Secretary of State Mike Pompeo’s July 8 announcement of who would serve on the new State Department’s Commission on Unalienable Rights has drawn a wide critical reaction. Some of this has simply been the usual rejection of any idea that comes out of the current administration. But others, like the head of Human Rights Watch, have raised substantive criticism.
For example, Fr. Drew Christianson rightly notes that it is hard to discuss the commission since it has not actually done anything yet, and its terms of reference and goals are currently quite vague. We know it is not supposed to offer policy advice, but instead provide a basic reflection on rights—building on Thomas Jefferson’s reference to “unalienable rights” in the Declaration of Independence. But what this might mean is open-ended.
Christiansen is also concerned that the use of the phrase “unalienable,” from Jefferson’s actual language more than two centuries back, might signal a rejection of, or at least a critical distance from, newer formulations of rights, particularly in the international sphere.
He rightly notes that there have been many advances in our notion of rights over the centuries. But he seems to assume too quickly that all recent expansions of rights are themselves necessarily good. “Advances” can be bad as well as good. In fact, the modern promiscuous proliferation of rights claims brings with it the danger of undercutting the primacy of rights. If almost everything becomes a right, then ultimately nothing is really a right but merely a demanded preference.
In this case, an examination of the nature, grounds, and limits of rights should be welcomed.
Proliferation of Rights
One problem with some recent formulations of rights is that anything regarded as politically good or just tends to be formulated per se as a right. This is a strong American predilection, but it is also present elsewhere.
The expressions “rights” and “human rights” now address issues as diverse as democracy, elections, courts, constitutions, tax policy, housing policy, war, torture, the criminal justice system, race, abortion, international trade, political freedoms, medical practice, the environment, immigration, homosexuality, marriage, and other sexual relations. Indeed, one notable feature of current political battles is that opponents must vie with one another to appropriate the label of rights for their own position. As L.W. Sumner pointed out decades ago, “if one interest group has built its case on an alleged right none of its competitors can afford not to follow suit… they will tend to proliferate and to escalate.”
A group that manages to get its issue defined as a human right is often well on its way to political victory. In public debate, a claimed good cannot compete with a claimed right. The late Ronald Dworkin captured this well in describing rights as analogous to “trumps” in the card game bridge, as fundamental claims that always and necessarily override other political and legal considerations such as propriety, efficiency, and communal solidarity.[i]
As a result, there is little clarity about what we mean or should mean when we talk about rights. People from all parts of the political spectrum have a love-hate relationship with rights, depending on exactly what type of right is on offer. We therefore need clarity about what we mean by rights, especially fundamental, unalienable, human rights. This, I surmise, is the major purpose of the commission.
Multiple Concerns about Rights
Although rights are good, they are not the only good things in the world, so they might squeeze out other good things. Rights emphasize what a person should have, not what they should do. If rights become the defining feature of our politics, then questions of what it is good for someone to do will tend to be subsumed under questions of what someone has a right to do, regardless of the consequences for others. The question of what others owe us often takes priority over the question of what we might owe another. For these reasons, Søren Kierkegaard regarded a concern for rights, even rights for all, as evocative of self-love. Simone Weil worried that rights had “a commercial flavor, essentially evocative of legal claims and arguments. Rights are always asserted in a tone of contention.”[ii]
Mary Ann Glendon, the chair of the new commission, argues that not so much rights themselves but a near-exclusive fixation on them has hobbled American politics and poisoned its social relations. She describes current American rights talk as conspicuous in “its starkness and simplicity, its prodigality in bestowing the rights label, its legalistic character, its exaggerated absoluteness, its hyper-individualism, its insularity, and its silence with respect to personal, civic, and collective responsibilities.” [iii] It produces a “near-aphasia concerning responsibilities…without assuming…corresponding personal and civic obligations.” It gives “excessive homage to individual independence and self-sufficiency,” and concentrates on the “individual and the state at the expense of the intermediate groups of civil society.”[iv] This, in turn, makes it “extremely difficult for us to develop an adequate conceptual apparatus for taking into account the sorts of groups within which human character, competence, and capacity for citizenship are formed… For individual freedom and the general welfare alike depend on the condition of the fine texture of civil society—on a fragile ecology for which we have no name.”[v] Michael Ignatieff has also cautioned that human rights can become idolatry.[vi]
Different Types of Rights
How then in this welter of claims do we decide which of these are actually universal human rights? One of the major examples of this debate occurs in the question of whether so-called “social and economic rights,” such as a right to welfare or housing or education, should be regarded as fundamental human rights. This debate has become intertwined with arguments about whether rights of individual freedom are truly universal or only reflect Western individualist preferences.
