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Fictional Utopias, Dystopias, and the Problem of Evil

Fictional utopias of the early modern time, as an alternative and an opposite to classical social contract theories, and fictional dystopias of the 20th century, as the opposite of the democratic and liberal rule of law, remain a major reference or for our contemporary political debates when it comes to characterize warn against considerable dangers entailed in political options, regimes, opinions etc. Today, classical utopias are mostly overwhelmingly considered in a negative way, although there were initially designed to be a more comprehensive solution for the problem of political evil than the social contract theories. From the beginning, dystopias were designed as the greatest political evil ever. Yet, both are not only fictional, but also radically impossible to ever b realized, for reasons that have not been really analyzed yet. In the following, I enquire into these reasons.


Part 1: What do classical utopias lack in order to offer a feasible solution to the problem of evil?

Utopias offer a full-fledged, maximalist solution to the problem of evil: Unlike political contractualism, the other major modern political tradition that deals with the problem of evil, utopias offer not only a minimalist remedy for the worst evil, which is considered by contractualist theories to be Hobbes’ state of nature with a war of all against all. They also offer a model of a perpetually stable community in which all members enjoy the highest possible happiness. Unfortunately, these are either fictions or projects that have never been fully realized. It is important to note that not all utopias are fictions, some are projects. This is the case in Charles Fourier’s New Amorous World, John Rawls’ “realist utopia” (Rawls 1999, 13) and Robert Nozick’s “framework of utopia” (Nozick 1974, chapter 10) as well as of the numerous real, although short-living utopian communities that have existed since the 19th century (cf. Meißner, Meyer-Kahrweg et Sarkowicz 2001). But classical utopias, mainly from the early modern period, are fictions, and I will discuss them in what follows. According to fictionalist theories, some fictitious constructions may still have a practical value, because they present the conditions of the possibility of experience, and, more precisely, of both real and possible experience, and of both desirable and non-desirable experience. In the case of classical utopias, the practical value would be obvious: They might help with achieving the greatest happiness as the most radical remedy for the problem of evil. However, classical utopias constitute a certain kind of fictionalism, i.e., the kind of fictionalism in which fiction not only refers to nothing in the real world, but also cannot refer to anything in the real world.

In the following, I understand fiction as what is described by the authors of these fictitious utopias. By fiction, I do not mean the presuppositions or theses of utopian authors that we may consider as improbable or even as false. Fictions contained in classical utopias are really useful for the constitution of real experience. In fact, contrary to some interpretations of classical utopias (see for instance, Forst 2006), there has never been any utopian writing that intended to be either a mere satire of the utopian fictitious community that it describes or a mere critique of the real society by means of a comparison with a utopian one.

Who does use fictionalism in classical utopias? No member of the utopian community does this, because none of them consider their utopia as a fictitious world that they must pretend really exists. For each member of a utopia, the utopia does exist. The founding fathers of these utopias formulate utopia as a project, i.e., as a normative model that they implement, and not as an actual reality.  Only the authors of classical utopias present their utopia in a fictionalist way of the kind mentioned above, i.e., as something that not only does not exist, but also could not exist.[1] In the following, I will explain why it seems to me that these authors use utopias in the aforementioned fictionalist way. For the sake of convenience, I will refer only to three major classical utopias: Thomas More’s Utopia (1516), Tommaso Campanella’s Città del Sole (1602), and Francis Bacon’s New Atlantis (1624).

Classical utopias teach us (1) what the greatest good in a human community consists of, and (2) that it is impossible for human beings to achieve the greatest good, at least during their life on earth.[2] These two theses are not trivial. In fact, a typical contemporary interpretation asserts that the authors of dystopias (for instance, George Orwell and Aldous Huxley, the most well-known writers from this genre that was born in the early 20th century) teach us that the greatest happiness, as it is shown by classical utopias – which these authors of dystopias supposedly referred to in their writings – is not the greatest happiness, but instead either the greatest infelicity or the worst evil. This widespread opinion is false, because – for several reasons that I will not address here – dystopias follow a radically different intention and model than utopias. Thus, dystopias are not appropriate for either demonstrating or refuting the aforementioned thesis (2). Besides this, thesis (2) does not imply that the attempt to realize utopias leads to the establishment of a dystopia or to the greatest happiness or to the worst evil. For explaining why exactly, from the point of view of the authors of utopias themselves, it is impossible to realize utopias, i.e., the greatest good in a human community, I will inquire into the way in which these authors use fiction in their utopian works.

At first sight, the fiction that stands at the core of utopia is not related to its functioning, but also to its perfect perenniality. Yet, this fiction has a lesser fictionalist significance than one may believe at first sight, as I will explain in the following. I will then address a second fiction that, although at first sight it stands in the background, has more important consequences than the first one with respect to fictionalism: the fiction related to the institution of utopia as opposed to its functioning once it is already established. Finally, I will criticize Robert Nozick’s attempt to exclude this fiction from the utopian model in order to make it easier to realize utopia.

