The Perplexing Discourse of Human Rights

A Classical Legal Critique of a “Babelic Confusion”

The New Digest is pleased to feature this guest essay from Professor Fernando Simón-Yarza. Professor Yarza is a Professor (Catedrático) of Constitutional Law at the University of Navarra. He obtained his Law Degree and PhD from the same University. He has been a Visiting Researcher at the Universities of Münster, Boston, Princeton and Oxford. He has translated into Spanish several books by the German philosopher Robert Spaemann. He is a member of the Association of Constitutionalists of Spain, the James Madison Society (Princeton University), and the International Society of Public Law.

Last year, the Universal Declaration of Human Rights (UDHR) celebrated its 75th anniversary. Notwithstanding the usefulness it has so often proved to have, as a safeguard of basic goods, its modern interpretation lends itself to confusion and abuse, partly precisely because the term “right” seems to imply the clear delimitation of something that corresponds to a real person and in a given time and place. But this is not the case with the rights contained in the Declaration. 

After World War II, the conviction that there are objective values whose realization should be served by the legal order of society led, as is well known, to the adoption of documents like the UDHR. The main promoter of the project was Eleanor Roosevelt, and its most important drafter was the jurist René Cassin. Among the thinkers who helped promote the Declaration were Cambridge historian Edward Hallet Carr, University of Chicago philosopher Richard McKeon, and the famous Thomist philosopher Jacques Maritain, to name but a few. The agreement of people from very different traditions on a catalogue of rights seemed to stem, ultimately, from the basic nature of the human goods enunciated by that catalogue: life, liberty, security, privacy, family, and so on. Insofar as the human rights recognized are, as John Finnis, among others, would argue, “basic human goods,” universal agreement on the broad nature of their content is perhaps unsurprising. 

Rights “run amok” 

At the same time, however, there has been no shortage of great thinkers who have firmly argued that calling these basic human goods “rights” invites a dangerous confusion and a conceptual break from the classical juridical law tradition. Among these thinkers include the great French legal philosopher Michel Villey and Alasdair MacIntyre, one of the most important moral thinkers of the last half century. With different nuances, Pierre Manent has denounced the displacement of the classical doctrine of natural law by a contemporary doctrine of human rights that is highly individualistic. Among Spanish authors, one of the most powerful critics today is probably Alfredo Cruz. The list of challengers to contemporary rights discourse, of course, could be much longer. 

Whether or not one shares the vision of these authors, it seems difficult to deny that the language of human rights has run amok, to the point of being used today to defend all kinds of desires and claims: from abortion to suicide, through surrogacy, incest or sex change. This is what many of us who have been dealing with this discourse in some detail have been arguing for several years. The crucial question is whether we are simply faced with a mere conflict of interpretations. The question we must ask ourselves is whether the discourse of rights, praiseworthy in itself, has only been led astray by a faulty interpretation or a fallacious rereading. If so, it would be enough to redirect it to its correct understanding because, after all, the abuse of categories does not deprive their correct use of legitimacy: abusus non tollit usum. 

The spirit of intellectual inquiry, however, cannot forego an examination of the positions of the more thorough-going critics of the discourse of human rights. Without resorting to subterfuge, we must honestly and sincerely ask ourselves whether, given the nature of the objections, we are faced with a way of speaking about rights that is equivocal in itself, with a language that contains a semantic ambiguity or even some kind of trap or impropriety. We cannot forget that the criticism of the discourse of human rights—or of the “natural rights” of the liberal revolutions—is very old, and that it has been formulated by authors that we could not label as sceptics or moral relativists without blushing—starting with Edmund Burke in his Reflections on the Revolution in France, of 1790. 

More than rights, goods 

In this brief essay it is not possible for me to address in depth the conflicts that have arisen in academic discussions of rights. I would like to draw the reader's attention, however, to a manifest equivocality in this discourse, which will serve, I believe, to bring home the seriousness of the problem. As a first authority I will turn, paradoxically, to the greatest contemporary apologist for the language of rights. In his celebrated work, Taking Rights Seriously, Ronald Dworkin defined—and enthusiastically defended—rights as “trumps” in a card game, that is, as apodictic assertions capable of winning against any opposing argument, including appeals to public goods or morality. A citizen burns the national flag in public and is punished; a discussion begins as to whether or not it is legitimate to punish him, until into the discussion sneaks, emphatically, the exclamation, “I have the right to freedom of speech!” 