Critics of the notions of economic and social rights stress that the problem with treating economic provisions as if they were rights is that there are often reasons why a particular government would not be able to fulfill such rights at a given historical juncture. Even a well-meaning government may not be able to guarantee income, housing, health care, or even food. Some African countries simply do not have the resources to do so: Are they then violating human rights? Consequently, if we were to treat economic guarantees as rights, then we would be forced to accept that human rights cannot and need not be met immediately. They would be things to be aimed for rather than guaranteed. The result is that we will end up diluting rights to goals and denying the requirement of immediate realization.
Several countries have attempted to use the non-immediate character of “economic rights” to reduce rights tout coeur simply as long-term goals which governments should pursue, rather than stringent limits to which they should immediately adhere. China says it stresses “economic rights” as its long-term aspirations, then slides into treating the eradication of torture and press freedom as long-term goals, too, rather than as immediate demands. The ending of the internment of a million Muslim Uighurs is then put off into the long-term future on the grounds that rights are simply goals to which we aspire.
To this may be replied that there need not be any real competition between political freedom and economic well-being, as though countries must put off freedom until they are wealthy. As Nobel Prize winner Amartya Sen has shown, countries with a free press no longer have famines, since the publicity given to people’s suffering ignites action for relief, and there is no shortage of relief supplies if agencies are allowed to deliver them.[vii] It is only in authoritarian settings where the government has the power to repress reports of what is happening that people can be hidden, ignored, and forgotten as they starve. Modern famines are the result of political action by corrupt governments such as Sudan or North Korea. Consequently, there are no grounds for rejecting political rights, such as freedom of the press, in pursuit of supposed economic security. The opposite is true: where there are political rights, then economic rights are also likely to be met.
Defenders of economic rights counter that some political rights, such as regular elections or the provision of legal counsel, can also suffer from the same defect of lack of resources. For example, Rwanda simply does not have enough lawyers to defend those accused in its genocide. Even a well-meaning government may lack the resources to actually make such guarantees real. This is much more so in the case of defending citizens from external attack, which may require extremely expensive armed forces, forces that many states simply cannot afford. Hence, if universal human rights are only those that all governments can actually meet at all times, then there may be several political rights that cannot be universal either.
The responses to this raft of issues are many and complex. As the commission considers its mandate, I would recommend that it stress that:
- The foundation, or foundations, of human rights, draws on those of universal application (as was a major theme in the Universal Declaration of Human Rights—especially in the formative [Catholic] contributions of Charles Malik and Jacques Maritain; here the post-World War II series of books by F.S.C. Northrop on understanding world cultures are still valuable).
- Any real universal human rights must be universally, internationally, immediately—not just locally, domestically—achievable.
- Human rights, in order to be universal, must be capable of being immediately defended in each country so that none has any current excuse.
- Social and economic rights, if seen as human rights, should be seen as human rights goals, so have a difference from political limits and protections that require and can have immediate attention. This is reflected in the careful structure of the United Nations Declaration of Human Rights.
- “Economic” and “social” rights might still be described as rights, but the distinction between them as goals rather than political and immediate limits should be recognized and maintained.
Fortunately, one of the leading authorities in America on these and kindred issues is probably Harvard’s Mary Ann Glendon, who is chair of the new commission. This gives cause for hope that its results will be salutary.
Paul Marshall is Wilson Professor of Religious Freedom at Baylor University, a senior fellow at the Hudson Institute and the Religious Freedom Institute, and a contributing editor of Providence.
Photo Credit: US Secretary of State Michael R. Pompeo announces the formation of Commission on Unalienable Rights to the press at the US Department of State in Washington, DC, on July 8, 2019. State Department photo by Michael Gross.
[i]. While a view of rights as “trumps” was articulated most clearly by Ronald Dworkin, it points more widely to a feature common in modern jurisprudence. See the survey provided in H. Gillman, “The Evolution of the Rights Trump in the American Constitutional Tradition,” paper presented at the Annual Meeting of the American Political Science Association, Washington, DC, September 1991.
[ii] See Meirlys Owens, “The Notion of Human Rights: A Reconsideration,” 240-246 of American Philosophical Quarterly, vol. 6, (1969), 244.
[iii] Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Basic Books, 1991).
[iv]. Glendon, op. cit., x-xi, 14.
[v]. Op cit., 109-110. Similar themes occur in attempts to import the notion of rights into ecological discussions, see Paul Marshall, “Do Animals Have Rights?” in Studies in Christian Ethics, vol. 6.2, (Summer, 1993), 31-49.
[vi] Michael Ignatieff, et al., Human Rights as Politics & Idolatry (Princeton: Princeton University Press, 2003).
[vii] Amartya Sen, Development as Freedom (New York: Knopf, 1999).