The perfectly perennial utopian community connects the greatest happiness with virtue under a premise of equality among all of its members. The relevant virtue consists in the opposite of what justifies leaving the initial common lordship over the land, i.e., the dominium terrae, and establishing the institution of private ownership in accordance with medieval and early modern natural law theories. The justification for instituting private ownership was (1) the vice constituted by the discord among human beings, which in turn results from other vices, namely (2) the desire of each human being to benefit from the fruits of the earth to an unlimited extent, (3) regardless of others and (4) without contributing to the production of such fruits. In medieval and early modern natural law, private ownership is justified because it makes it possible for each human being to enjoy admittedly less than in the initial community of possession, yet at least more than in the Hobbesian state of discord characterized as a state of nature of all against all. In contrast, utopias institute very detailed rules for living together, and these rules are extensively obeyed.

These rules pertain to (1) the enjoyment of the fruits in common, (2) the division of labor and the exercise of labor in order to attain common enjoyment of the fruits, which is (3) supposed to suppress the causes of discord, i.e., rivalry, desire to possess, desire of domination, and desire of glory, in order to guarantee each member the greatest possible happiness. Indeed, utopias are neither the land of milk and honey, nor original paradise, and labor and the constraints of nature exist in utopias too. Furthermore, in utopias, enjoyment is never individual, but instead always an enjoyment in common, which implies that this enjoyment always happens under the scrutiny of others in a situation of transparency.

Yet, how can one set very detailed rules for living together that are extensively obeyed while there exists the aforementioned vices (2) to (4) that precisely oppose such rules, so that in natural law theories, as well as in social contract theories (including Rousseau’s social contract), the second-best solutions of introducing private ownership must be adopted? Natural law theorists mention only one exception to the development of vices, which is the case of small communities striving for the best—or even for perfection—and the example that is always given are convents, which are supposed to exercise virtue in their communal living.

Does utopia consist in the fiction of the disappearance of all of the vices of the entire human species? Utopias’ fiction does not consist in the absence of the inclination to such vices, but in the fictitious situation that hinders this inclination to face temptation. (Kant’s realm of ends works in a similar way.). If so, then utopias fiction would consist in a situation in which: (1) each member not only believes that utopia will ensure her an enjoyment of the same share of the fruits as others, and that utopia will provide her with an extensive as possible share of the fruit, but also that exercising the aforementioned vices would be obviously disadvantageous to her, and (2) no other motivation would surpass her desire to advantageously enjoy these fruits in this way.

Yet, this conviction cannot originate in the mere comparison with the evils of the existing society, although the authors of utopias extensively describe the evils of the existing society of their time, which they consider as an instantiation of the aforementioned state of vice in which no social norm is really respected, but instead in which all social norms are violated by each individual, including the norms that should rule property rights, i.e., the right of necessity (ius necessitatis) and the right of harmless use of others’ property (ius innoxia), resulting in various evils. Concerning punitive torture, More writes in Utopia:

Therefore in this point not only you, but also the most part of the world, be like evil schoolmasters, which be readier to beat than to teach their scholars. For great and horrible punishments be appointed for thieves. Whereas much rather provision should have been made, that there were some means, whereby they might get their living, so that no man should be driven to this extreme necessity, first to steal, and then to die.

However, the motivation for setting very detailed rules for living together that are extensively obeyed does not originate in the comparison between utopia and the existing society. This point is demonstrated by the two following facts. First, the fictional narrative of utopias does not pursue — directly nor indirectly — the intention of incentivizing the members of the existing society to migrate to the utopian island. Only involuntary shipwreck victims sometimes decide to remain on this island. Second, neither the founders’ generation nor the following generations ever chose the utopian institutions instead of adopting the same rules as in the existing societies. Admittedly, one does not hide from the members of the utopia the existence of other societies. Utopia prohibits its inhabitants to travel and to get in touch with other societies, but they remain free to definitively emigrate from their island. Now, none of them decides to definitively leave it, because to all of them, utopia seems to be more advantageous than any other society. Yet, it was not for the members of utopias to decide to adopt these utopian institutions, and neither did the founders make such a decision.

In the following, I will first have a look at the way in which the utopian community is established in utopian fictionalism, in order to then answer the question: What makes possible the creation of very detailed rules for living together that are exceedingly obeyed?

The utopian order is established by a founding father, e.g., Utopus in More’s Utopia, a member of the “House of Solomon” in Bacon’s New Atlantis, etc., with each founding father receiving divine revelation. As for the political and social organization of the community, this divine revelation does not have the same content as religions. The political and social organization part of utopian divine revelation (1) constitutes the main part and the core of the utopian revelation, or even the entire utopian revelation (eschatology is widely missing, as well is pure contemplation, and the purity of the earth etc.), and (2) this social and political content is very detailed (unlike e.g., the Ten Commandments), since it contains all the utopian social norms, so that the institutional powers of utopia has to make decisions only on either technical problems or on disagreements between individuals, which, unlike in existing societies, are extremely seldom. Instituting rules out of divine revelation is radically different from social contract theories. Now, utopia and contractualism both have their starting point in two fictions. Utopia and contractualism share the first fiction, but are in opposition as to the second fiction. The first fiction is the state of nature as a state of war of all against all. For contractualists, it is the initial state of humankind without social contract; for utopias it is the existing society. (In the case of Rousseau’s Discourse on the Origin and Basis of Inequality Among Men.)

The second fiction concerns the institution of the community or of the society.  Contractualist theories explain why and how all individuals adopt a social contract and establish the sovereign. In utopias, the fully detailed divine revelation happened in the past and was experienced by the founding father(s). From this second fiction there result several consequences that are indispensable for utopias.

