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Dan Edelstein on Human Rights

Professor Dan Edelstein works for the most part on eighteenth-century France, with research interests in literature, history, political thought, and digital humanities. Most recently, he has completed a book manuscript on the history of natural and human rights from the wars of religion to the age of revolution (On the Spirit of Rights, forthcoming with […]

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This is KZSU Stanford.
I'm Robert Harrison. Welcome to entitled opinions.
We're coming to you live in the Stanford campus.
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We've received a lot of queries about our intro music while entitled opinions was on hiatus.
And those queries usually come from new listeners who don't already know that most of our intro songs are by the band Glasswave.
That's right, yours truly.
The song I'm playing today you've heard before.
It was written by my friend and colleague and fellow band member Dan Edelstein,
who lo and behold joins me in the KZSU underworld today.
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Where those of you who practice the persecuted religion of thinking take refuge from a mindless world by listening to entitled opinions.
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♪ There you go, well Dan Edelstein, welcome back to entitled opinions.
It's good to be here. I haven't heard that song in a while.
Well, that's right. And it's been quite a while since our last confession.
We did a radio show way back when you were still an assistant professor
in our Department of French and Italian and not the chairman of the Division of Literature's cultures and languages,
which is your current title.
It was also before you published your first book, The Terror of Natural Right,
Republicanism, the Cult of Nature and the French Revolution.
That came out in 2009.
And you followed that book up pretty quickly with another one called the Enlightenment Aginiology.
And now you have another one in the works. It's called The Spirit of Rights.
Do out in the fall with the University of Chicago Press, so Pamaamoshe.
And when I think that how far you've come and that our singer, Christie Walpole,
whose voice we heard there is a tenured professor at Princeton, not too bad, not Chabi.
So we're devoting our show today to the topic that you deal with in your forthcoming book,
namely the rise of thinking about human rights.
And by the way, let's remind everyone that what we call human rights is first and foremost
a thinking matter.
Because it is the fruit of a long history of thinking about natural rights, legal rights, sovereignty,
the social contract, and much else besides.
And in fact in your introduction, you write the following. I'm going to quote this.
This book presents itself as a history of how natural rights became human rights,
from the wars of religion to the age of revolutions.
And ultimately to 1948, more modestly it is a genealogy of the rights regimes in shrine during the American and French revolutions.
And you go on to claim that to reconstruct this genealogy, it's necessary to reach back to the 16th century, if not further.
And that's exactly what you do in your book. You revisit what you call, I'm quoting you again.
The sprawling series of debates between jurists, theologians, philosophers, political reformers, writers, and others pushing rival rights regimes to defending, conflicting ideologies.
And today we're going to discuss at least some of these debates.
But rather than starting at the beginning, if there is even a beginning to this story, why don't we start with one of the founding scriptures of America,
which gives a full-throated articulation of the way we in America tend to think about rights today.
And I have in mind the second paragraph of the Declaration of Independence, which begins famously with these words.
We hold these truths to be self-evident that all men are created equal, that they are endowed by their creator with certain inalienable rights,
that among these are life, liberty, and the pursuit of happiness, that to secure these rights, governments are instituted among men,
deriving their just powers from the consent of the governed.
That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it.
And to institute new government, laying its foundation on such principles, and organizing its powers in such form as to them shall see most likely to affect their safety and happiness.
I guess we tend to forget just how revolutionary those words might have been at the time.
I'm guessing that you're going to agree that these sentences contain a specific kind of thinking about the relation between governments and what the Declaration calls unalienable rights.
So my first question would be how did the founding fathers understand that relation?
Thanks Robert. Yeah, that's a great question.
And I think the first point I'd make is that they were inheriting a certain framework for thinking about government.
A framework that does really get put into place in the 16th century.
And this becomes sort of the lingua franca for how do you define legitimate government?
And I'd say it's the lingua franca because it's not only the revolutionaries who think this way.
Even Hobbes, Groesius, some of the more conservative authoritarian-minded political theorists will also provide an explanation for legitimate government and in their cases legitimate monarchy that still hinges on this idea that ultimately all power and all political power
has to come from the individual who has joined into the polity.
And of course, this is already quite a different way of thinking about sources of political power than you'd find in earlier times,
say in the Middle Ages where there was more of an assumption that all power comes directly from God that's from Paul.
And I think at this moment, in time of the 18th century, all power ultimately still comes from God.
And in the quote you read, there is that line that might not sit so well with secularists today that these are rights that come from the creator.
But now the people, each individual who forms part of the polity is the mediator of this power.
And so then the question becomes, how do you go from all these individual rights, generally understood to be rights that we have in the state of nature, to having a legitimate government that somehow is the product of those rights.
And many of the thinkers that would be writing between the 16th and the 18th century are proposing different solutions to that problem.
I've always been mystified by the word "unalienable" because everywhere you looked in the 18th century, the so-called "unalienable rights of life liberty and the pursuit of happiness" were discarded, transgressed, and often didn't even exist in terms of the actual behavior.
