Rights, morals and history.

1 Introduction

What have human rights to do with morality? The answer depends on who you are. A lawyer might say that the embedding of lists of rights in constitutional law reflects their fundamental ethical importance. An academic moral philosopher with utilitarian leanings might agree with Bentham that rights talk is 'nonsense on stilts'. In this paper I am going to argue that both of these are wrong. Against the rights-valuing lawyer I will argue that moral rights are derived, secondary concepts. Philosophically, they are derived from prudential and moral theories of contract and duty; historically, they are derived from medieval institutional politics and Enlightenment culture. Against the rights-denigrating philosopher, I will argue that rights have immense practical importance for public morality and policy making. They are more potent than the higher-order theories from which they derive. I hope to demonstrate both the derived nature of rights and their power by a historical review of well-known rights documents. I will also briefly consider some implications: As members of society, we should be grateful for what rights do by their simple and concise coding of important moral precepts, but we should also be wary that rights thinking may hide the underlying values and ultimately take us in the wrong direction.

The plan of the paper is as follows. In section 2, I set up the tension between ahistorical moral philosophy, and historical analysis intended to inform ethical theory. This tension is developed in the following four sections: 3 and 4 define human rights and try to situate them in moral theory, without reference to their history. By contrast, section 5 traces the creation and use of lists of rights in historical context. It is selective rather than comprehensive - it collects examples of rights documents and arranges them in a chronology. Section 6 is more critical, arguing that lists of rights have become the most visible expressions of public, social morality, and have even achieved iconic status. Rights are the de facto currency of public ethics - they dominate politics, social action and moral education. Section 7 discusses the benefits and difficulties associated with this. I suggest that the special status given to rights throughout their short history has already led to some unfortunate consequences. This prompts the question of whether the codification of morality as lists of rights is a good thing or bad. In Section 8 I make tentative conclusions.

2 Ethics and history

Beginning students of moral philosophy, drawing their perspective from introductory textbooks, can be forgiven for thinking that ethical debate amounts to a titanic struggle between consequentialists and deontologists[1]. The two sides are not monolithic, and there are ideas that don't fit into either - ideas about sentiment, will to power, and virtue, for example. But the real argument is between Bentham, Mill, and sundry utilitarians on the one side, and Kant and the Kantians on the other. Being attached to their intuitions, these students begin by asking which side fits best with what they believe, and later, persuaded that both have some value, try to find a synthesis or compromise. They may decide that happiness has intrinsic value and persons have intrinsic value, so we should aim for the best outcome that respects people's autonomy. This kind of synthesis may be good enough: for example, physicians, who are faced with frequent and consequential moral decisions, often adopt a form of principlism - a supposed synthesis of utility and respect[2]. Others may admit that there is a fundamental value disagreement that can't be bridged by a fudge. They tend to move towards a more fully consequentialist or fully Kantian outlook. Whatever conclusion they adopt, these students of ethics learn about the tensions of morality and the difficulty of finding right answers to dilemmas. They become intellectually enriched, and, perhaps, better people. Undoubtedly, they assimilate the idea that two great structures bestride morality like a colossus, and that great thinkers think most about these.[3]

But perhaps moral philosophy has been hijacked by the emphasis on this dichotomy. Alisdair MacIntyre certainly thinks so, claiming that through the study of history we can see that the very language of ethics has been fractured from its original meaning. He blames the 'enlightenment project' and in three short chapters of After Virtue disposes of Kierkegaard, Kant, Hume, Diderot, Pascal, Bentham, Mill, Sidgwick, Moore, Stevenson, Carnap and Ayer, as all missing the fundamental point that morality is about human telos rather than human passions, reason or will. For MacIntyre, a teleological Aristotelean understanding of the virtues must be recovered. His work energized the field of virtue ethics, which is directed towards what people should be rather than what they should do. In the absence of Aristotelean or Christian metaphysics, however, it is not clear what people should be (or why). The question of telos divorced from metaphysics is a real problem for virtue ethics.

MacIntyre claims to bring a historical approach towards morality, and says that this is both necessary and neglected. In fact, his historical analysis really consists in vindicating just one proposition: that the rejection of Aristotelean teleology in the enlightenment left moral discourse with an unbridgeable gap between imperfect human nature and the demands of perfect morality. Thus he engages in critical history, though his accounts of the thinking of particular philosophers are historically situated only relative to this one fact.