First, in contractualism, the submission of all to the law and to the sovereign is explained by them matching the interest of each contractor. Each contractor has a fundamental and immediate interest in her survival and for the pursuit of her happiness, i.e., to the enjoyment of a sphere of individual freedom. Now, the only way to reach this situation is the submission to the law, and the only way to protect oneself against the violation of the law by other individuals is the submission to the sovereign. In Hobbes, human beings do not have any further fundamental interests. Thus, the other interests are not guaranteed by the conclusion of the social contract, and there cannot be any unanimous agreement on them. Contractualism – whether Hobbesian or Rousseauist – consists in avoiding summon malum, because in the view of contractualism, human beings cannot reach any agreement on a more ambitious goal.

On the contrary, utopia aims at the summum bonum, on which the members do not need to find any agreement, because there is no need to determine the summum bonum. In fact, the summu bonum is already fully defined by the divine revelation. Furthermore, unlike contractualist legal provisions, the rules of the utopian community are immutable.

Second, the object of the second contractualist fiction is the process of establishing civil society, whereas the object of the second utopian fiction is the community at a much later stage than its establishment. The typically contractualist problem is the fear that others will benefit from the advantages of the social contract without contributing to or obeying it. (For the problem of the free rider, prisoner dilemma, see Gauthier 1969 ; Kavka 1986). This problem does not exist in utopias, because in the utopian community it has already been established, social norms are already much more obeyed by all than in the contractualist society. The famous argument of the “fool” is indispensable to Hobbesian contractualism. It shows that the one who decides to violate the law of the Leviathan, to which she declared full submission, is in a situation that is much worse than the state of nature as a state of war of all against all. Indeed, this violator faces the risk that the others obey the Leviathan and that she be destroyed by the Leviathan and by all united citizens of the Leviathan, which is an extremely unequal situation, unlike the initial state of war of each individual against each individual, without a unanimous and stable coalition of other individuals. Thus, the equality of vulnerability, which characterizes Hobbes’ state of nature, no longer exists for this violator.

Such a violation is foolish. In a utopia, an argument such as Hobbes’ argument of the fool is unnecessary because each individual who might submit to the temptation of free riding does not face the risk of facing a united society, but will certainly face an existing community that is even more united than a society that is governed by much more extensive rules guaranteed by full transparency. Indeed, almost all activities (labor, exchange of goods, meals, hobbies) take place either in common or according to common rules (see conjugal life in More and reproduction in Campanella). Thus, the one who violates the utopian norms must be a true fool, that is, not merely a reasonable person tempted by a behavior the foolishness of which she ignores. In other words, only the utopian fool, not Hobbes’ fool is a true fool. Although, like the contractualist society, the utopian community punishes the fool, the utopian punishment is slavery, not the death penalty or torture. Now, according to Aristotle, slavery is the status appropriate for those who are unable to lead their own life.

At first sight, there is less to learn from the second utopian fiction than from the second contractualist fiction. Indeed, it avoids two problems: (1) the problem of a disagreement on the determination and the interpretation of the institutions and rules, thanks to a divine and fully detailed revelation, and (2) the problem of the free rider, thanks to the presumed existence of a rather wide majority of the utopian community obeying the utopian order. On the contrary, the second contractualist fiction explains how political institutions can exist in spite of two real problems, and it explains it by referring to a situation in which those problems are raised in the most extreme way, i.e., the thought experiment of the state of nature. Utopia presupposes that the two problems mentioned above are already solved. A reason why utopia and contractualism are so different consists in them not dealing with the same issue, as we have already seen.

Now, whereas human beings can avoid the summum malum thanks to the social contract, of which they are the authors, they cannot reach on their own the summum bonum, since they are not the authors of divine revelation. Now, none of the authors of the classical utopias claim to report on a true revelation. The revelation reported on is explicitly a fiction. But from this, we can learn that it is impossible for human beings to reach sovereign happiness, at least in our life on earth. Unlike dystopias, classical utopias do not suggest that this implies that the pursuit of the greatest good on earth is either not desirable or even damaging. Because of the mere negative conclusion that can be drawn from them, classical utopias have never been conceived of or considered as a competitor of either political contractualism or religious conceptions of the highest good.

The intention of Robert Nozick’s “framework of utopia” formulated in his Anarchy, State and Utopia (1974) is to (1) realize utopia through suppressing the second fiction mentioned above through (2) taking into account all consequences of the renunciation of the second fiction, while (3) not renouncing of some aspects of the utopian project, but instead while (4) realizing it more perfectly than the second fiction.

Robert Nozick (Nozick 1974) provides the following reason for rejecting the second fiction of classical utopias. Desires, ends, talents, relations and emotions among individuals etc. are inherent to human nature and are so complex that it is extremely unlikely that one is able to determine the highest happiness and the virtue that is necessary to reach it. Even if a genius — like the founding father(s) of classical utopias — were able to do it, it is very unlikely that all individuals trust in the infallibility of this ability. By the way, Nozick observes that among all utopias that have been presented until now, there is not a single pair of utopias that would be compatible with one another. Therefore, Nozick replaces the second fiction of classical utopias by a double disposition.

