The Human Rights Culture: A Study in History and Context

By Lawrence M. Friedman

Thoughtful and provocative exploration of the human rights movement and its development as a sociological and historical trend. Unlike the typical legal or philosophical approach to human rights, this books asks why it pervades modern culture. Applies the analysis to issues of women and minorities, language and culture, privacy, religion, individualism and state sovereignty. Includes references.

• Language: English
• Publisher: Quid Pro, LLC
• Release date: May 23, 2011
• ISBN: 9781610270731

Lawrence M. Friedman

Lawrence M. Friedman is the Marion Rice Kirkwood Professor of Law at the Stanford Law School.

Book preview

An early review for The Human Rights Culture . . .

"Reams of books and articles have been written about human rights, but The Human Rights Culture is unique. It is the first comprehensive, sociological study of human rights in the contemporary period. With his characteristic erudition and graceful style, Lawrence Friedman addresses all the central topics: women’s rights, minority rights, privacy, social rights, cultural rights, the role of courts, whether human rights are universal, and much more. This surprisingly compact book presents a balanced discussion of each issue, filled with fascinating details and examples. Friedman’s core argument is that the recent rise of human rights discourse around the globe is the product of modernity — in particular the spread of the cultural belief that people are unique individuals entitled to respect and the opportunity to flourish. This terrific book will be informative not only to human rights experts and practitioners but also to people who wish to read a clear and sophisticated introduction to the field."

— Brian Z. Tamanaha

Professor of Law

Washington University

THE

HUMAN

RIGHTS

CULTURE

A Study in History

and Context

BY

LAWRENCE M. FRIEDMAN

Stanford University

Contemporary Society Series

Quid Pro Books

New Orleans, Louisiana

THE HUMAN RIGHTS CULTURE

Copyright © 2011 by Lawrence M. Friedman. All rights reserved. This book or parts of it may not be reproduced, copied, or transmitted (except as permitted by sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), by any means including voice recordings and the copying of its digital form, without the written permission of the publisher.

Published in 2011 by Quid Pro Books, at Smashwords.

QUID PRO, LLC

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New Orleans, Louisiana 70123

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ISBN: 1610270738 (ePub)

ISBN-13: 9781610270731 (ePub)

Publisher’s Cataloging-in-Publication

Friedman, Lawrence M.

The human rights culture: a study in history and context / Lawrence M. Friedman.

p. cm.

Includes endnote references.

Series: Contemporary Society.

1. Human rights. 2. Human rights—History. 3. Human rights—Sociology. 4. Human rights—United States—History. I. Title. II. Series.

JC573.F33 2011 323.19’2—dc22

Cover photograph courtesy of NASA and its project The Visible Earth, used with permission. The project is found at http://visibleearth.nasa.gov.

LICENSE NOTES, Smashwords edition: This ebook is licensed for your personal use only. This ebook may not be resold or given away to other people. If you would like to share this book with another person, please purchase an additional copy for each person. Thank you for respecting the hard work of the author.

Contents

Acknowledgments

1. Introduction

2. On the Rule of Law; and on Consciousness of Rights

3. A Small Dose of History

4. On Modern Religion

5. Is There a Culture of Human Rights?

6. Universal and Particular

7. Women and Minorities

8. Privacy and Dignity

9. Social, Economic, and Cultural Rights

10. Sovereignty and Rights

11. Some Concluding Remarks

Notes

About the Author

For Leah, Jane, Amy, Sarah,

David, Lucy, and Irene

Acknowledgments

I would like to thank Scott Shackelford, Andrew Shupanitz, Russ Altman-Merino, and David Oyer for their help with the research on this book. Also, as usual I had enormous help from the staff of the Stanford Law Library, including Paul Lomio, Erika Wayne, Kate Wilko, George Wilson, Sergio Stone, and Sonia Moss; and from my assistants, Mary Tye and Stephanie Basso. As the footnotes show, I have also used and depended on dozens of scholars who have worked in this field, and I am grateful to them. They include, among others, my colleagues Helen Stacy and Jenny Martinez. Jenny Martinez also made extremely careful, extensive, and valuable comments on the manuscript.

— L.M.F.