Far from being the simple abuse of a language that is in itself innocuous, I think that this way of resorting to rights is favoured by its very formulation. In order to keep such generic “rights” within reasonable limits, it becomes necessary to delimit their content by making it compatible with the requirements of social life. It seems obvious that the right to freedom of expression should not include a right to harass someone for no reason, nor a right to deceive someone who has the right to be told the truth. One does not have the right to express oneself in any way whatsoever, but the fact is that the parsimonious declarations of rights say absolutely nothing about what is, here and now, the measure of my legitimate freedom of expression. Now, if a right is formulated without any measure, to what extent can it qualify as a right? 

To proclaim a right without a clear measure of where the right begins or ends lends itself, in my opinion, to considerable confusion, since the concept of right indicates something genuinely attributed, something that, in justice, corresponds to someone really and concretely. Not so, however, with most assertions of human rights. As John Finnis has said, these “need to be subjected to a rational process of specification, assessment, and qualification, in a way that rather belies the peremptory or conclusory sound of ‘…have a right to…’.” To qualify as a “right” what is strictly speaking a good, a generic value or a starting aspiration whose contours remain to be defined, is not without problems, since the qualifier “right” suggests something clearly and measurably assigned and owed as a matter of justice. 

The classical legal view is that the human goods listed in the catalogues of rights (life, expression, privacy, etc.) like the UDHR can be no more than mere premises for deliberation on what is just, but they do not contain any practical conclusion, either moral or juridical. Yet, when they are called “rights,” they are presented as something more than that, because a right is, strictly speaking, the conclusion of deliberation on what is just. When I generically invoke my freedom as a right, I am pointing to a simple human good, but I do so as if it were something that definitively corresponds to me, even before defining the extent to which it really corresponds to me.

Precisely for this reason, I think Nigel Biggar is quite right to point out that, in its “tendency to push all other moral considerations off the table”, modern rights discourse “pre-empts and shuts down ethical deliberation” by “asserting at the beginning what is properly a conclusion.” It is ironic that, in this critique of rights discourse, Biggar does no more than reiterate something that follows, as a corollary, from the definition of rights by their greatest apologist, Ronald Dworkin: rights as trumps that pre-empt and shut down deliberation. Perhaps, then, this characterization is more than a spurious reading, and really responds to the very nature of the language of rights. As for the fact that Dworkin sees in this “babelic confusion” not a vice, but a virtue of rights discourse, perhaps it is better not to comment… It is difficult to find rational arguments to convince someone who openly challenges what I deem to be commonsensical evidence, for all argumentation needs to appeal to shared evidence. As Leibniz put it, “every demonstration is ad hominem.” 

Conclusion 

In the light of the above, I think it would be a sign of intellectual levity to caricature the critique of the discourse of human rights as the fruit of a return to positivism, of insensitivity to the human, or even of a kind of atavistic nostalgia for authoritarian times. The state of disarray in which this discourse finds itself should, to say the least, support a call to return to the warnings of those who have critically reflected on it, from Burke to the present day. Many of these voices are far removed from any positivism or relativism, and claim a strict link with the classical juridical tradition. I think it would be a mistake, therefore, to turn a deaf ear to their reasoning, or to dismiss them without the rigorous examination they deserve. 

The foregoing reflection does not, of course, preclude admitting that the text of the catalogues of human or fundamental rights constitutes a starting point for the contemporary jurist in the context of his profession. Unlike philosophical reflection, law is an art and a topical science, i.e. it is based on a series of commonplaces accepted in the society in which it is applied. Jurists who defend the unborn child before a court of law do very well to have recourse to articles 3 and 6 of the UDHR, because these are the commonplaces recognized by legal practice; or, in other words, they are the cards accepted in the games of jurists. This triviality cannot prevent us, however, from making a deeper criticism of these categories and of this commonly accepted language, examining the cards to see if they are marked in such a way as to privilege some kind of cheating in the game. This is the subject of the reflections in this article.