But is this a truly historical approach to ethics? Would it not, perhaps, be worthwhile to do a little more archeology or antiquarian history before attempting a critical history?[4] Such an empirical approach is advocated by Jonathan Glover, whose most recent book, Humanity: A Moral History of the 20^th Century, focuses on the human cruelty, the torture, killing, and maiming that have characterized much of history, but have been documented in particular, gruesome, detail only in the past hundred years. His aim is to understand what makes humans do evil and what holds them back: 'In thinking about how these terrible atrocities happen, it's helpful to ask why we don't go around doing savage things to each other in everyday life... My investigation in this book has really been to see how these restraints on ruthless, cruel and selfish behaviour - like sympathy and the sense of the kind of person you are and want to be - are eroded in people who carry out atrocities.'[5] He draws a tentative conclusion from the analysis - that communities that nurture the 'benign rebel' in their children are better able to stand against tyranny. He argues, for example, that the people who sheltered Jews from the Nazis tended to be brought up in a non-authoritarian way, to discuss things rather than just do as they were told. Although in this particular book Glover does not go back to first principles[6], he focuses on acts and behaviours that almost everyone would judge very bad, (whether judging by intuition, deontology or utility) and attempts to develop insights about the viability and efficacy of moralities from those behaviours. This approach, I believe, has a lot to recommend it.

In this paper I trace an aspect of ethical history in a modest way - essentially as an antiquarian, but with limited breadth, and drawing on representative documents, rather than a comprehensive collection. I maintain that even this exposes useful information about how morality works. I believe that the approach is more truly historical than MacIntyre's. It is an empiricist approach that in observing events and structures (particularly legal ones), tries to uncover how ethical behaviour relates to ethical belief.

3 Human rights and why they are not fundamental

In what follows I am going to assume that there are such things as human rights. This is a controversial assumption in ethical debate, and even those who believe there are rights disagree on their status[7]. But let us suppose that despite these disagreements, we can speak of rights and most people will allow that our words have meaning[8].

Rights say what a person or people can expect as their due, so far as it is under the control of people or human institutions. Thus, if I have a right not to be killed, then I can expect as my due that no person will kill me. My right entails a concomitant duty on others (and on myself) not to kill me. It is only in terms of this duty that the right has any meaning. If I am killed by a natural disaster, my right has not been violated. Only if a person violates their duty not to kill me do I, or someone with a right to protest on my behalf, have cause to complain on rights grounds.

There is always a duty associated with a right, though in many cases the duty on other people is simply that they do not interfere with or prevent the exercise of the right. Even this idea is more complicated than it seems at first sight. Suppose I have a right to choose for myself whom I will marry (assuming I can get my prospective partner's agreement). This right implies that no-one can prevent my choice. Yet interference in the choice of partner undoubtedly occurs, and probably fairly often. We need to decide what degree of protection against interference is implied by a right, in order to understand precisely what is being protected.

We are often interested in universal human rights, such as those enumerated in the United Nations Universal Declaration of Human Rights, or the Canadian Charter of Rights and Freedoms. These rights are supposed to be extended to everyone. But it is not necessary that a right be universal - indeed many rights cannot be universalized. It is meaningless, for example, to ask whether a man has a right to an abortion[9]. The scope of particular rights is important: those that are restricted can often be challenged at the boundary. For example, if there is a right to compensation for some historical wrong (e.g. seizure of lands or property), then it is necessary to decide who is entitled to this right. Even for rights that are supposed to be universal - for example, the right not to be killed - there can be uncertainty about how far 'universal' extends - whether to infants, fetuses and animals for example.

There are various ways of categorizing rights[10]. One of the most fundamental is the distinction between negative and positive rights. If I have a negative right against you, you have a duty to refrain from interfering with me in respect of the right. Thus I may have a negative right to free speech, which means I can speak freely, if I can find the opportunity. But if I have a positive right against you, you have a duty to assist me in respect of the right. Thus I may have a positive right against a broadcaster to speak freely in response to an opponent (a right of reply), which the broadcaster must help me realize.

Some people believe that there are only negative rights. So I can claim a right not to be killed, but not a right to live. In consequence, I have a duty to prevent someone else being killed, but not to enable them to live[11]. Others argue that positive rights are logical correlates of negative rights because there is no moral difference between acts and omissions if the consequences are the same.