So the one thing about rights in general, I believe, is that they can always be alienated, and they're constantly alienated, and we need government or law in order to protect them.
They are extremely fragile.
And I suppose that "unalienable" means as far as God is concerned, because history, the long sweep of history has shown very little regard for human rights.
And then this word "self-evident," we hold these truths to be self-evident.
We know that Thomas Jefferson, the original reduction of the declaration had different words in self-evident, he said, "We hold these rights to be sacred and undeniable."
And then Benjamin Franklin is the one who revised that to say "self-evident," which is the language of reason.
No, it's clear, self-evident to whom, to the eye of reason. Because if you look at history, it was not at all self-evident that governments existed in order to protect these rights, or that there was government by consent of the government.
Where had there ever been governed by consent of the government?
So you could say that there's a certain faith in the new regime of reason that the notion of these rights are tied to.
And it does still have that carryover of a creator, of a deity, that these rights have to be referred to. I don't know if I'm overeating that.
Well, I think that both of those terms reflect the long and torturous history of rights.
So to take inalienable first, that's actually a concept that was, the concept of inalienable rights was originally applied to sovereigns.
And the idea there was that the sovereign cannot alienate his domain, meaning that even if the king of France were to, in his will, give away Brittany to the Spanish, that that would violate the fundamental
laws of the kingdom. And so I think that in the political sphere when people start talking about inalienable rights, what they really mean is that the people cannot give away their rights to a king.
That had sort of been this more authoritarian argument about how you go from individual rights to absolute monarchy.
And the theory was that, well, maybe a people get together and they decide that they don't really want to be self-governing. They would rather have someone do that difficult work for them.
And so they just alienate their rights to an emperor, to a king. And that's that. There's no going back.
So I think when people like Jefferson are using this language of inalienable rights, what they're really saying is that form of government is always illegitimate.
There's no justification. You can't sell yourself away like this. And there's a really long and complicated history about these debates.
With respect to self-evident, I think you're completely right that this is sort of the language of reason. But I would actually say that it's not that, I mean, there are different connotations between self-evident and sacred, but ultimately they both sort of draw back again on this longer tradition of recognizing natural law as having a divine origin and that we as humans can access natural law through our reason.
And if you go back to Cicero, there was a very sort of close equation between natural law, reason, and divine meant, divine intelligence.
So today, I think we're more sensitive to the difference between saying self-evident and sacred. But I wouldn't go so far as to say that this was an attempt to say to secularize the declaration as we saw it.
We saw it, there's already the mention to the creator, there's also the laws of nature and nature's God. So maybe it was more stylistic than anything else.
So when you say that we have to go back, at least to the 16th century, what is it that happens in the 16th century that makes it a kind of starting, a loose starting point for you, because you actually go back to Rome as well.
But what is it takes place in the 16th century that gets this whole thinking about rights going?
So yeah, and I think it is important to say that I'm not suggesting anything starts in the 16th century, but it is a good place to pick up the story.
And it's a good place for two main reasons. The first is that in the beginning of the 16th century, there's a revival of scholastic thinking.
So scholasticism was the theological and philosophical doctrines mostly associated with Thomas Aquinas, who famously had combined Christian theology with Aristotelianism.
And Aquinas was central in a long history of natural law, because he's probably the Christian theologian who develops natural law thinking the most.
What is natural law? Well, natural law is a very complex topic that has very ancient roots.
So it's one of the three categories of law that you would find in Roman law, and it's even before that there's the idea of natural law in Greek philosophy.
And essentially there's some differences in how people define it, but the idea of natural law is that there is a universal justice that everyone should be able to recognize if they're using their reason.
As opposed to positive laws, which are the specific laws that any given society or community lays down as through legislation.
Exactly. Right.
And so, for instance, one of the common examples is that self preservation is a natural law.
It's universal, everybody will recognize it.
And already in Paul, in the epistle to the Romans, there's a very famous passage where Paul writes that the Gentiles have the law, even though they don't have revelation.
And he's sort of pointing towards the stoic idea that all peoples have some shared sense of justice and that justice isn't just constructed, which was another view in antiquity.
Okay, so back to Thomas Aquinas. He takes this ocean of natural law.
And so Aquinas has all these gradations, so natural laws are part of the divine law, which is include revelation.
And then in the 16th century at the University of Paris, there's a renewed interest in this teaching.
And it's a critical moment because at that time, representatives of what will become the Spanish natural law school.
So someone like Francisco de Vittoria is in Paris studying with the main proponents of this Scholastic Revival.
As is John Calvin, who would go on to later formulate the Huguenot or Calvinist doctrine of natural law resistance.
So this is intellectually, this is what's happening, this is why it's important.
But then politically and socially, what is really key about the 16th century is that it's the moment where the words of religion break out.
And I think they break out all across Europe, but it's really in France in the second half of the 16th century that what we see is for the really one of the first times, different political groups start to use the language of natural rights to justify their positions.
I refer to this as the weaponization of natural law.