First, the problem of the too high complexity of the utopian task is resolved by including in Nozick’s model the possibility to modify or to replace any utopian order, in order to experimentally find out what is the best utopian project. Second, the problem of the lack of trust is solved by the principle of the consent to utopia. Each individual is free to choose either one utopian community of her choice or not to choose any, each community is free to either accept or reject any participant as a member, and any member is free to leave her utopian community whenever she would like. This double disposition fulfills the two tasks of the second fiction of utopia. The first task was to avoid through revealed rules having members determine and interpret in a consensual way the rules of the utopian community, which they are unable to do. The second task consisted in avoiding the problem of the free rider through the already established existence of the utopian community.

At first sight, Nozick’s utopia of utopias seems to better realize the core intention of utopia than any other utopia. In fact, on the one hand, it guarantees that no individual will be coerced to enter a utopia she does not want to. Nozick assumes that the person who can best make a judgment on the individual’s happiness is the individual herself. Thus, if a utopia does not make its members happy, they will leave it, and it will disappear. This, in turn, motivates the members of any utopia to contribute to the happiness of each member, i.e., to be virtuous. Indeed, if some members did not contribute to the happiness of others, the other members would refuse to remain living in the same utopian community. Of course, some members might be tempted to leave the community only in order to take the benefits to which she did not contribute. In order to fix this problem, Nozick sketches a system of compensation. Thus, the Nozickean utopia, based on mutual consent instead of the obedience towards the institutions and their founding father(s), seems to ensure, on the one hand, happiness, virtue and the equal freedom of all members, and, on the other hand, the possibility for each individual to freely adhere to a very hierarchical and restricting utopian order, if she would like.

Last but not least, Nozick’s framework of utopias authorizes all utopias that have been formulated until now, with the exception of “imperialist utopias” that requires all individuals to become its members and to obey its rules. Since classical utopias do not intend to exercise domination over the whole humankind, the exclusion of imperialist utopias does not seem to modify the concept of utopia. Since Nozick’s model of utopia provides each individual with the framework that allows her to find out what she considers to be the true utopia, i.e., the utopia that will give them the highest happiness, Nozick’s model claims to be both a framework of utopias and a utopia in its own right for each member of a utopia, while allowing those people who do not wish to live in a utopia to remain in the sole contractualist framework.

In fact, for Nozick, the contractualist framework and the framework of utopias are the same. To this extent, Nozick’s work can be understood as an attempt to demonstrate that contractualism is the theory that is best able to make utopia possible without coercing anyone to enter in any utopia. In other words, utopia is made possible by the fiction of social contract. This raises the following question: Does the condition of possibility of any true utopia consist in abandoning the utopian fictionalism and adopting the contractualist fictionalism? One remark made by Nozick casts doubt on such an idea: The framework of utopia “is compatible with the realization of almost all particular utopian visions, though it does not guarantee the realization or universal triumph of any particular utopian vision.” (Nozick 1974, 319)  Indeed, it remains possible that there is no solution to the problem of determining the greatest possible happiness for all and the virtue leading to this happiness. Let us assume that it is impossible to demonstrate that there is no solution to the problem of determining the greatest possible happiness for all and the virtue leading to this happiness.

Still, it remains true that, until now, all attempts — whether actualized or merely projected — to provide a solution obviously failed, with the exception of what one never tried to realize, i.e., classical utopias that are the fictions of the realization of utopias. Utopian projects have always had few followers, and all real attempts to realize utopian communities have been short-lived and on a small-scale. All of them failed to consensually determine the greatest happiness for all and the correlative virtue, as well as—first of all—to solve the problem of the easy-rider. Now, consensus and perenniality are core elements of the concept of utopia, so that only fictitious utopias are really realized, although only within fiction. In other words, Nozick’s framework for utopias allows it to try to realize utopias, but it does not make it possible to realize utopias in any way. Asserting that it does would be a non sequitur similar to the following implication: Since the rule of law does not prohibit us to live in Socrates’ century, it makes it possible for us to live in Socrates’ century, which a time machine could make possible. The most likely outcome is that the permission given by Nozick’s framework of utopia would be used successfully first of all by communities that are neither contractualist nor utopian, that is, for example, by religious communities. In fact, religious communities can and do exist in a contractualist framework.

It belongs to the core concept of utopia in its fully developed form that utopia is a fully determined and immutable order so that it is already realized. Thus, such a utopian order is possible only in the realm of fiction. Therefore, theories that value emancipation against fixed orders — for example Nozick as well as Ernst Bloch who theorized the “spirit of utopia” — cannot account for any fully developed kind of utopia. Nozick accounts only for the permission to try to realize utopias. In the three volumes of his classical work, Bloch does not inquire into classical utopias, but into fragmentary dreams and strives that he considers as being utopian. The failure of all utopias that have been attempted has confirmed what we can learn from the fictionalism of classical utopias, i.e., the thesis according to which it is impossible for human beings to reach the greatest happiness, at least in our life on earth. The fiction represented by classical utopias shows what would be required in order to enjoy the greatest happiness, but it does not show how to reach it, which suggest that although human nature could live without evil, human beings cannot find the way to such a life without evil.


Do dystopias, which systematically destroy memory, really succeed in trying to make any resistance impossible?

The intellectual and emotional bugbear of the early modern time certainly was the experience of civil war as theorized by Hobbes’ state of nature as a war of all against all. The most formative intellectual and emotional experience of the 20th century certainly was the possibility of nuclear annihilation of the earth – in the 21st century gradually superseded by global warming – and, first and foremost, totalitarianism. And it still is. Almost all of the academic or political theorizations and instrumentalizations of these 20th century and early 21st century experience refer at some point to a fictional corpus that is still exerting a stronger impression than did fictional utopias in the early modern time: dystopias. Yet, between dystopias and totalitarianism, there is a decision difference, which I try to explain in the following.