Rights can conflict with each other - for example if I am rich and you are starving, my right to property may conflict with your right to life. Accused rights may conflict with victim’s rights. We can deal with this conflict in one of two ways. First we can argue that because rights and duties are complementary, and because duties cannot conflict (ought implies can), the problem is not a conflict of rights. Rather, at least one of the claimed privileges is not a true right. We must find some way of determining 'true' rights from “false” rights. On the other hand, we can admit that rights do sometimes conflict, and we therefore need some arbitration mechanisms. In either case, we must go outside the concept of human rights to resolve the conflict.

At first, we may attempt to arbitrate different rights, or decide which are and are not legitimate, by applying intuitive ideas about fairness and justice. But this is unsatisfactory, and soon we seek coherence in our rights thinking by looking for similarities between rights, classifications of rights, and ultimately moral principles that legitimize or reject classes of rights. The argument cited above that negative rights exist but positive rights don’t is an example of setting limits to achieve coherence. Similarly, we may decide that some types of rights (those most closely allied to autonomy, or to happiness, or to human potential, for example) have precedence over others. Therefore, we could perhaps argue that suicide is morally legitimate because a person's right to decide that their life is not worth living overrides their right not to be killed. If we prefer the opposite conclusion, then we can argue for the converse precedence. But we need reasons. The conflict of rights shows up their usefulness in one respect - they code moral dilemmas in a clear and concise way - but this encourages us to search for overriding principles. A list of rights is inadequate without arbitration rules.

We conclude, therefore that rights need interpretation and application within a more complete system. The system as a whole - rights and arbitration rules - must be consistent, meaning that all the rights must individually be consonant with the moral theory that establishes the system. Indeed, they should be logically derivable from the theory. We therefore now turn to a review of major moral theories in order to see where rights ideas find a home.

4 Finding a home for human rights in moral theory

In this section I will examine the relationship between human rights and five kinds of moral theory: Contractarian, Deontological, Sentimental, Consequentialist, and Virtue ethics. The ordering is deliberate: I begin with the theories most congenial to rights thinking, and end with those that are most antagonistic to it. Obviously, there are other major ethical theories[12], and the five I have included are diffuse. Similarly, there are many and subtle linkages between the categories. But I think that this framework of five major approaches gives us enough context to examine the relationship between ethical theories and human rights.

Contractarian

Contractarian thinking is based on the idea that we must establish a deal between people to enable us to live together. Its development as a moral and political framework began in the seventeenth century with Grotius - The Laws of War and Peace and Hobbes - Leviathan. Both believed that the universal desire for self-preservation gives rise to a fundamental right - a right to govern oneself. This is held by all humans, regardless of status, yet its importance for Hobbes, is that we give it up. He writes: 'I authorize, and give up my right of governing myself, to this man or to this assembly of men, on this condition, that thou give up thy right and authorize all his actions in like manner.'[13] Thus is introduced the idea of a 'social contract' in which the initial right is replaced by others.

Hobbes had a pessimistic view of human nature, believing that we are all by nature entirely selfish and devoid of any feelings of sympathy, benevolence or sociability. The social contract enables these attributes to be constructed in society. Because we grow to enjoy these things, we may look on their achievement as good. This materialist and sceptical view of morality still holds considerable sway[14]. But it is not a necessary presupposition of contractarians. Spinoza, Burke, Locke[15] and Rousseau are in the contractarian tradition, yet these writers had more optimistic views about human nature. Subsequently contractarian ideas were used by Kant, who would claim to be neither optimistic nor pessimistic, simply rational. In contemporary philosophy, the system of Rawls uses contractarian ideas within a Kantian framework.

This appropriation of contractarian ideas by deontologists can make it appear that the first is just a subset of the second. But we need only go back to Hobbes to see why this is not so. Contractarian thinking includes the possibility that we are all ethical egoists and that the only morality that can work is one that accepts this fact and even nurtures it. Libertarians, for example, view rights in a Contractarian way, but through the lens of ethical egoism rather than of duty[16]. At the same time, contractarian thinking does include Kant and Rawls, for whom the idea of reaching agreement is about achieving rational coherence, rather than egoism. It is even possible to argue that a contractarian framework is the only one in which Nietszche's morality can be worked out.