So the Huguenot is especially in the aftermath of the St. Bartholomew's Day massacre in 1572 when the king of France and his mother, Catherine of Medici,
leered the major Protestant leaders to Paris on the occasion of Henry IV wedding and massacre.
I tried to massacre all the leaders of the Huguenot movement and this really marks a turning point in the Wars of Religion.
After that, the Huguenot's start to make these...
The Huguenot is being the Protestant.
The French Protestant.
Start making these political claims that are on the basis of natural rights.
And that will catch on very quickly.
The Catholics, not to miss a beat, start doing the same thing.
And you can really trace the spread of this natural right political discourse throughout Europe from the late 16th century onward.
So natural rights in this context mean the freedom of what we would call freedom of religion to practice religion without interference from political power or is it more than that?
It is more than that.
They're picking up on some, as you mentioned, there's some Roman law elements here that they're picking up on and that they're reformulating in terms of natural rights.
In Roman law, there was a famous passage of the Digest, which is one of the three major books of Roman law as codified by Justinian.
And in the Digest it describes that the power of the Emperor is given to him by the people.
And this is called the Lex regia, the Royal Law.
And the people give their... their Imperium and put this dot them.
So their power and command to the Emperor.
And this then will get sort of re-phrased in the 16th century as sort of the people each have this natural right to govern themselves, which they could keep or they could give away or they could lend.
It's a little unclear in the Roman and that's right in the Latin.
It's unclear whether this is an alienation as we were discussing earlier or whether this is simply a transfer or something.
That the people could take back.
So already in the 16th century this is being defined in terms of natural rights.
So yeah, that's why you speak about these three regimes that you call preservation, transfer and abridgment.
Preservation, I take to mean if I understand you correctly, is that no matter what kind of state is formed through the...
You know, the... the... a polity that the individual rights are preserved regardless of the state.
Whereas the transfer is that you... is this a Hobbesian notion among others that people get together and say, "Okay, in our self-interest as a...
as a group we were going to hand over these natural rights that we have to a sovereign so that we can live in peace."
And then the sovereign now takes over the whole business of adjudication and... and... you know, legislation.
Abridgment would be something in between the two, no?
Yeah, so Hobbes is a little complicated because he actually talks about all three.
But he's helpful for thinking about these differences.
So Hobbes recognizes or... or affirms that when we enter into political society, there's... we have to give up a lot.
That's sort of his big idea.
And, rhetorically, he's very astute because he paints the state of nature and he describes the right of nature that we have in that state as essentially infinite, right?
We have the right to everything. So by over inflating that natural right, obviously you can only enter into political union by... by curbing it.
But there's three things that can happen to this right or these rights that we have in nature.
You can... you can keep some. So Hobbes says, "Well, you always keep your right to self-preservation."
So that's sort of the preservation part that... that some rights doesn't change.
Whether you're in society or you're in a state of nature.
But then some you just have to give up and that's the abridgment regime.
And Hobbes will become identified with this abridgment, this idea that a condition of politics is that we have to sacrifice.
And in that case, these rights just go up and smoke.
But then there's a third option which Hobbes also alludes to and which will in fact become more prominent among some of the...
Some of the Republican-minded thinkers or some of the more liberal thinkers like Locke.
And that option is that, well, we... we give up these rights but we give them up to someone.
So Locke will say, "We give them up to government."
And in that case, it's more that that's the transfer regime that the government can exercise certain functions on our behalf.
So the famous example in Locke is the executive right.
So in the state of nature, if you kill someone, well, then I have an executive right to bonk you over the head.
Because I'm sort of the... the policeman of the law of nature.
Whereas in society, I don't have that right anymore.
We have a real policeman.
And so we've transferred this executive right to the state.
And the transfer regime typically what you will find is that if the state or the sovereign does not fulfill his side of the bargain, then we get our rights back.
And so it's not an alienation.
We're not giving them up forever.
We're entrusting them to government simply to... to execute them better.
And is that what we hear then in the declaration with a passage I read that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, namely reclaim the rights that have been transferred to that particular government.
And to institute new government laying its foundations on such principles and organizing its powers and such form as to them, she'll seem most likely to affect their safety and happiness.
Well, it's really interesting that the declaration in fact is kind of combining a preservation regime, right?
Because we hold these truths to be self-evident that these rights, the rights to life, liberty, and the pursuit of happiness, those aren't supposed to go away.
So you're supposed to always preserve those rights.
But they also are picking up on sort of a more lock-in argument that the people always have the right to resist a despotic government.
And in that sense, there is this idea that they have transferred away some of their rights to, in this case, to parliament, and that they want to regain them and reconstitute government.
And if you think about it, this idea that the state is designed purely so that we can preserve our rights, it is a little strange how then you could get to government.
And there's a really fascinating debate I talk about this in the book between the Governor of Massachusetts and the Assembly, which, and of course, Boston was really the epicenter of pre-revolutionary arguments.
And the Governor is quite astute. He says, you know, how do you expect to keep all your rights in a political state?