Dystopias are conceived as the opposite of classical utopias, since they do not depict a community experiencing the greatest happiness, but, instead, a state of the world in which prevails the greatest unhappiness for human beings (or for animals meant to symbolize human beings). In fact, dystopian regimes are even unhappier than Hobbes’ famous state of nature that is a state of war of all against all. Social contract theories draw their legitimacy primarily from being the remedy against this Hobbesian state of nature that they conceive as the summum malum, the greatest evil. Now, the evil entailed in dystopias is even bigger than what social contract theories consider as the summum malum. This fact results from at least the three following reasons. All three of these reasons seem to imply the impossibility of any resistance to dystopia, despite each human being having numerous major reasons to resist them, whereas, in classical utopias, nobody has any reason to resist the utopian regime.

(1) The first reason for the impossibility of any resistance against dystopias: Hobbes’ state of nature is a thought experiment intended to demonstrate the legitimacy of the Leviathan, i.e., the legitimacy of the power of the sovereign state and its laws. This legitimacy results from the contrast with the evils that are unavoidable in the state of nature, which only the Leviathan can remedy. However, the infallible means for implementing this remedy already lie entirely in the state of nature, as an analysis of the state of nature reveals. This analysis of the state of nature, which I will contrast with the second and third reasons for the impossibility to resist dystopia, provides hope to anybody who complains about the evils of the state of nature (or of civil war) and who strives for escaping it.

On the contrary, a core and constitutive feature of dystopias is that it is allegedly impossible to leave them. This explains why in dystopias the resistance is limited to a single individual, and why there is no real organized resistance against dystopias. On the one hand, all dystopian novels detail the measures taken in order to hinder anybody to leave them, while, on the other hand, all dystopian novels tell the story of the failed attempt of a single dissenter or of a small group of dissenters not to destroy or remove the dystopian order, but merely to escape it for herself, at least in some sphere of her life. Like the gate to hell in Dante’s Divine Comedy, the title page of every dystopian novel could bear the inscription “Abandon all hope ye who enter here”. The impossibility of escaping from a dystopian regime, even individually or even only in some sphere of one’s life, results from the negation of the two following elements constitutive of the Hobbesian state of nature.

(2) The second reason for the impossibility of any resistance against dystopias: In Hobbes’ state of nature all individuals are equal with regard to their permanent, entire and mutual vulnerability, that is, with regard to their very self-conservation and to all of their belongings, at least while they are either sleeping or when they momentarily find themselves facing a coalition of other individuals. Only the Leviathan is able to guarantee the life and belongings of each individual. As soon as the Leviathan no longer guarantees them, the Leviathan would not only become illegitimate, but it would also no longer exist.

In dystopias, one person or more, and, first and foremost the dystopian order itself, are not vulnerable towards anybody whereas each individual is permanently and entirely vulnerable towards those few persons and the dystopian order itself. This is obvious in the case of the animals in George Orwell’s Animal Farm, all of whom are vulnerable against the pigs and dogs. It is also obvious in the case of the hybrid monsters in Herbert George Wells’ The Island of Doctor Moreau, as well as in the case of the humanoids devoid of many human capabilities, that is, the epsilons, in Aldous Huxley’s Brave New World. It is less obvious, but still a matter of fact, in George Orwell’s 1984, in which Winston Smith’s failed attempt to write a diary provides the evidence that he is unfortunately not capable to have more structured thoughts than those of a toddler. On the contrary, utopias either care about equally developing the capabilities of all of their members, as is the case in Thomas More’s Utopia, or establishing institutions that ensure that everyone has access to knowledge, as it is the case of the House of Solomon in Francis Bacon’s New Atlantis.

(3) The third reason for the impossibility of any resistance against dystopias: In Hobbes’ state of nature, individuals are able to behave in a fully rational way, and they exert this ability: They rationally pursue their fundamental interest, that is, the guarantee of their self-conservation and of the possibility to pursue happiness. Utopia’s members know that there exist other models of social organization and they know of which evils our societies are suffering. They understand of which advantages each member of utopia is benefiting from. The distributive advantage provided by a utopia is the greatest happiness for all. They also understand that the condition for enjoying such an advantage is that everyone be virtuous and obey the strict utopian norms.

The inhabitants of dystopias are not only unable to think and act rationally, but they are even, in the first place, incapable of developing this ability. Here I distinguish the ability from the capacity. For instance, I am unable to understand Chinese, but, because I have no pathology affecting my organs of language, I am capable of learning it if circumstances and my will are favorable. Contrary to this, the embryos and toddlers of Brave New World, who are not alphas, are submitted to a chemical and physical treatment as well as to psychological conditioning that destroys their capacity to develop any rational judgment. Among the alphas (and even the alphas plus), only the capacity of judgment related to the rationality of the ends is destroyed. Before Big Brother’s dystopia had been established, Winston Smith benefited from only the emotional education of the first stage of childhood, not the ability to rationalize or make critical judgments, which belongs to a later stage in the growth of the child in non-dystopian societies. Therefore, Winston Smith can experience the nostalgia of the society before Big Brother, but his attempt to write a diary that fails right from the beginning shows that he is not capable of thinking. The “two minutes of hate” and the fake news produced by the “ministry of truth” provokes in him, unlike in the other members of Big Brother’s dystopia, a feeling of strangeness. Yet, he is not capable of conceptualizing this feeling of strangeness into a rational judgment, and even less to transform it into a rational motivation to act for the removal of Big Brother’s regime. The intellectual capabilities at stake are also missing in the hybrid beings living in torments of Wells’ The Island of Doctor Moreau as well as in the animals of Orwell’s Animal Farm, in which even the necessary physical capacities are missing.

