EQUALITY AND HUMAN RIGHTS

ROBERT H. WALKER

There is no universal formula for protecting human rights,
but there are plenty of lessons from history

At the end of the 1980s, pressures that had been building for decades erupted in a series of dramatic political revolutions overthrowing authoritarian governments from East Germany to the Kremlin. Few foresaw any of these outbreaks; no one predicted them all. Many in Western Europe and America were left to wonder at the meager returns from the mountainous investment in “intelligence” dealing with this very part of the world.

Shockingly unanticipated, this broad failure foreshadowed in many ways the attacks on the United States on September 11, 2001. There was at least the same lack of foresight and security, and the spectacular inability to think in terms outside one’s own culture. Together, these events demand a closer look at our own revolution 200 years ago, and prompt us to rethink the idea of equality, the evolution of liberties to rights, and the changing context for international human rights. For Americans in particular, it is important to note the danger of ignoring particulars in favor of glib panaceas, the futility of attempting to disguise inequality behind rigid hierarchies, and the unavoidable difficulty of accepting change as a constant social condition.

As much as we might like to turn our backs, we are faced with unsettled and often unjust and dangerous conditions in our shrinking world: from Korea to Africa, from Lebanon to Idaho. Altered preconceptions should help us deal with at least some of these conditions, better than we have done in the past with Ireland, Chechnya, and Kosovo.

THE LITERATURE OF EQUAL RIGHTS

Americans tend to view equality as their nation’s singular contribution to the world of political values. What is least appreciated about the idea of equality at the time of the founding of the United States is the incredible influence of Sir Isaac Newton and of mathematics as a dominant discipline. Statements concerning equality were likely to be, as is all of mathematics, abstractions.

Thus, “all men are created equal” is not hypocritical in the face of gross inequities; it is simply irrelevant.

This is, of course, not the whole story. The Founders were well aware that the idea of equality had a long history, beginning with the articulate Cicero, who borrowed heavily from the Stoics and came up with the concept of “right [moral] reason.” In De Republica he set forth his famous definition: “True law is right reason which conforms with nature.” The cornerstone of classical belief is the existence of a law of nature. One may put forth laws of social behavior so long as they do not contradict natural law. Since Newton was busily redefining nature, one can understand his pervasive influence.

As the discussion of equality resumed during the Renaissance, ideas other than Newton’s became prominent: Lord Halifax, whose experience led him to omit religion entirely from his social structures and to stress education in its place; George Berkeley, who both challenged Newton and used him as exemplar; Baron de Montesquieu, one of the first to envisage a natural science of government; Francis Bacon, a particular favorite of Thomas Jefferson, who battled the historic determination of the church to separate the material from the spiritual; and René Descartes, a pioneer mathematician often cited as the originator of modern philosophy in his insistence on the primacy of reason.

Above these eminent figures towered three giants, in terms of influence: Thomas Hobbes; Adam Smith; and John Locke. Hobbes, a mathematician interested in inertia, appealed to conservatives in his insistence that men were not equal but, rather, aggressive and dangerous. The social contract, then, was more a protection from nature than a derivation therefrom. Smith’s famous Wealth of Nations appeared as the American Revolution began, but his Theory of Moral Sentiments, published in 1759, was already a colonial favorite.

It is more true than original to find the American Revolution almost completely justified in the works of John Locke, who found freedom and equality in nature could quickly be destroyed by arbitrary power. He placed paramount stress on a social contract based on consent of the governed. Locke, when encountering the laws of Newton, recognized as his duty the elaboration of their philosophical consequences.

John Adams struck the strongest note among his colleagues. He advised them to “Study government as you do astronomy by facts, observations, and experiments.” Newton had turned the chaos of nature into an orderly universe. Why could not man arrange his political institutions into similar, orderly patterns?

In addition to the political philosophy they took from Cicero to Adam Smith, the Founding Fathers responded to a second force, barely hidden beneath the stylish attachment to order, symmetry, and balance. It was the evidence of a dynamic nature defined by motion, inertia, momentum, orbits, and attractions. Society, like science, would have to deal with change and development.

The uprisings in Eastern Europe, like the American Revolution, protested the violation of social contracts and reflected long histories of the struggle for self-determination. Revolutionary ideas may be based on abstract truths, but also arise from particular circumstances as unique and complex as the Jeffersonian idea of equality.

NEGATIVE (PASSIVE) RIGHTS VS. POSITIVE (ACTIVE) RIGHTS

At least some of the confusion between rights and liberties might have been avoided if the first ten amendments to the US Constitution had been called the “Bill of Liberties.” That is what they are. Liberties deal with the prerogatives of individuals or groups that have been denied or threatened by a central power. It is the national government which is the actual or potential enemy. Redress is in the courts.

Civil rights, conversely, grow out of the 14th Amendment to the Constitution and rely on the federal government to protect groups and individuals from adverse discrimination. Safeguarding and expanding civil rights typically depends on legislative enactments enforced by executive agencies, acting as protector.