I mean, you elect someone to represent you. Aren't you alienating your rights to that person?
And how, you know, you keep saying to me that, you know, you want to keep your rights under all conditions, but you can't have a state like that.
And they kind of back off a little, say, well, you know, there's a little bit we have to give up, but still, essentially, the goal of the state is to preserve our rights.
Exactly. Or in some cases, you could even imagine enabling the rights, because in a state of nature, not talking about natural rights or natural law, but in a state of nature, life, liberty and the pursuit of, I've never known an animal to respect the rights of another animal not to be devoured by that organization.
Right. Or, you know, liberty and pursuit of happiness. There's also an idea of government as enabling these unalienable rights rather than merely preserving them.
Very much so. Yeah. I think there's sort of two responses to this. Everybody recognizes that the state of nature is not the best way to preserve our rights.
One response that, say, would be locks is precisely because our natural rights to property is insufficient, you know, because you can just come along and take it from me if we're in the state of nature.
We need government to give us laws and the laws are in fact a better protection for our rights.
So there's a big debate about whether in lock you actually keep your natural right to property or you exchange it for essentially a positive legislation.
But people, then there's this other take which is more along the preservation regime and that really gets ensconced in the revolutionary period, which is that the very purpose of government is to preserve and enhance our rights.
So here's a question about the ancient world because you talked about the Lex, Reijia and the idea that the people hand over a certain their own sovereignty to the emperor.
But that's a different thing than the notion of individual rights. There's certainly the rights of the people you can imagine the Romans and the Greeks that the demos, you know, we have the people as a whole.
But the individual rights I think is something that has to arise much later, correct?
Yes, yes and no actually. I think that there was a concept of individual right in the ancient world with respect to civil property.
So, you know, the Romans had had plenty of rights in that civil sense they used the same word, use, which is the term that would later be used as a right.
It's very confusing because use like the French term, the law, can both mean an objective sense of justice.
So if you say use not to rally in Latin, that usually means the laws of nature in general, but you can also say, you know, use male, my right, which we distinguish in English between those, but it's the same word in Latin.
So they did have that specific sense of, you know, well, this is I have a use to this field and you don't.
It's true, however, that they didn't really think of natural rights in those in that way.
They thought of, there's a lot of nature and the law of nature implies that we all have certain duties.
And so, correlatively, you could say that already built into that there's the idea that we also have natural rights.
But it's true that it's mostly in the 12th, 13th century in a very theological context that people start referring to sort of the individual rights, natural rights of people.
And is that connected to the Christian idea of the soul that each individual has a God-given soul?
So it will be connected to that idea by these writers.
I'm not sure, however, that you need that Christian idea to make it sort of conceptually possible to speak this way.
Because if you take the case of Antigone, we're going now going back to the Greeks and her insurrection, you know, against the law of the state, represented by Creon.
A positive law, no one shall bury a traitor or an enemy.
And she rises up in the name of another law, and it could be a natural law.
She conceived of it as a natural law.
It was the law of family and kinship, the obligation to bury.
But she does not presume there that to make her case in terms of her individuality.
It's not that I, Antigone, have the right quatt, Antigone to bury my brother.
It's that there exists a natural law that says that you must bury your kin properly so that they can find their proper abode in the afterlife.
And so individuals may act on behalf of these more universal natural laws, but not appeal to their own
individual selfhood as the locus of where these laws are rooted.
So there is a difference between that and what takes shape in the 12th, 13th century and the Middle Ages.
Yeah, there's definitely a difference.
I just think that sometimes that difference has been really overstated.
So there's a lot of people like Leo Strauss, it would be one example, who see this shift from the kind of discourse you're describing, where you invoke natural law.
You invoke the sense that there is a universal justice, and that's for Strauss and others.
That's good.
And then starting in the 13th, 14th people can debate it and then really culminating in the 17th, 18th.
We start phrasing this all in terms of rights, and then that gets viewed as this sort of rise of individualistic, egotistic society that destroys on a sense of universal justice.
And I think that we have to be careful not to push it too far, as we were just saying, even in the declaration of independence.
The first mention is to the laws of nature and nature's God.
And so people who are making these rights claims, yes, you can start to make claims that maybe have more purchase.
And I think the real difference is that it starts to catch on.
You can start saying, well, I have this right to property, but actually maybe I also have a right to social security.
And so I think once you start phrasing these claims in terms of rights, then you get a different sort of logic of expansion that takes place.
But I think the key is that this broader objective sort of sense that there is a moral structure to the universe.
That doesn't go away.
I think it's gone away today. And interestingly, we're now left with rights without really any sense of duties, without any sense of obligations towards the others.
And in many respects, that's both theoretically a strange place to be, because how do we justify and ground these rights?
And people have argued, and I think that there's a lot of truth to it, it's a kind of dangerous place to be.
If we only think in terms of rights and not of obligations, maybe we are fulfilling those straw-caion fears about egotistic and due to the dualistic society.