One –and perhaps a major– cause of the worst evils constitutive of dystopias is the definitive lack of two premises that utopias share with social contract theories: the equal, mutual vulnerability of all human agents and their –instrumental as well as formal– rationality. But one should critically inquire into whether this definitive lack can really occur in a dystopian regime. Yet, this decisive question is not addressed in essays about dystopias, nor do those essays provide any elements for answering this question. This may be due to the fact that, at first sight, dystopias look much more realistic than utopias to the extent to which they appear much easier to be realized than utopias. However, this appearance might result from circumstances related to the later period of history in which they were written. This later period of history introduced new fictional elements: new techniques of monitoring and control (for instance, the ubiquitous cameras and television screens as well as the medias of propaganda in Orwell’s 1984, and in-vitro-fertilization, somatic conditioning and synthetic drugs in Huxley’s Brave New World).

A widespread explanation of the unrealism of utopias is that human beings are allegedly not capable of complying with the strict rules and the demanding virtues underlying such utopian societies as Thomas More’s Utopia and Tommaso Campanella’s City of the Sun. This explanation is wrong, since human beings are capable of such compliance. In fact, the fundamental anthropological premises of utopias are the same as those of existing societies. The part of the utopian fiction in classical utopias that cannot be realized pertains to the transition from a pre-utopian society to the utopian community. This unrealistic transition entails the following elements: (1) It arises with a catastrophe that breaks the link to the former society in a nonreversible way; (2) institutions and rules of the classical utopian communities are presented as the product of either a divine revelation of a transcendent inspiration of a remote founding father or as never needing any modification, since they are allegedly perfect, perfection which, in turn, is due to their origin. These two features of the transition to utopia –and particularly the second one– could never be realized as they presuppose an unrealistic transcendent revelation that would be immediately and definitively adopted by all future members of the utopian regime because of its evident perfection, thereby excluding from the outset any skepticism thus ensuring its immutable validity. Utopia is attractive because it is an experiment beyond the existing societies, but it is also repulsive because it prohibits any other experiment.

The transition from existing societies to dystopian regimes shares only the first element of the transition from existing societies to utopian regimes: (1) It begins with a catastrophe that breaks the link to the former society in a nonreversible way: a war that annihilates existing societies in their deepest roots and plunges them into duress, in Brave New World as well as in 1984, the alcohol addiction of the farmer who neglects his animals so much that he lets them starve, in Animal Farm, the scandal resulting from the uncovering of Doctor Moreau’s experiments by the press in The Island of Doctor Moreau, his subsequent flight to a desert island, his odd experiments on that islands that cause the most painful torments to his hybrid and monstrous creatures. (2) The chaos and the misery that result from these catastrophes seem, at first glance, to lead to the easy establishment of a dystopian regime. But where does this impression originate? This impression is due only to the fact that (a) this catastrophe seems to completely sweep away any element of the past and that (b) the establishment of a dystopian regime occurs in a way that is no more likely than a miraculous revelation. Now, these two elements that lead to the dystopian regime easily establishing itself are not convincing. In order to demonstrate it, I must first distinguish between two kinds of dystopias as well as two kinds of explicatory factors for the irreversible establishment of the dystopian regime.

A dystopian regime may originate either from a non-utopian will of unlimited domination or from an apparently genuine utopian intention that nevertheless represents, in our view, the worst evil. The showcase example for the second kind is Huxley’s Brave New World, because it seems to have truly realized the goal of all utopias: At first sight, Brave New World is a society in which everybody seems to be entirely happy. On the contrary, in the first kind of dystopian regimes, most of the members seem to be even unhappier than in the state of nature. This is the case with 1984 and Animal Farm, for example. In the following I will call the first kind dystopias of domination, and the second kind dystopias of utopian intention.

The explanatory factor offered for declaring irreversible the establishment of dystopias of domination is the disappearance of any division of powers and of any institution of control as well as the disappearance of social norms caused by a catastrophe. Additionally, there can be a state of (real or fake) war, as in 1984, in which three empires are allegedly in constant conflict with each other. In 1984, one may doubt as much the existence of that war as the existence of the domestic enemy Goldstein, to whom a daily “two minutes of hate” are devoted, because there is no way for the inhabitants to obtain evidence of the existence of either external or internal enemies. What matters though is the everlasting state of war.

These factors (the disappearance of any division of power and of any instance of control, and the constant state of war) make it possible for the leaders to generate a full atomization of society and an omnipresent fear –or even a constant terror– which motivates the inhabitants to blind and unlimited obedience. A total lack of interpersonal sentiment prevails, with the exception of a general and radical distrust of everybody towards everybody. For instance, in 1984, the members of the party are forced to adopt sexual and sentimental abstinence and children are trained to denounce their parents, while in The Island of Doctor Moreau, Doctor Moreau terrorizes his hybrid creatures through practicing cruel surgery in the so-called “house of pain”. During the daily “two minutes of hate” that refers to the external and the internal enemy, Big Brother intends to arouse an ostensive, yet fake communion among the members and a real and direct subjection of each towards him, Big Brother.