1

Introduction

We live in the age of human rights. An age of constitutions, declarations, manifestoes, proclaiming the rights of man (and woman). An age of aspiration—an age of longing; for freedom, for equality. In country after country, human rights are high on the political and social agenda: what they consist of, how to defend them, and debates on all sides of many issues in which they figure. No discussion of international law and international politics can ignore the human rights movement. In some ways, we live in an age of human rights triumphant. But we also live in an age of turbulence and war; an age of suicide bombs and genocide, an age of good governments and bad governments and terrible governments and governments that are miserable failures. Yet even the worst of these governments claim to be committed to human rights. The human rights movement can be trampled on, distorted, manipulated; but (apparently) cannot be ignored.

Nor is it ignored — in the world of scholarship. There is a huge and daunting literature on human rights, whole shelves and libraries: books and books and books. Most of these are written by earnest, learned people. Almost all of them are animated by a passion for human rights.

It is an impressive body of scholarship. And yet, somehow, something is lacking. The problem in general is not quantity, but quality. Or at least quality in one particular sense. The literature is vast but surprisingly narrow. Philosophers, political theorists, and lawyers write most of the books and articles. This is not bad in itself; moreover, most of them care deeply about human rights, which is also not bad in itself. Undeniably, one can learn a lot by diving into the oceans of words that these scholars have written. One can learn a lot about the textual history of those declarations, treaties, manifestoes, and covenants that have sprouted like weeds since the second World War. The literature also tells us about great thinkers of the past and the present, and what they have had to say about the rights of humankind. There are illuminating debates on many important and controversial subjects.

But what is missing, on the whole, or in short supply, is what one might call the sociological dimension. The human rights movement—the social movement that has inspired this enormous literature—is a massive social fact. But where does it come from? Why has it been so successful (in places)? Where is it going, and why? Why, in this period, unlike all others, do we have a feminist movement, a gay rights movement, a movement of indigenous peoples, a revolt of the handicapped, the aged, prisoners, students, speakers of small languages, and so on?

The sociological question nags at me. What is it about the late 20th century, and the early 21st, that has led so many millions of people, in developed countries, but elsewhere as well, to accept certain doctrines or dogmas, which then become central premises of the human rights movement? What led people to decide that all human beings are and should be equal in law and in society—women as well as men; people of all races and religions; minorities as well as majorities? To many of us, equality of this sort seems obvious, seems right, seems simply just and proper. But did any society in the past think this way? Does any traditional society, in the contemporary world, think this way? What, then, is it about modernity that pushes women—and men—in the direction of gender equality? What gives rise to the struggle—often more or less successful—for the other equalities at the base of the human rights movement?

It may seem as if there is no room for more books; but I hope this is wrong. I hope there is room for a book which explores the human rights revolution—I think we can call it that—historically and sociologically. This would be a minority approach. It would not exactly be new and untried. Still, I hope that I can add at least a nuance or two.

We can start off with a question of definition. What do we mean by human rights? Before we can talk about human rights or basic rights, or fun-damental rights, we might want to specify what we mean by a right in the first place.

It would be hard to think of more common legal terms than right and rights. These are very ordinary English words. Equivalent words meaning more or less the same in other languages are no doubt just as ordinary. Modern legal systems are all organized in terms of rights. Or, to put it another way, you can always describe the rules and doctrines of legal systems as clusters or networks of rights. I have a right to sue somebody who backed into my car in a parking lot. Adults have a right to get married—and a right to get unmarried. Landowners have the right to sell their land, inventors have a right to patent their inventions, and so on and so forth. We can indeed rephrase every rule or doctrine in terms of rights—rights of somebody or some group or some institution, rights of this or that type, rights against government, or against other people, rights for and rights against.

When we talk of human rights, or fundamental human rights, or the like, we are talking about a subset of the cluster of legal rights. But exactly what subset? Human rights is, unfortunately, a vague and slippery phrase. It has a core and a periphery. Most people would probably recognize the rights at the core. Freedom of speech, they would say, is a basic human right. Freedom to vote for and against a government is another one. Freedom to choose your religion or no religion, is also fundamental. And people in modern countries would probably sense that these rights are different somehow, importantly different, from the right to sell a used car or foreclose a mortgage.

Freedom of speech, or religion, or the right to vote, or the right to travel, are just a few of the rights people might mention if you asked them to draw up a list of basic or fundamental rights. Perhaps no two people would come up with the identical list. And the typical list in, say, France might be different from the list in Finland or Japan. Moreover, the typical list today would obviously be quite different from the list that John Locke or Thomas Jefferson would have come up with in their day.