And especially when rights are conceived of it in parental terms that there is this government that is supposed to act as the provider of the right to social security, the right to health care, the right to child care, the right to join the Boy Scouts or whatever.
We can talk about how this can spiral out of control a bit later, where the child's claim, because it's parents that you brought me into this world, and therefore you are responsible for my welfare and my ultimate happiness.
So I can make these claims that you provide me with this and you provide me with that. And when one transfers that kind of thinking to a government which is under greater and greater obligations to fulfill greater and greater demands of its citizens, that I think that you're right.
We can be entering it to dangerous territory, because it's removed from the universalism of the notion of a certain kind of justice.
But I'd like to follow a little bit the threat of the history, so we talked about the 16th century and the Huguenots.
And that's kind of move forward if you don't mind to the big moment in the history of how natural rights becomes human rights.
And that's the French Revolution.
What did the French Revolution contribute to the evolution of this process of natural right theory becoming a human rights theory?
So I think the first thing I'd say is that I think it's dangerous when we become a little too nominalist and focus at the sort of surface level of how people are calling these rights.
Because the more time you spend reading treatises of all sorts from the 17th or 18th century, you notice that this language of rights is always in flux.
So already in the 16th century, someone like Tildel de Bez, who was Calvin's successor in Geneva, when he's writing in the aftermath of the St. Bartholomew Day massacre, his expression is Duois Uma, which I don't want to suggest that that is human rights already there and then.
But I think it just shows to us that it wasn't as if there was a turning point linguistically from one expression to another.
And similarly throughout the 17th century in English, you find all sorts of variations.
So you might get the natural rights of mankind, the rights of all humanity.
It starts to settle in both English and French in the late 18th century.
So in English it settles around the rights of man and in French it settles around the Daudel-um.
And so I think that's why you even see in the historiography of human rights for French writers, it's completely obvious that human rights are originate in some way, even though that's a little too simplistic in the French Revolution.
Because that's when this expression catches on, whereas in the English historiography, it's easier to distinguish or to try to distinguish between rights of man and human rights because human rights becomes the term of choice much later, only in the 20th century.
So I think to some extent, you don't want to be too tied to specific expressions.
Now, to get back to your question, what is the French Revolution?
Why is it so important?
As a document, the declaration of the rights of man or the citizen,
It's purely just if you looked at it as text, there's nothing in that document that is novel, that is revolutionary in the history of ideas.
Now, what is novel and revolutionary is the fact that it becomes a legal document.
It becomes part of the French Constitution of 1791.
And therefore, it introduces a whole new set of political practices, practices where people will appeal to human rights in various contexts.
So you get cases where journalists will appeal to the Declaration of Rights in order to defend themselves against censure, for instance.
And I'd say that's a bit different than the American case because the Bill of Rights doesn't have any claim to being universal or to even being grounded in natural law.
It's quite interesting how I'm a bit of a parenthesis, but all the language you quoted at the beginning from the Declaration of Independence vanishes when it comes time to drafting the Bill of Rights.
And that really comes from a completely different tradition, which is English common law.
So getting back to the French Revolution, people start making these claims in the name of human rights, and that's very original.
But I'd say that the reason why this document and the French Revolution are so important in the longer history of human rights is because very quickly the Declaration becomes seen as a kind of universal declaration of human rights.
It's not just about the French, it's about all the peoples in the world.
And so what you'll find in the 19th century is lots of constitutional framers start taking language from the Declaration of Rights, quite literally just taking out articles, usually translating them into their own tongues, and then plugging them into their constitutions.
And so what one sees over the course of the 19th century and then into the 20th century is all of these jurists and political politicians and everyone who's sort of thinking about international law, they're looking to the Declaration of Rights and actually to the two declarations of rights because there's another one in 1793 that's very important as well for the way it introduces social rights.
They're looking to these documents and saying, well, we should really make something like this, we should repeat it for everyone.
And in essence, what they're pointing to is what would become in 1948, the universal declaration of human rights.
We can talk about that in a moment. First, the French declaration of the rights of man and citizens, right? I'm very intrigued by the role that citizenship plays in the regime of rights in general.
Because I really do believe Hannah Arendt, who underwent an experience of statelessness along with millions of other people during the Nazi regime, and we see many such issues.
In our own time of people who are kind of thrown out out of because of failed states or refugees without asylum.
And she says that human rights, any kind of declaration, are completely feckless if it's diverse from citizenship as we see that no one will respect at all a person just because he or she is human.
Only to the extent that he or she has a legitimate citizenship belonging to a nation or something will there be a chance that these human rights will be protected.
And therefore, there is a way in which the state, I guess I'm I rent enough to continue to insist that the state is in many ways an enabler and not only a protector of what we call, you know,
the universal rights of human beings. Because without a state apparatus or some kind of enforcement regime, rights are the easiest things to be violated at any given moment.
