, we must bring them down to a value that is likely to rally a broad consensus. We proposed autonomy, since it relates to the formation of opinion. It ensures that everyone can make up their own opinion and decide knowingly without pressures or restrictions in terms of information. This value is essentially that of the Enlightenment. This does not mean we did not know before. Socrates is a shining example to the contrary and Dumont believes that he finds it in the ancient Indian religion of the Vedas,[30] however, the philosophers of the Enlightenment strongly advocate this idea from the 17th century onwards.

If this value seems likely to rally around it a broad consensus, it is because it is a prerequisite for any discussion, and discussion is a prerequisite for any thoughtful consensus. So to all those who agree to submit to the vagaries of discussion and participate in the game of persuasion, autonomy should be an acceptable basis. This is fortunately a very large portion of the overall world population, and those are the members of the world public opinion that we must persuade. These people consider themselves as independent and for that reason they gather information and consider the arguments for and against. They constitute the future of human rights. What really matters is that people consider themselves as independent and that they see human rights as their guarantee for being able to continue to be so. The effort to promote human rights must therefore concentrate on public opinion; protect, expand and enlighten it.

Such a conception could serve as a base for the re-interpretation of the existing UN regime. The existing regime suffers from incoherence due to the fact that the covenants were supposed to implement the UDHR, which we have argued is perfectionist, but they are doing this with a traditional legal vocabulary which is dependent on a permissive conception of rights. This has created many troubles with how to cope with ESC-rights within such a conception. These rights simply do not work as permissive rights and they cannot therefore be considered as non-derogable or non-justiciable. In a perfectionist perspective all rights are derogable according to what would fit the common good and all rights are justiciable as long as this would promote the common good. In this perspective there are no fixed rules and every virtue is enforceable if this proves expedient. In order to conserve fixed rules and thus give personal autonomy a convenient protection one should take the existing civil and political rights (ICCPR) and combine them with the core ESC-rights as outlined by the UN,[31] which seems susceptible of immediate enforcement. These rights could be conceived as human rights according to the third conception.

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Notes

[1] Moyn, 2011: 58.

[2] Jacobsen, 2011, 2014, 2016.

[3] Part of the text is taken – but somewhat modified – from a second edition of my book, Three Conceptions of Human Rights, which is in course of publication. For precise and extensive references, please refer to Jacobsen, 2011, 2014, 2016.

[4] Brunschwig, 1996: 1858, 1861.

[5] Plato, 1982: 425 c-e, p. 363.

[6] Dihle, 1982: 1.

[7] Augustine, 1982: PL 40, 459–462, I.14-17.15-19.

[8] Weigand, 1967: passim.

[9] DG II C. XXVIII, c. 8.

[10] Thomas Aquinas, ST. Ia IIae 18 a. 4 co.

[11] William of Ockham, 1992.

[12] Luther, 1889: 580–581.

[13] Locke, 2008.

[14] Huyler, 1995: 1–28; Zuckert, 1994: 18–25, 150–166, 305–319.

[15] Burke, 1968.

[16] Bentham, 2002.

[17] Marx and Engels, 1976.

[18] Moyn, 2010 : 130 ff.

[19] Moyn 2010: 12.

[20] Moyn, 2010: 131.

[21] Moyn, 2010: 8.

[22] Moyn, 2010 : 218 ff.

[23] Cf. http://humanrightshistory.umich.edu/files/2012/08/Petrasek.pdf (consulted 15-04-2015).

[24] Niebuhr, 1948: 264–265.

[25] Munir, 2006: 4.

[26] Aldeeb Abu-Sahlieh, 2006: 249–254.

[27] Baderin, 2003: 14–15.

[28] Moosa, 2004: 5 ff. In fact Moosa argues that the concept of right elaborated in the first period of Islam makes certain inherited notions of ethics incompatible with modern notions of human rights. Those who consider the Islamic understanding of rights compatible with modern notions have difficulties in explaining how they abandon the presumptions of traditional Islamic jurisprudence. He believes there is no way out, so that one has to accept a quantum shift.

[29] Rawls, 1996: 140, 154–155, 175.

[30] Dumont, 1985: 37–38.

[31] Cf. Core Human Rights in the Two Covenants: http://nhri.ohchr.org/EN/IHRS/TreatyBodies/Page%20Documents/Core%20Human%20Rights.pdf