This last comment is a way of expressing a pretty banal fact: concepts of human rights or basic rights are social facts—ideas that people have and express. These concepts are culturally and historically contingent. They are not the product of pure reason, nor are they something handed down from time immemorial; they are not the inevitable result of some facet of basic human nature. Certainly, people in past societies would never have subscribed to our concepts of human rights. For the most part, these ideas are specifically modern—they are relatively recent in human history.

Recent; and, in addition, definitely on the march, as it were. In the club of wealthy, developed countries—mostly Western, but including Japan, for example—these concepts of basic rights, fundamental rights, are growing in legal and social significance. And there is a strong tendency for new rights to get added to the list. I referred to the club of wealthy developed democratic countries. But rights-consciousness is not confined to these countries. It is most in evidence in these societies. But it is found elsewhere as well, at least among some strata of society, and perhaps to some extent in every country in the world by now. For the last few decades at least, the human rights movement and human rights consciousness have been spreading throughout the world.

I am not going to draw up a list or catalog of basic human rights, as of now, or as of any time in the past. My idea is, instead, to try to explain them; to discuss where they fit, in contemporary society; where they came from; and why. The human rights idea has tremendous power and sweep. The cluster of ideas and institutions that animate the human rights movement have enormous legitimacy. There are people who devote their lives to the cause; or are even willing to die to advance human freedoms. Where does this power come from? This might seem like a foolish question. We tend to take the legitimacy, the value, the idealism of the human rights movement for granted. But this was not always the case. Far from it.

And what makes human rights such a seductive idea? Because the human rights idea is so seductive that even those who oppose it and despise it hesitate to do so openly. Scholars have pointed out that many awful regimes, repressive regimes, dictatorial regimes, sign their names to human rights treaties, without blushing—treaties which they have not the slightest intention of enforcing. Sudan and China, to take only two examples, have ratified a number of these treaties. Indeed, since the 1980’s, repressive governments have often been in the majority, ratifying the treaties more often than their liberal counterparts.¹ Treaty ratification is not only…not associated with better human rights practices than otherwise expected, it is rather often associated with worse practices.² As we will see, some evidence points in a different direction. For now, however, I only mention the paradox of good treaties signed by bad countries. And there are also good countries—the United States for one (and it is, whatever you think of it, a lot more respectful of human rights than, say, the Sudan or Saudi Arabia)—which are extremely reluctant to sign such treaties, and sometimes simply refuse.³

It would indeed strike many people as a kind of sadistic joke to find the signature of the Sudanese government on a human rights treaty. The citizens of that country would probably not find this joke very funny. Human rights are in extremely short supply in the Sudan. Many of us in the West—and not only in the West—certainly believe that every country should enforce these rights. These rights ought to belong to the Sudanese people, just as much as to anybody else; human rights, as Jack Donnelly has put it, are the rights that one has because one is human.⁴ The rights that one has—perhaps it would be more accurate to say, the rights that people think one ought to have; that everybody ought to have. But in fact, as is well known, they are violated all the time in some countries, and from time to time in almost every country.

A right, including a human right, implies some sort of law or rule, and one that can be enforced. These laws and rules are expressed in constitutions and in bills of rights. Each country has its own version. Is there something else—something beyond the positive laws of particular countries? Is human rights law part of a body of international law? International law, supposedly, is a reality; a group of customs that countries follow, and which is not the law of one country or some countries, but of all countries; or which ought to be. The trouble is that countries do not really follow international law. Or rather, they follow it when it suits their interests, and ignore it when it does not. The Security Council of the United Nations can enforce its decisions, in some cases. But in general, there is no way to enforce international law. It is, for the most part, powerless rhetoric in the face of national interests.⁵

Certainly, human rights is not hard, positive law, insofar as this country or that lacks the framework of enforcement, or refuses to enforce these rights. In this case, it is little more than empty promises.⁶ But even empty promises sometimes have an impact. A growing literature starts out from the premise that even unenforceable promises can make a difference. Some scholars have tried to measure this impact. Human rights practice is hard to catalog or measure. As we said, most countries—rotten regimes and democratic ones alike—have a tendency to sign, sign, and sign some more (with notable exceptions). When a country signs and ratifies, does something change? The country has made a formal commitment, whether it intends to live up to it or not. Perhaps a process has been set in motion. Or has it? The research, on the whole, reaches mixed and inconclusive results.⁷ The most elaborate test, by Beth Simmons, cautiously suggests a certain impact, in some countries. The treaties have an effect on internal politics. They set visible goals for public policy and practice that alter political coalitions and the strength, clarity, and legitimacy of their demands. The treaties, to be sure, are not a silver bullet through the heart of the world’s dictatorial regimes. They do, however, offer some leverage where repression itself can be contested.⁸ Oona Hathaway calls the treaties and declarations a powerful expressive tool. In liberal democracies at least, interest groups may mobilize to pressure their government to comply.⁹ And another study found strong empirical support for the limited effect of the international law of human rights on state practice, even after controlling for a number of factors—like democracy and wealth—which admittedly make a difference.¹⁰