In the case of dystopias of appearant utopian intention, the circumstance that makes it possible for dystopias to establish themselves in an irreversible way is the fact that they seem to pursue a rational project: to achieve the happiness of all members. For example, the establishment of the Brave New World was based on a diagnosis related to the causes of the economic catastrophe and of the war that overthrew the previous society: (a) imbalances between supply and demand, (b) underlying demographic fluctuations and (c) rivalries and social tensions and fights. Brave New World follows the following principles: (a) establishing a permanent and perfect equilibrium between supply and demand, (b) a strict demographic planning, and (c) a conditioning as well as a permanent drug supply and constrained drug consumption, which is supposed to ensure the happiness of all members in all social classes. We certainly have good reasons to consider Brave New World as a nightmare, as its author himself did, but, contrary to Big Brother’s intention in 1984, pig Napoleon’s intention in Animal Farm, and of Doctor Moreau’s intention in The Island of Doctor Moreau, Brave New World seems to pursue the common good, or more precisely the happiness of all, by seemingly rational means, although at a closer look, it pursues stability rather than the happiness of all members.

All circumstances mentioned above are designed to ensure, on the one hand, the establishment of a dystopian regime and, on the other hand, its irreversibility.

Let us first examine the case of dystopias of domination, especially the case of those staging animals (Animal Farm) or hybrid creatures (The Island of Doctor Moreau), which I distinguish from the epsilons of Brave New World, who are humanoids void of numerous human capabilities, because the dystopian regime designs them to feel happy –and therefore not to be unhappy about the lower tasks that are assigned to them–, which is the opposite of the farmer’s animals and of Doctor Moreau’s hybrid creatures. All animals of the farm are vulnerable to the pigs and the dogs, and all hybrids monsters are vulnerable to Doctor Moreau, without the reverse being true. With the exception of the pigs, the animals of the farm cannot read, nor remember, nor think rationally. The animals of the farm merely have emotional reactions of a low degree of complexity, and the hybrid creatures feel emotionally confused and are deprived of any genuine instinct. They know neither how to resist nor why they should resist. They just express their deep dissatisfaction or even fugacious aggressiveness, the cause of which they are unable to analyze.

Therefore, they are unable of any preventive attack, which would generate a Hobbesian state of war of all against all. Now, since this one-sided vulnerability and this lack of rationally originate in their very nature, they are not capable to overcome them, and their offspring has the same incapacity. The demonstration of the impossibility to resist would be almost made, if it would be about human beings. The reason why I say “almost” is that, even in the case of Doctor Moreau, for hybrid monsters deprived of any rationality, resistance is possible, and it can even reach victory. Moreau’s hybrids creatures finally kill Doctor Moreau and, thus, they seem to escape dystopia. Although their lack of rationality and of any genuine instinct doom them to a fatal war of all against all without any way out, Moreau’s hybrid creatures victoriously resisted their torturer. The pig Napoleon could also end up like the farmer.

Let us now assume that resistance is impossible and doomed to fail in the case of the animals as well as in the case of the hybrid creatures. Human beings –including the human beings represented in 1984 and Brave New World– are different from these animals and these hybrid creatures. Winston Smith in 1984 and Bernard Marx in Brave New World show several times that they are able to (1) make an overview judgment of the whole dystopian regime and understand its functioning, (2)  overcome fear, (3)  use cunning ruse, and (4)  become active dissenters, if necessary. The latter eventually leads them to be arrested, but this provides the evidence that they in fact resist, such that it is not impossible to resist. Additionally, nothing shows, in these two writings, that Winston Smith and Bernard Smith will always remain the only dissenters. Admittedly, both heroes have characteristics that make their case special. Winston Smith can remember the family feelings of his childhood. But perhaps other party members or proletarians outside the party have similar remembrances. Furthermore, dystopia had been established before the young Winston Smith reached the stage of his development at which intellectual education would have been given to him. Could other party members or proletarians outside the party have received such an intellectual education?

One could not answer negatively without fully skipping a generation or two. Now, without these intermediary generations, the population of 1984 would not exist, because 1984 does not foresee any system of artificial procreation including a moratorium of a generation or two. Such a generation gap is not only as unlikely as the miraculous revelations of the classical utopias, it is simply impossible. Additionally, despite his lack of intellectual education, and despite his lack of any contact with persons who would orientate him in this direction, Winston Smith is able to analyze the functioning of the so-called “new speak” and of Big Brother’s propaganda, for which he is working at the “Ministry of Truth”. He is also able to refer to a factual criterion of truth as well as to the principle of non-contradiction, which is incompatible with this propaganda. If he is able to this, there is no reason why any other person of his generation would not be capable to develop this ability, as well as any person of future generations in this dystopian regime. Furthermore, since the existence of Big Brother’s domestic enemy Goldstein is asserted only by Big Brother himself and since Big Brother systematically lies, one may doubt the existence of Goldstein and of his opposition network of active resistance, but there is no evidence either that Goldstein’s opposition network does not exist. The arrest and the brain washing of Winston Smith obviously show that resistance may fail. Yet, they do not demonstrate that any attempt to resist must inevitably fail, because logically an example can refute a universal thesis, but it cannot demonstrate any universal thesis.