You know, with impunity, when it can happen, as it did happen for millions of Jews in the Eastern Europe, for example, when you, you know, that this is one of Timothy Schneider's argument about the strategy of the Nazi regime was to create a dysfunctional states wherever they went and in Poland and other places because they knew that where you undermine and cause, you know, the very foundations of statehood to collapse.
Then you can get away with any kind of criminal violation of human rights. So, in your thinking how much do rights depend on citizenship as the declaration, the French Declaration of the rights of man and the citizen seem to suggest.
Yeah, it's a tough question. In the case of the of the Declaration, so we've just moved back to 18th century France, I think that if you when you read the 17 articles, it's quite clear that some of these rights are, they don't know the rights of man and others are the rights of French citizens in the sense that there you kind of start to enter into
Not really positive law, but how are these rights going, how are these natural rights going to be protected in a state? And as we were saying earlier, all natural right thinkers agreed that the state of nature is insufficient to defend our rights.
So, in every of the three regimes we've been discussing, there's an assumption that you need the state to either to protect your rights or to give you something better than your natural rights.
So, I don't think anyone was ever, I mean, in the 19th century you start to get some anarchists who might believe that no, we can do without the state, we can just have our rights and everybody will be happy.
But I also feel that the Arentian critique is maybe a little overly harsh because let's take civic rights. Civic rights get violated all the time.
We have rights, even rights that are afforded to us by the bill of rights that aren't always upheld. And I think what we see in this country with respect to police violence is a reminder of that. Does that mean that they're not real? Or does that mean that we have problems with the enforcement mechanism?
Clearly. That's the thing, as already Dante was saying, the laws exist, they're there. Who is enforcing them? No one.
That's the, what he perceived as a dysfunctionality of his medieval city states society where the emperor was lacking and therefore in the absence of a governing authority of enforcement.
But that's what a state and that's what citizenship, the blessing of citizenship would be that you can rely on your nation to defend you in these, in these moments.
And that's definitely the way in which that sort of the nation is supposed to be the first enforcer of human rights. And even if you look at the European Commission on Human Rights and the European Declaration, it says that every nation that adheres to the treaty is not the same.
It must include in its constitution the human rights afforded by European Commission, by the European Declaration.
So I think that that's always the case that the nation should be the first enforcer. And then the question is what do you do when the nation fails to do that?
And there's a very long tradition ultimately going back to Augustine, but really getting established with Groesius around this idea of the right to protect.
So that's the idea that if you have a state that is violating the laws of nature and is violating the natural rights of its citizens or its subjects, then other states should intervene to uphold them.
Now, that's a very old idea that we still have today. I think it's not always, it can be a risky proposition too, right?
Sure, sure. It's a very delicate thing because on the one hand, I would seem to be suggesting that if rights are going to persist, it demands strong states.
On the other hand, strong states can also drift to tyranny and can become the means by which rights are taken away from its citizens.
So, yes. Is this mean that you want to just become an unrestrained champion of statehood at all costs? No, I don't.
But at the same time, I also think that so much of human misery and so much of the violation of human rights around the world is due to weak states, dysfunctional states.
I guess the question would be to ask what's the alternative? Because it seems that if one wants to pursue that line of argument, you very quickly get back to the debate in Plato's Republic about, you know, is there such a thing as just a question?
Is there such a thing as justice or is it just as Thrasimakis would defend? It's just the law of the strongest.
So, you know, the Nazis are invading Eastern Europe. They are killing everyone, all the Jews that they find.
And so that shows us that really in this world, there is no justice and the strong can do what they want.
And I think that natural rights comes out of the human rights, come out of the opposing view that there is some minimal justice that will not always be acknowledged or recognized, but that can still be appealed to so that at moments such as the Nuremberg trials after the war, you can enact some justice.
No, I agree. No, for sure. We need -- I'm not contesting the notion of rights and their foundation in some kind of natural law. I agree with that. I support it.
It's just that in the moments of political crisis where you don't have the state that enforces it, or if you have a state that takes them away, human rights are completely feckless.
I think Hannah Harris is right on that score. So, I guess the question is what kind of governments are consistent with the preservation of these rights?
Yeah, and I think that's a really interesting way of asking the question. And one could, again, point to the French Revolution as an interesting case study here, because the revolution starts off in 1789 with this great declaration of the rights of man.
And then four years later has been trampling over what to us would look like the human rights of French citizens who are accused of being -- were just suspected of being enemies of the state.
And I think with that point -- and in your first book, I believe you said that what their rationale was that they did not consider the enemies of the state human. They had to define them as somehow not human, because if they were human, they were entitled to these rights.
Yeah, there's a whole line of thinking in natural law theory that somebody who violates the law of nature shows themselves to be dehumanized and therefore should be exterminated.
Right. It's a very dangerous thing. It's a very dangerous thing.
And one -- yeah, the gate.
And we use these kind of tactics in our own ways. And now, if you want to deprive someone of that, you call them a terrorist.
Yeah, and Bush actually was describing the prisoners at Guantanamo as enemies of humanity, which was precisely the phrase that was being used during the French Revolution.
Now it's journalists.