Thus the powerless rhetoric of all the treaties, declarations, and conventions is not always empty verbiage. The rhetoric, in any event, is mightily pervasive; and more so all the time. Governments can try to hide behind a screen of treaties, or manipulate these agreements cynically for their own ends, or simply ignore them; but often the population, as Simmons points out, may take the treaties and declarations more seriously. They inspire people; and they strengthen the hand of NGO’s and other interest groups that battle for human rights. This is, in any event, a plausible hypothesis;¹¹ and, as we will see later on, a certain amount of evidence backs it up.

But perhaps we are asking the wrong question; or asking it backwards. The impact of treaties is almost impossible to measure—too many other things are going on, in every country. Yes, the treaties and conventions cannot be enforced from outside; yes, international law is a hollow reed (although there are signs of change). But the more basic question is this: Where did the treaties and declarations come from? Why do we have them? They have sprouted like mushrooms, in the late 20th century. Why is this? And why are they so seductive—not simply to governments, but to ordinary people? What are the social forces, the norms, the ideas, the cultural habits, that animate the human rights movement? What gives the public, and its organizations, so many hopes, dreams, and passions? The texts are, in a way, like dry, withered leaves, without life of their own. And how many people have actually read them? They seem to have vast power; but that might be an illusion. Something else has the power; and that something else is what has created the movement, and has also given rise to its texts.

Whichever way the arrow of causality points, the human rights idea has shown a tremendous capacity for growth—as a social ideal, and as part of the normative baggage of ordinary people in our times. The result has been a tendency—and more than a tendency—for human rights ideals to spill over into positive law and positive institutions. Constitutions have been growing like summer weeds. Constitutional courts sit and decide cases that would have been unthinkable in past generations. How and why have the words become so potent? How is it that what seems ghostly, unreal, a figment of the imagination, turns into something concrete and influential; what is it that gives this airy nothing, to borrow Shakespeare’s phrase, not only a local habitation and a name, but a form, a body, a living, breathing self?

The human rights literature is enormous. More and more books pour out of the printing presses every year. The big bookstores have whole walls of shelves on the subject. There are thousands of journal articles—many of them in journals that are entirely devoted to human rights. There are programs, institutes, research centers. In the light of all this, is there anything new or different to be said? I rather timidly think so. The literature is a vast ocean in size; but as I said earlier, it is skewed in particular directions. Much of it is heavily theoretical and philosophical. The experts who write the books tend to be professors of philosophy or political theory or specialists in ethics. Legal scholars have also spilled oceans of ink on the subject. These two fields—philosophy (broadly conceived) and law—have dominated the literature.¹² The lawyers, like the philosophers, focus on texts and procedures; and tend to be highly normative. They have strong ideas about what should be the social and legal reality. Both literatures are useful. Lawyers, in particular, have to do the dirty work of drafting the documents, declarations, and treaties. They bring and manage the cases on human rights, whenever there are cases to be brought. But they have also played, as Michael Freeman argues, a dominant (and distorting) role in the academic study of human rights.¹³

What we have, as a result, is a lot of theory, a lot of philosophy, a lot of policy proposals, a lot of exhortation. A great deal of it is noble, fine, uplifting. Good people with good motives write most of the books. They are fighting a good, and necessary, fight. After all, the world is full of enemies of human rights. These enemies run much of the world. They have prisons and death squads and armies. Hitler wrote Mein Kampf; but most of our contemporary dictators do not bother to write books.¹⁴ That is probably just as well. The books are written, on the whole, by high-minded men and women; humane men and women. Yet something seems to be missing. The work, on the whole, lacks the tough fiber of sociological reality. The research on how rights operate, and why they take certain forms, is relatively thin. There are some honorable exceptions—we mentioned, for example, studies which try to test the impact of human rights documents. There are also essays on the historical roots of the human rights movement; indeed, a fairly substantial literature on this subject.¹⁵ There is also some literature on the sociology of rights—although surprisingly little. But on the whole, the normative stuff dwarfs the slim shelf of books which try not to exhort or condemn, but to explain.¹⁶