Contractarian thinking thus spans a broad range of moral discourse. This is important for rights, because their most natural home is within the framework of a social contract. There is a possible trap here: we may be arguing deontologically for rights thinking (see below), yet use much of the same language as ethical egoists (just as Rawls' talk of a contract is superficially similar to Hobbes'). We may conclude that we have agreement about where rights come from, and then discover, when trying to decide what particular rights exist, that our starting points were quite different.

Deontologist

Deontological ethics is an ethics of duty - the duty to act according to reason and not in simple, immediate response to our desires, instincts or emotions. Why should we do this? Kant begins by asking what reason is for. Noting that it is inefficient in achieving happiness, he concludes that nature intended reason for producing a good will - that is the will to do what we ought, rather than act from inclination or self interest[17]. We can choose between the coherence of our rationality and the urging of our passions. If we mix up our choices, we will be inconsistent and undignified. But with a good will - a will oriented by reason - we will act consistently, for reason is consistent. We become, effectively, self-legislators, living by consistent precepts, not arbitrary desires. This gives us dignity as persons, and makes us aware of the same dignity and autonomy in others. As rational actors, we will examine our actions in terms of their underlying maxim. We consider not what the benefits of the particular act will be, but rather, the reasoned implications of the underlying maxim being a universal law. If the result is a contradiction such that we could not will that the maxim be a universal law, then it is wrong to do the act.

The unity of the Kantian system is part of its philosophical appeal, but it also suggests that a successful partial attack will disable the whole theory. Many attempts have been made at this, usually through the first formulation of the categorical imperative (stated last in the previous paragraph). Kant is prepared to suggest that because we cannot rationally will that the breaking of promises or lying should be universal laws, then they are always wrong. It is not just utilitarians who believe there is something wrong with this: questions about the wisdom of giving a promised weapon to a man who has become mad go all the way back to Plato. Kantians believe this criticism misinterprets the categorical imperative[18], but it is one that is often repeated. Whether the criticism is valid or not, the first formulation has caused substantial confusion. Yet the second formulation, derived from the idea of respect for persons, has received few attacks, and stands, in its own right, as a powerful statement of human dignity: Treat persons always as ends in themselves and not merely as means. This principle suggests that there is an intrinsic value in each person, and that their autonomy unconditionally deserves and requires respect.

Apologists for rights thinking can find a congenial home in Kant's moral system. Looking for a moral rather than a prudential reason for rights, they can argue that most of the rights that appear in major lists are entailed by the fundamental human right to be treated as an end in oneself. This position has considerable philosophical appeal, and makes it possible that an entire system of rights could be logically derived from Kant's starting point. As I suggested in the discussion of contractarian thinking, Kantians can be seduced into believing that rights thinking stems from Kant. But before getting too enthusiastic about rights, they should recognize that the Hobbesian tradition has at least as strong a claim.

Sentimental

Theories of moral sentiment share with contractarian theories (as I have defined them) an empiricist approach to ethics. They say that to understand morality, we must observe how people act, noting their motivations and explanations. While contractarians (at least in the classical Hobbesian sense) see human egoism and its rational action as the drivers of morality, sentimental theorists say that emotion and imagination account for so much of what it means to be human, that they often override both reason and self-interest. And it is not just that we need to appeal to the emotions to persuade people to be moral. Any conclusion that we make about the nature of good and evil can only come from this kind of observation. For example, a consequentialist or a deontologist might take the idea of universalizability as axiomatic. To a sentimental theorist it is just the generalization of the imaginative act of putting oneself in someone else's shoes. This act of sympathizing (or, in more modern language, empathizing) with another's plight or joy is as fundamental to sentimental theory as human rationality is to Kant. Nurturing the ability to sympathize (empathize) is as central as developing a good will in Kant. Thus sentimental theorists tend to approve of moral education through literature and drama. They look to enlarge the sphere over which people ask the question 'what if it were me?'

Sentimental theories say we should give proper attention to historical and social contingency, even recognizing our own dependence on culture and tradition when trying to convert our beliefs about value into moral principles. However this does not mean that theories of sentiment are relativist. Rather, taking the question of imaginative sympathy seriously entails condemnation of torture, for example. Indeed, being able to imagine ourselves on either side of torture not only reinforces the conclusion that it is evil, but also reminds us of our own moral fragility. On the other hand, the sentimentalist is likely to see the dilemmas of practical morality as real dilemmas without a correct answer. The difficult questions of applied ethics - abortion, war, economic freedom - do not find ready answers in a sentimentalist framework.

