The speed with which we have given up some of our most basic rights and freedoms in the face of an incurable epidemic would be noteworthy, if it were not also such a cliché. Everyone has seen films in which the rights-bearing body of an individual becomes a disease-vector, and ultimately little more than toxic waste to be placed under rigorous cordon sanitaire, if not summarily obliterated. The mediocre Tom Clancy techno-thriller Executive Orders (1996) had the USA fight off a weaponised Ebola attack, with only conniving political opportunists moaning about rights, as the pragmatic authorities intoned the legal pabulum “the Constitution is not a suicide-pact!”[i]
Less entertainingly, it is also very nearly a truism of real-life commentary that the inequality with which “rights” are distributed in good times is multiplied in bad ones. While the virus itself may not discriminate, as we have been repeatedly advised, it seems to be having a disproportionate impact in the ethnic-minority communities of major Western nations, while the economic effects of lockdown are, of course, more violently traumatic the closer one is to the margins of society.
Human rights are supposedly universal and unconditional. But the protections they claim to offer have always proven flimsy and threadbare in practice. One reason for this is that the evolution of rights-language in the last three centuries is in fact frequently about two other things: firstly, an idea of grounded, foundational rectitude which has only partially shifted from theological to “scientific” underpinnings, and secondly, the doctrine of state sovereignty, historically entangled with the assertion of national identity. In the way they are used in practice in the world, “human rights” are frequently a cover for assertions and practices that entirely contradict their supposed premise of individual autonomy and security.
Human rights began their modern life as “natural rights”, an offshoot of centuries of European intellectual debate about the existence and contours of “natural law”. Understood, implicitly and explicitly, as a function of the fact of an ordered and purposive divine creation, and of the sovereign state as a component of such an order, rights retained their theological tinge very clearly into the Age of Enlightenment. The US Declaration of Independence invoked the “laws of nature and of nature’s God” as its foundation, spoke of the trinity of life, liberty and the pursuit of happiness as rights “endowed by their Creator” upon men, and appealed to “the Supreme Judge of the world” for validation. Thirteen years later, the French declared the “natural and imprescriptible rights of man” at the heart of a document they decreed to be proclaimed “in the presence and under the auspices of the Supreme Being”.
The French declaration of 1789 also placed the imagined rights-bearing individual in a complex and ultimately subordinated relationship to the other rising force of the era, in stating that “The principle of all sovereignty resides essentially in the nation”, and that “Law is the expression of the general will.” Across the declaration’s seventeen articles, although “every citizen” has the “right” to participate in lawmaking, the law itself – the encoded power of the nation-state – stands above anyone’s “liberty, property, security, and resistance to oppression” (the four enumerated natural rights).[ii]
The modern sovereign nation-state that increasingly took shape in the 1800s was built on claims of inherent superiority that displaced divinity with reason, but were no less, and sometimes more, discriminatory as a result. In France, even before the Revolution had transitioned into Napoleon’s dictatorship, the savants of the new National Institute had taken up the reins of scientific leadership dropped by the abolished royal academies of the old order. Alongside scholars of the sciences and literature, equal prominence was given to practitioners of the “moral and political sciences”.
One of the supposedly great truths that these scholars enunciated, for a country now explicitly referring to itself as “the Great Nation”, was that such a nation, while naturally superior to others, also contained many – multitudes indeed – who did not measure up, individually, to that greatness. France’s leading intellectuals quite deliberately defined the egalitarian republicanism to which they were sworn as something that required, in practice, a rigorous hierarchical division between the fully-enlightened and able elite, and the majority, still seeking to pull themselves out of the mire of the past, who could only expect to be led, gently but firmly, for the foreseeable future.
The legacy of the early nineteenth-century approach to the superiority of rational knowledge has been the creation of waves of ideological thinking, predicated on the foundational entitlement of those who know better to dominate and manipulate the common herd. Over the past two centuries, ideologies from to fascism to Marxism-Leninism, via the imperial liberalism that dominated Anglo-American and French public life, have used claims about their superior understanding of past, present, and future to claim the right to forcibly remake humanity for the collective good, using the overwhelming power of the state.
When the founders of the United Nations produced a Universal Declaration of Human Rights in 1948, they proposed to endow all people with a remarkably wide-ranging set of entitlements. The first clause of Article 25 states:
Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
A noble aim, perhaps, but also a staggering act of hypocrisy on the part of France and the UK, ruling over swathes of subjugated and impoverished empire, the USSR, winding up to launch the antisemitic persecution of the so-called “Doctors’ Plot”, and the USA, mired in racial segregation and discrimination. The ultimate paradox of the notion of individual “rights” is that, if they are violated by a higher power, only a yet-higher and more righteous power can set matters straight. It is easy to believe such a power can exist, much harder to identify it in practice.
The past six decades have seen repeated and ever-more elaborate forms of international covenants binding states to increasing portfolios of rights that purport to demand respect. Yet, where are we? Half of the world’s ten largest countries – more than 3 billion people in those five states alone – are ruled by demagogues and autocrats.[iii] The UN’s “Human Rights Council”, founded in 2006, is a rotating talking-shop of forty-seven states which to date has never failed to include some of the world’s most notorious human-rights abusers in its membership.
Sitting in our homes, in a world which has, with the best intentions, summarily crushed many of our most fundamental everyday freedoms, we might legitimately wonder whether all discussion of “human rights” remains in the shadow of its pre-modern origins. We have, mostly, displaced the notion of divinely-ordained absolute sovereignty with more modern ideas, but we may well have given the sovereign nation and the state that embodies it almost as much power, while gaining in return little real regard for the individuals whose rights it supposedly protects.
David Andress is Professor of Modern History at the University of Portsmouth, and author of many works on the era of the French Revolution. He edited the Oxford Handbook of the French Revolution (2015), and has recently published Cultural Dementia (2018) and The French Revolution: a peasants’ revolt (2019).
Cover image: The universal declaration of human rights, 10 December 1948.
[ii] According to the canonical text, the law may constrain liberty, in a whole number of ways, if behaviour troubles “the public order established by law”; it may overrule people’s own understanding of both security and resistance to oppression, for “any citizen summoned or arrested in virtue of the law shall submit without delay, as resistance constitutes an offence.” It may even, in the text’s final article, take away property, despite this being reiterated as “an inviolable and sacred right”, as long as due forms are followed and compensation paid. And what those are, of course, will be determined by the law.
[iii] In 2005 the UN invented the doctrine of a collective “Responsibility to Protect” human rights in other states. In 2015 the Saudi government invoked its “responsibility” to “protect the people of Yemen and its legitimate government” in launching the savage and near-genocidal campaign that continues to this day.