I am willing to be just as normative as the next person; and I confess that I have strong feelings about human rights. But this book is not about what is right and wrong with the human rights movement. Rather, it is about the concepts and practices of fundamental rights as social facts. That is to say, fundamental rights as notions and ideals in peoples’ minds; and what people and institutions make of them. Or, to put it another way, I am concerned with what ordinary and not so ordinary people, in various places, think about the subject. I am also interested in the practice—the behavioral side of human rights. And also how courts and other institutions handle the subject; and how the language of the law and the lawyers, and the language of the ruling texts, reflect the norms that lie underneath the surface.

That conceptions of rights change over time is as obvious as anything can be. In Western countries, today, the law takes it absolutely for granted that men and women have equal rights; the equality of the sexes is also (to a degree) the ideal in social life as well. But this notion of gender equality was totally absent during most of human history. The American Declaration of Independence announced that all men were created equal. Not all men and all women, but all men; and this was hardly accidental. The same is basically true of the rights of man in its French revolutionary version. Not to mention the fact that, in the United States, all men really meant all white men.

There were, to be sure, rights that belonged both to men and women. A woman arrested in the United States or France, or in England, and charged with a crime, had as much access to a fair trial, probably, as a man had. She had religious freedom; and the right to express herself in print, and to give speeches (society frowned on such behavior, to be sure). But women could not vote, or hold office, and hardly anybody thought they should or could. In the common law system, a woman lost most of her power to control her property, the instant she got married. The power passed to her husband. African-Americans had even fewer rights than women. Most of them, up to the time of the Civil War, were slaves. Free blacks, south and north, were nowhere the legal equal of whites; and socially even less so. Yet De Tocqueville considered the United States a radical experiment in democracy. And it was, compared to most countries—countries without democratic elections, or who punished or persecuted religious minorities; or where only the nobility was truly free.

Hence even in the United States, where the law in, say, 1800 clearly recognized some basic human freedoms—freedom of speech and religion, for example—human rights meant something quite different than it does today. Even the most advanced thinkers of the Enlightenment, or of the age of the American Revolution, would be quite startled by today’s menu of human rights. In scope and reach these rights are incomparably broader than anything in the past. Thomas Jefferson certainly believed strongly and firmly in freedom of speech. But he would surely be amazed, and horrified, at the notion that the right of freedom of speech covered emotional outbursts, or dirty words, or, for that matter, books about various positions of sexual intercourse. Basically, the founding fathers were thinking of political speech; and debates about religion (short of blasphemy). Not only have the classic rights expanded; but there are also distinctively modern rights, which Jefferson never dreamt of—privacy, for example. Many of the new constitutions also list a battery of so-called social rights—rights to education, housing, health care, and so on. There is also more and more recognition of language rights, of cultural rights in general, and the rights of indigenous peoples.

All this tremendous variation, over time and space, makes it possible to argue that the whole idea of fundamental rights lacks logical or philosophical sense.¹⁷ But the people who walk the streets of New York or Tokyo or Stockholm are not philosophers or logicians; and ideas about human rights are firmly rooted in their mind-sets. People tend to believe quite strongly that there are fundamental rights, basic rights—sacred rights, untouchable and inalienable rights.

To be sure, popular opinion on the subject is no doubt incoherent, variable, and at times illogical. Yet a single basic premise, I think, does underlie most of the basic items on the menu of modern rights. (The word modern here is quite crucial). This is the dogma that all human beings are or ought to be absolutely equal in public policy and law: men and women, black and white, young and old, Christians and non-Christians, and so on. Every individual should count the same as every other individual. Jack Donnelly has put it succinctly. Human rights are the rights that one has simply as a human being. As such human rights are equal rights, because we are all equally human beings. And these rights are inalienable, because, whatever we do, and whatever is done to us, we cannot become other than human beings.¹⁸ In general, a right to equality is now regarded as an essential feature of both national law and international human rights instruments.¹⁹

In life, of course, equality of this sort is miles away from reality. But it is the bedrock on which, I believe, people build their mental structure of human rights. In the real