Sentimental moral theory will take an empirical view of rights, just as it does of human behaviour in general. Such an empirical view will be attempted in the rest of this paper. Finding, as I do, the sentimental theories of Hume and Adam Smith to be most persuasive, I believe that rights should be subjected to the historical test of whether they extend or limit human sympathies. As the sequel will show, the answer turns out to be that they do both.

Consequentialist

Consequentialist ethics emphasizes the utility of actions or of rules. It is a teleological system, just as virtue ethics is, but the idea of the good is not linked to a metaphysical purpose, such as the living of a human life towards a completed and appropriate end. Rather it is concerned with maximizing utility, usefulness, happiness, pleasure. The most important consequentialist schemes (for moral discussion, though perhaps not for explaining the way humans actually behave) are agent neutral. That is, they seek to maximize the utility of actions, irrespective of who benefits. Utilitarianism says that the morally correct action is that one which results in the best consequences overall[19].

Utilitarians understand that assessing anticipated consequences is very hard, and therefore prescriptive utilitarianism takes many forms (e.g. act and rule utilitarianism). But the assumption is always that if we could foresee all consequences accurately, and if we could legitimately balance different kinds of utility (e.g. happiness and pain), then the morally right thing to do would simply be that which maximizes utility.

The questions which a consequentialist poses and seeks to answer are:

What is utility?

How is utility to be measured and balanced?

What moral judgements follow from the maximization of utility?

For a rule utilitarian, it is acceptable to form general rules for life, on the basis that following these rules will mostly or usually maximize utility. Such a rule may be 'Do not murder'. None of these rules is fundamental or essential: they are all subject to the idea that sometimes it may be necessary to do something else to achieve better consequences. So rules can be broken, but they are useful guidelines. A utilitarian may be able to think in a similar way about rights. They encapsulate ideas that are by-and-large good. But many rights are too focused on protecting the individual to be acceptable to utilitarians. Bentham was unequivocal: He famously wrote that 'natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense - nonsense upon stilts'[20]. It is unusual today to find a utilitarian so sure of the meaninglessness of rights, but it is fair to say that utilitarianism remains uncongenial to natural rights thinking.

Virtue ethics

Virtue ethics emphasizes the telos of a human life -- the end or purpose to which a life aims. The object of the virtues then is to point, guide (and even carry) the agent towards the telos. In After Virtue, Alisdair MacIntyre shows how Aristotle's understanding of the good for humans developed from the heroic virtues found in Homer. Whereas heroic virtues were seen as good in enabling the possessor to fulfil his/her telos as a hero, Aristotle is interested in the virtues that enable the possessor to fulfil his/her telos as a human being. His analysis at the beginning of the Nicomachean Ethics concludes that the human telos is eudaimonia - blessedness or happiness. He then identifies virtues, the practice of which will lead towards this end. The identification of a different telos may (and has) led to different tables of virtues. For example, for Christian writers, the telos may be fellowship with God, and a consequence of this is that humility rather than pride (as in Aristotle) is a virtue. However, the common feature of virtue ethics systems is that they are concerned with what humans should be, rather than what they should do[21].

The questions that a virtue ethicist poses and seeks to answer are:

What is the purpose or end for a human life? (To what does a good human life aim?)

What habits and practices should humans adopt to lead them towards this purpose?

How are these habits and practices to be nurtured in humans in society?

The idea of human rights does not arise naturally within virtue ethics. On p 69 of After Virtue, after talking about the modern historical development of the concept of a "right", and the absence of this concept earlier, MacIntyre says, "From this it does not of course follow that there are no natural or human rights; it only follows that no-one could have known that there were. And this at least raises certain questions. But we do not need to be distracted into answering them, for the truth is plain: there are no such rights, and belief in them is one with belief in witches and in unicorns."

There are points of contact between rights thinking and virtue ethics. A virtue ethicist believes that by developing the true virtue of justice we will become wise in judging what to do when rules conflict. Thus it might be claimed that the main problem with rights - how to arbitrate between them - can be solved only by a virtuous judge. This may be so, but it doesn't help us connect the virtues to particular natural rights. Can we write rights that reflect the virtue ethics point of view? Existing rights statements don't give cause for optimism. For example, a claim about rights to 'life, liberty and the pursuit of happiness' nods in the direction of autonomy, nods in the direction of utility, but says nothing about telos. And if we try to do better, for example with 'Everyone has the right to pursue their life-purpose' or 'Everyone has the right to well-being', we end up with vacuous platitudes that sound like New Age greeting cards.