What about the case of dystopias of utopian intention? Brave New World, based on the search for stability at any cost, seems to sincerely intend to make all members of society happy, including those of the lower class, i.e., the epsilons. We may disagree with the underlying conception of happiness that considers happiness as the absence of any pain. Another more widespread definition of happiness, formulated by John Stuart Mill, sees it as an entire set in which pleasure, or joy, alternates with pain, the first one being the predominant feeling, to the largest possible extent. However, despite this concept of happiness that is likely to be erroneous, and contrary to dystopias of domination, Brave New World partly shares at least one premise of equality with utopias: the goal to make all members as happy as possible, although, unlike in the case utopias, this greatest happiness is radically not the same for all, because alphas and epsilons do not experience the same amount of pleasure, since they are not capable of experiencing the same amount of pleasure. If Brave New World realized this greatest pleasure for all, one would observe at the same time an absence of any motivation to resist and an absence of any coercion, i.e., of any sanction.

Now, this is obviously not happening. Admittedly, the preference of the dissenter Bernard Marx for freedom and for experimenting with other ways of life is explained at the beginning of Brave New World as the result of a defect in the industrial artificial procreation process, that is, i.e., by the accidental addition of acid in the test-tube containing his embryo. But all inhabitants of the “brave new world” are regularly subject to moments of pain and depression, for which they must immediately take a pill in order to forget. Abstaining from immediately consuming this drug at such times amounts to an immediate resistance to the dystopian order. In Brave New World, a woman becomes pregnant, which is a serious violation of the social order and a reason for banishment, the hero Bernard Marx develops a predilection for useless aesthetic experiences, Marx’s favorite colleague is interested in knowledge for its own sake, i.e., for useless knowledge, and both are tempted to strive for banishment in Iceland, although this banishment is designed as a severe kind of punishment.

The need for the drug mentioned above shows the imperfections of industrial artificial procreation and of the somatic conditioning of embryos and, later on, of children. Furthermore, in the novel, nothing demonstrates that the combination of either displeasure or depression, on the one hand, and the command to immediately take this drug in such situations necessarily results in individuals taking this drug in order to feel relieved. Even with the most elementary knowledge of psychology, one knows that the reaction to either displeasure or depression does not necessarily consist in trying to get immediate satisfaction, nor in having recourse to a drug in order to temporarily relieve oneself from the feeling of pain or depression. Displeasure and depression can also lead one to behave in a way that violates the dystopian order of Brave New World. Now, the lack of any true punishment and of any real fear in Brave New World should certainly contribute to the success of any resistance. The suicide of the member of the Indian reservation that Bernard Marx exhibits in the “brave new world” should also been seen as a form of resistance against the utopian social order.

The thesis of the unavoidable failure of any resistance in dystopian orders does not pass the test of an analysis of the dystopias. Instead, analyzing dystopias shows that resistance remains possible. The reader’s impression that any resistance in dystopias is impossible originates in stylistic techniques. On the one hand, the dystopian novels show the broad range of technical and institutional means used by the dystopian regime as well as its monitoring and control over all spheres of life. On the other hand, the dystopian novel tells the story of an isolated individual that fails in its attempt to resist the dystopian order. The contrast between both arouses an impression of oppression that suggests unavoidability, irreversibility, and thus the impossibility to resist. Now, the impossibility to resist presupposes the lack of any capacity of will and efficacy, how ever strong or weak they may be.

Yet, one would misunderstand my analysis of dystopias if one concluded that its intention is to deliver a message of optimism. Indeed, although, on the one hand, as long as there are human beings, resistance will always be possible, even if it is eventually defeated, there is, on the other hand, an evil that is even worse than the Hobbesian state of nature as a state of war of all against all and that might make it extremely difficult, or nearly impossible, for resistance to be successful. In real life, extermination camps and nuclear weapons make it possible to destroy several times over the entire planet earth. Unfortunately, it is neither utopian, nor dystopian, yet it belongs to the real world.



Forst, Rainer 2006: Zur Normativität der politischen Philosophie des Nirgendwo. In: Abel, Günter (eds.): Kreativität. 20. Deutscher Kongress für Philosophie. Hamburg: Meiner, 92-103.

Fourier, Charles 1816. Le nouveau monde amoureux: http://classiques.uqac.ca/classiques/fourier_charles/nouveau_monde_amoureux/nouveau_monde_amoureux.html

Meißner, Joachim, Meyer-Kahrweg, Dorotee, Sarkowicz, Hans 2001: Gelebte Utopien. Alternative Lebensentwürfe, Frankfurt a.M. 2001.

Nozick, Robert 1974. Anarchy, State, and Utopia, New York: Basic Books.

Rawls, John 1999: The Law of Peoples, Cambridge, Mass.: Harvard University Press.

Walton, Kendall 1990: Mimesis as Make-Believe: On the Foundations of the Representational Arts. Cambridge, Mass.: Harvard University Press, 1990.



[1] For this reason, nobody suggested to apply Kendall Walton’s « make-believe » theory (cf. Walton 1990) to classical utopias so far.

[2] Utopias do not deal with the greatest happiness in the life after death.

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.


 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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[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