Right. And the enemies of the people, which, of course, was Stalin's favorite term of art for purging.
But I think this gets us to a really interesting difference between the American Revolution and the French Revolution, which is that the Americans still today ultimately care more about rights that don't really fall in the natural law tradition.
It's these rights about juries, these rights about excessive bail, the habeas corpus, everything to do with the justice system.
And the French didn't have that because they didn't have common law and they had a completely different legal tradition.
And I think that it's when you have these kinds of restraints on what the state can do to you through the judicial system that this seems to be the necessary safeguard for preventing the wholesale rights violations that you're referring to.
And a lot of NGOs now, human rights NGOs really focus on trying to ensure the rule of law in many semi failed states, making sure that the accused have access to lawyers because they realize that if you can secure that piece, then it makes it much harder for governments.
So enforcement is as important if not more important than the actual laws on the books.
I mean, as I think Hobbes had the line that laws without swords are mere paper.
So here when we're talking about the universal declaration of the rights of man, but the UN charter is called the Declaration of Human Rights.
Also, another thing we haven't talked about probably don't have time is why rights are so connected to declarations that if they're not declared, it's as if they don't exist or it's declaring them as such that these become a kind of speech act that brings into being the thing that is being declared to exist by nature.
But of course, if you don't declare it, they don't exist.
There's an interesting rhetorical move that you find both in the French declaration and in the UN declaration, which is this idea that we're declaring them as a reminder.
So they're both aimed against ignorance.
And you find that in the preamble of both texts.
I think the idea behind declaring is about remembering to ourselves what these rights are and not about affirming them for the first time.
Yeah. And we had a student, a graduate student who wrote a really interesting dissertation on the whole notion of declaration.
Yes. Exactly.
So there, you know, declaration, you can say, well, if I don't declare my love for you, do I really love you?
Yeah, you could say, yeah, I've always loved you, I never declared it, but somehow in the declaring of it, it becomes real in a way that it might not be otherwise.
So declaration has its role to play. I don't deny it. And therefore the universal declaration of the rights of men with the UN, 1947 or '48, '48, I guess it's important as a declaration, but I think that when it comes to rights, one really should be a minimalist that there have to be certain minimal, you know, few of them, but fundamentals.
I don't know what you think about that document. I think it's really rather pathetic and absurd. And I've denounced it before on this program in another show on human rights, but when you start reading all those articles, that, so for example, everyone has the right to work to free choice of employment to just and favorable conditions of work and to protection against unemployment.
No? Everyone without discrimination has the right to equal pay for equal work. Everyone who works has the right to just and favorable remuneration ensuring for himself and his family in existence worthy of human dignity and supplemented if necessary by other means of social protection.
Everyone has the right to form and join trade unions for the protection of his interests. Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay, maybe three weeks, you know, every summer on a Greek island.
Everyone has the right to a standard of living adequate for the health and well being of himself and his family, including food, clothing, housing and medical care and necessary social services and the right to security and the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood and circumstances beyond his control.
I mean, I can go on, everyone has the right to education, education shall be directed to the full development of the human person and to the strengthening of respect for human rights and fundamental freedoms, you get the point and this goes on and on, where once you start multiplying what qualifies as a basic human right, then I think you get dangerously close to dissolving the whole the seriousness with which one can even take such a declaration.
Well, I think it's important to remember what the purpose of the declaration was and it says so in the preamble that the goal here isn't to suggest that this is the case, right, these aren't self evident truths that are supposed to be existing everywhere.
But it says this is we're laying out, I mean the exact phrase is a common standard of achievement and this is supposed to be a goal towards which states are working and if you think about it, it's really, I agree with that, I mean that's a should be a goal but don't confuse it with the declarations of the rights of man or the you know, Declaration of Independence.
In other words, you're contaminating the notion of rights in a way that could have nefarious consequences by virtue of the fact that no one will take them seriously anymore.
Well, there is, so there's a way in which the the UN declaration grows out of much earlier attempts to expand rights into socio economic areas.
So even in the French Revolution, it's an hour its problem is that the confusion of the social sphere with the political sphere and that the political when the political gets invaded and colonized by the social and the economic that's when the political loses its own proper sphere of activity.
Anyway, go on.
Well, yeah, I mean I think there's a danger, I agree, there's a danger here in over expanding rights.
The, on the other hand, one thing that the shift from natural rights to human rights enables is the possibility of thinking about the rights of humans in society and under any form of government.
So it seems to me, I mean when you were reading all of those articles, I was thinking in myself, yeah, wow, I'd like to live in a state that has all that.
I mean, it does seem like if you accept the fact that human rights are designed not only to give us the basic minima of survival, but something like the pursuit of happiness that Jefferson alludes to in the
declaration, well, you know, maybe a paid vacation is necessary. Maybe education that is designed.
But there's nothing to prevent you adding any number of desi de rata, everyone of my desires is a natural right now.
I think that's overstating it. All of these rights seem to derive from a certain number of key ideas around work and education and maybe family that there's a sense that in society we're defined by labor.