For most of human history, the main concern has been protection from abuse by monarchs, parliaments, prelates, or other central authorities. An Anti-federalist writing under the name of Agrippa uncannily predicted that the protection of civil liberties would lead inevitably to civil rights. But for everyone else in the founding generation, the overwhelming concern was with the protection of the individual from king, parliament, and their successors.

Human rights is a relatively vague term used in an international setting. It usually refers to the violation of rights or liberties in a country other than one’s own. The increasing use of this term signals a transition from the time when rights violations were consistently conceded to be the responsibility of the sovereign nation.

We have now seen a steady, if uneven, shift toward the scrutiny of multinational organizations, both official and non-governmental. These groups count not only on public opinion, but also on regional court actions, sanctions, trade restrictions, and armed intervention. There are now practical reasons for describing rights in terms that are current, forceful, and enforceable.

The 1990 Concluding Document (CCD) of the Conference on Security and Cooperation in Europe (CSCE) exemplifies a current multi-national, non-governmental rights manifesto. The CCD is also an effort to move from a relatively simple listing of passive rights to an explicit concern for the dynamics of active rights. Admittedly, it is no small task to record the imprimatur of a moment while anticipating a future of unpredictable particulars. But as human rights are part of a continuum, written instruments must not only enumerate goals, they also must protect those institutions and conditions that promote enlightened change. The best thing about the CCD is its attempt to identify and encourage those institutions and conditions necessary for active, peaceful, social change. Perhaps it does not go far enough, but it takes some very important steps in the right direction.

The CSCE was attended by representatives of 40 nations, mostly European. Its Concluding Document, signed on June 29, 1990, exceeds its predecessors in the comprehensive listing of rights. The CSCE convened amidst those heady times when arbitrary power was crumbling left and right, from the Berlin Wall to the tomb of Lenin. It would have been hard not to rejoice in newfound freedoms. Yet there were voices to remind the world that democracy is no guarantee of social justice. Once-open societies can become repressive. Former victims can become vengeful when placed in power.

Like many of its predecessors, the CCD affirms such basic passive rights as freedom of expression, and the right to assemble. This section (5.15 through 5.19) reads very much like the American Bill of Rights. There are few lacunae, but some are important: e.g., the right to assemble is meaningless without unrestricted freedom of movement; and, although the CCD commends the opening of national borders, it fails to stipulate freedom of domestic travel, a prerogative that is often among the first to suffer from oppressors.

A bit more focused, Article 10.3 deserves special praise for its insistence on “the right to form, join, and participate actively in non-governmental organizations which seek to promote and protect human rights and fundamental freedoms...” In the past, perhaps, students of social change have been slow to recognize the pivotal role of voluntarism. Where, to cite an obvious case, would the cause of emancipation have gone without the American Anti-Slavery Society?

The CCD properly calls for universal suffrage, secret ballots, and political parties independent of government control. While fairness is not guaranteed by popular sovereignty, it is impossible to achieve without it. And the transition to active rights means a heightened role for legislatures. It is therefore comforting to find a provision calling for at least one chamber of the national legislature to be chosen by “freely contested popular vote.”

The CCD also offers unprecedented recognition of the plight of minorities victimized by political repression. The intent is clear but the presentation is marred by the inaccurate use of the term “pluralism,” which actually means to hold more than one idea (or office) at the same time. Here, rather, it implies variety or diversity. For a nation to be populated by diverse groups is more an accident of history than a necessary condition for democracy. One needs to be concerned not to create diversity but to be sure that, within a diverse population, no group suffers from adverse discrimination. One day, declarations such as this will recognize minorities denied social justice for a variety of reasons, including entrapment in poverty. For the present, however, Article 36 will have to do, calling as it does for “mutual respect, understanding, cooperation and solidarity among all persons ...without distinction as to ethnic or national origin or religion.” One hopes that, first, they will be fed.

The place that best shows the CCD as transcending negative rights is Article 26, which calls upon nations to promote cooperation of all kinds: decentralized authority; a merit-based public service; independent media; and enhanced cultural life. This is the least stately passage in the entire document; troubling neither with parallelism nor orotund phrasing, it breathes life and enthusiasm. Perhaps there should be more explicit encouragement of the creative imagination on behalf of social justice. Picture reform in the United States without Uncle Tom’s Cabin, The Jungle, The Grapes of Wrath, and The Crucible; the cartoons of Thomas Nast, Art Young, and Herblock; and the songs of Julia Ward Howe and Bob Dylan. However, this extended passage, in its miscellaneous way, is wonderful. It implies that no static pronouncement can ever serve for long, and that the best hope for the member nations is to promote the energetic pursuit of altruistic goals.

THE RULE OF LAW AND THE GREAT CHAIN OF BEING

Sections 5.15 through 5.19 of the CCD contain a traditional enumeration of passive rights and imply that the negative rights of individuals will be thoroughly protected. However dubious this assumption may be, the prospect of expanding affirmative (civil) rights under “the rule of law” is even more problematical. Any reasonable person would choose just laws over chaos, but is a rule of law (the law of a dictator, for example) superior to popular sovereignty?