We're defined by our education and we're defined by the choices we get to make with respect to our families.
So, you know, I think it's easy to poke fun at this, but on the other hand, I think that the logic isn't one of infinite expansion.
Well, I don't want to poke fun at it as much as say that it's a profound misunderstanding of what is political and what is not political.
And I'm a rent in here. She distinguishes between labor, work, and action, you know.
And for her labor and work are not part of the political, or the Vita Activa, which is about speech and deeds and it takes place in a separate arena.
But that the modern, what she saw in the 20th century was that there's an increasing contamination and what some of her commentators got the blob.
The social becomes a blob that takes over the whole political sphere. And so if you're going to conceive of labor and work as being imminently political, then I suppose you can go forward with a declaration like this.
But does it not become politically feckless precisely because it hasn't respected the different domains to which these fears belong?
I mean, I think a rent was a little too Athenian and had this ideal that you could separate the Agora from the dirty world of the social end of labor.
So let's remember that ancient politics was able to separate work from politics precisely because they had the slaves doing all the work.
And so in a modern society, I don't believe that it's possible to distinguish between the social and the political in this way.
And the history of really modern politics has been one of trying to rein in the excesses of the robber barons.
So once you sort of proclaim that the social and the political should be separated in a way, that's just allowing for the gilded age to return.
Well, perhaps, but there's nothing in the universal declaration of the UN that says that I do not have a right to an iPhone.
Why should it not be a universal right that each person should have the right to a smartphone? It's essential for communication.
So many people have become dependent on it. So I can see adding another article that every person shall have a cell phone.
And preferably the ex-model of the iPhone, why not?
Well, so I do think that there is a way in which rights talk tends to spread, right?
And we discussed that earlier, and you see it really clearly in the 18th century where we talk about the rights of man, then that begs the question, what about the rights of women, what about the rights of slaves, and then it gets to the rights of children?
And maybe we have to think about rights as being historically contingent.
Now, I know I agree that there's a huge problem here about justification and legitimation.
What is the ultimate justification of a right to paid vacation?
Well, it just seems that in order to reach the fulfillment of the human, which seems to be getting back to Jefferson, the pursuit of happy.
If you don't have a paid vacation and you live in a world where you don't have slaves doing your work, then that's not an excessive right.
Maybe we'll get to the point where in order to have human fulfillment and you don't have access to a smartphone, then that too will seem like an inalienable right.
But I don't think that it has to be in this sort of mocking way, oh, it's just capitalism, right?
It's more that how do we define these key principles of a right to accept that there's a notion here of implicit is a welfare state that will provide endless benefits for the world's citizens.
And again, it's something that the vision of the American Republic was creating a government that would actually quarantine the individual from over interference and protecting the minority rights of citizens and putting limits on the government's ability to infringe on rights and also, and at the same time, allowing the pursuit of happiness.
The pursuit of happiness is an active right.
It's something that the individual, the citizen has the right to pursue happiness, not the right to receive benefits.
It's a very fundamentally different concept of being the benefactor of a welfare system and being an autonomous citizen who can go and pursue happiness wherever it may lie according to that individual's temperament and MO.
Well, so we could get into the fact that the founding fathers didn't have this problem because they were all wealthy landowners.
Yeah, but these people, excuse me, these people are the universal declaration. These are bourgeois.
This is a bourgeois dream or the expectation is that everyone has the right to bourgeois existence where you take your vacation, paid leave and maternity, whatever it is.
So I think it's a social democratic dream.
Well, that's bourgeois. Well, is it? I mean, isn't social democracy supposed to be about extending the benefits that bourgeois enjoy to the largest possible majority of the population?
I guess I just see a fundamental difference between benefits and rights. And this is what worries me is when you start confusing the two.
And you're right that ultimately there is no clear line of demarcation, but then there are gray areas, but I think you have to keep them separate.
In my view, otherwise rights lose the solemnity and gravity tests that would require nations to rally around them.
Well, no, I don't think anyone's ever invaded another country because they didn't offer enough paid vacation to do their citizens.
And many human rights theorists have indeed said, well, there's some core human rights that would sort of be the ones that could be the rise level of actual violations that you might need to interfere.
This is an open question.
Well, that goes to show how much this topic is so central to every aspect of our lives, no? Personal and public and social, especially in a world where it dominated by social media and where these topics are not going to go away.
So we've only had an hour to talk about them, but I appreciate you're coming back on, Dan Edelstein. And I began this show with a song that you wrote from our album, "Glass Wave," and I'm going to end one.
It's about now Sika. It doesn't have a lot to do with human rights. Now Sika is a poor maiden who falls in love with Odysseus. And you know, maybe she had a right to say that I need -- I have a right to Odysseus. He has to stay here and not go back, you know, home to --
to Ithaca, but that's not what happens in the story that you tell in the song I'm going to leave us with.
He had a right to go home.
Yeah, right. You take care, Dan.
Great to be back. Bye-bye.