For philosophers of jurisprudence, this subject is defined and sharpened by the famous Hart-Fuller debate as published in the February 1958 Harvard Law Review. Here, Professor Fuller translates, with approval, an article in German by Judge Radbruch, who warns against violating the rule of law on moral grounds and thus discredits at one stroke such memorable crusaders as Henry David Thoreau, Ainsworth Rand Spofford, Mahatma Ghandi, Martin Luther King, Jr., and others who have argued man’s duty to obey a “higher law.”

In the preamble to the CCD, the rule of law is twice cited as a basis for the new order. Section I, Article 2 identifies the rule of law with the basic principles of justice. Throughout this section one encounters such phrases as “in a manner consistent with law,” and “in accordance with a system established by law.” Article 5.10 provides for redress against administrative decisions, although nowhere in the many articles dealing with courts is there allowance for the right of appeal, or the election and recall of judges. Climactically, articles 5.12 and 5.13 call for the “independence of judges . . . and of legal practitioners.”

The field of international human rights has been dominated by professors of law, diplomacy, and political science. It is therefore not surprising that one meets the assumption that if courts and lawyers are protected, all will be well. Students of social change know that the contrary may be more nearly true: that lawyers and judges have often stood in the way of humane progress.

In the literature of equality lies a concept that is perhaps parallel to the rule of law in its stress on hierarchy and rigidity. Grounded in the writings of the Ancients was a metaphor depicting instantaneous creation with graded links (from the angels down to inanimate objects), but with equality within each stratum. The renowned historian of ideas, Arthur O. Lovejoy, traces this idea through the ages and finds it arriving intact at the 18th century defined by plenitude, continuity, and gradation. Among its advocates were Joseph Addison, John Locke, and Alexander Pope, who wrote in his Essay on Man:

Vast chain of being! which from God began,
Nature aethereal, human, angel, man . . .
From Nature’s chain whatever link you strike,
Tenth, or ten thousandth, breaks the chain alike.

The Great Chain preoccupied many popular thinkers and writers. It gave them the opportunity to stress hierarchy (the links) or equality (within each link). In the end, neither approach prevailed. Something much more startling happened: the Great Chain was temporalized. It lost its intrinsic connection with instantaneous creation and opened itself to change. This event became a prime indicator that the Age of Reason was in fact moving from a static to a dynamic world view.

The law is the pillar of society. It must not be pressured by public opinion or challenged on moral grounds. So argue Professor Fuller and Judge Radbruch. From this point of view the law has rigidity similar to that of the Great Chain before it was temporalized. Our Founding Fathers dispensed with the Great Chain. May we not follow the arguments of our leading jurists toward an organic, evolving interpretation of the law that opposes the rigid hierarchy of the “rule of law?”

PROCESS AND PARTICULARS

The Age of Reason, which gave birth to the United States, has been depicted frequently as dominated by ratiocinative powers and deductive logic and expressed in the measured minuet, the meticulously structured essay, and the rhymed couplet. Pope’s Essay on Man was the archetype paralleled by the Federalist Papers. The governing metaphor was a well-made clock moving through its regulated cycles until, after a fixed period, it returned to its original position. The literature of equality does not obliterate this picture, but shows that there were more profound truths.

Thomas Jefferson, often taken as the personification of the Enlightenment in America, showed his adaptability to changing conditions in his startling decision to purchase the Louisiana Territory. Furthermore, two of Jefferson’s most famous projections clearly assume an evolving society. The social contract, he said, binds only the living. Each generation must make its own. As to who should govern, Jefferson described an “aristocracy of the intellect,” determined by demonstrated achievement in an open society.

Because of the universality of change, we need to worry more about protecting the institutions that promote expanded rights than about enumerating the rights themselves. Advocates of dissenting ideas must be allowed to meet, organize, debate, and campaign. If the measure attracts enough support it should be legislated into law and enforced by executive agencies. It may need the test of law, but if so, the test must come AFTER demonstration of popular support.

If this highly selective brush with the past proves anything, it shows that we can help one another by studying and respecting differences, accepting rather than resisting change, and defending those institutions and procedures that make peaceful change possible.

Additional Resources:

Dos Passos, John. The Head and Heart of Thomas Jefferson. New York: Doubleday, 1954.
Echikson, William. Lighting the Night: Revolution in Eastern Europe. New York: Morrow, 1990 (an excellent analysis of the European revolutions of the late 1980s).
Spragens, Thomas A. Reason and Democracy. Durham: Duke University Press, 1990.
Walker, Robert H. Reform in America. Lexington: University Press of Kentucky, 1985.
World Affairs. Summer 1990 (vol.153, number 1), for a discussion of the CCD.

Robert H. Walker (CC ’67) edited a series of over 100 volumes in American studies, and initiated the educational and public programs of the Humanities Endowment. He developed a unique American studies doctoral program involving the Smithsonian Institution and the Library of Congress. For the past 10 years he has headed a foundation on comparative human rights.

Return to COSMOS 2001 Table of Contents
Return to COSMOS Journals
Return to COSMOS Home Page