Both Aristotle and Christian ethics were concerned with vice as well as virtue. Rights language reformulates the constraints of prohibitions against vice in terms of the rights of the person offended against. This is a real point of contact between the two worlds, but one of considerable tension, especially for Christian ethics. Rights language replaces the concept of sin (against God) with the concept of duty to a human person[22]. It thus abolishes victimless sin.

These considerations seem to confirm MacIntyre's view about the incompatibility of rights and virtues. This may leave virtue ethicists at a disadvantage in engaging with the practical problems of public morality.

5 The genealogy of rights

There could be no concept of a natural or human right before the fifteen century, because the moral vocabulary was not available[23]. Yet there was rights-like talk before this. To find the progenitors of today’s understanding of universal rights, we can search for documented claims to freedom and privilege. Magna Carta, written in 1215, was at least partially about rights concepts, even though very restricted ones. Article 1 reads (in English):

1. In the first place we have granted to God, and by this our present charter confirmed for us and our heirs forever that the English Church shall be free, and shall have her rights entire, and her liberties inviolate; and we will that it be thus observed; which is apparent from this that the freedom of elections, which is reckoned most important and very essential to the English Church, we, of our pure and unconstrained will, did grant, and did by our charter confirm and did obtain the ratification of the same from our lord, Pope Innocent III, before the quarrel arose between us and our barons: and this we will observe, and our will is that it be observed in good faith by our heirs forever. We have also granted to all freemen of our kingdom, for us and our heirs forever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs forever.

This is the first documented constitutional separation of Church and State. Of course, the separation was forced on the King in a political power struggle. There were no high-minded beliefs about personal religious freedom. The freedom of the Church was soon infringed, and even today England has an Established Church. But statements of liberty were being made. Magna Carta contains several other provisions, concerning property ownership, due process of law, and so on, that feature in contemporary lists of rights. For example:

No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right

In Magna Carta, some privileges accrue to people and institutions by virtue of their status, but others extend very widely - even, as above, to all freemen. Yet there is no attempt to justify these rights in terms of universal justice (or even natural law). The agreement made in Magna Carta (and kept for only a few years) was about the political structure of the land: the rights that are given to the many are chiefly intended to prevent crimes against the privileged few.

England, the source of this first written rights statement, is today one of the few countries without a statement of constitutionally guaranteed rights. Depending on one's point of view, this is either ironic or refreshing.

England was also responsible for the first law to be called a Bill of Rights (1689). Giving the terms of the contract between Parliament and William and Mary of Orange, its main purpose was to declare illegal practices like royal interference in parliamentary matters and the law - practices that James II had been repeated guilty of. Again, the Bill of Rights was specific about rights and entitlements on the basis of status.

As discussed in the earlier review of contractarian moral theories, philosophical discussion of universal human rights really got off the ground in the seventeenth century with Grotius and Hobbes identifying a right to self-government, which they and others subsequently developed, via the concept of social contract, into lists of political rights. At the same time, Hobbsian ideas were developed in jurisprudence. From 1765 to 1769, Sir William Blackmore published four volumes of his Commentaries on the Laws of England, that was used as the foundation for all legal education in Britain, its colonies, and the United States, for the next hundred years. He wrote that the great precept of nature is 'that man shall pursue his own true and substantial happiness'. Rights derive from the social contract made to enable this, and laws exist to protect those rights universally, deriving their force, validity and authority from the great precept. Thus, in law, as in philosophy, the eighteenth century Enlightenment brought about the great shift in understanding: some rights are natural and thus universal.

Meanwhile, the early egoist orientation of contractarianism was soon augmented (if not replaced) by an orientation based on universal reason, and therefore, through Kant, on universal morality. It became possible to argue for rights on several levels: from self-interest, through reason, to the dignity and worth of all humanity. Thus, rights-talk became the fundamental expression of social morality in the late 1700s, and now those rights were theoretically held by all - or at least, by all men - or at least, by all free men. So connected were philosophers and politicians at that time, that this theoretical discussion played directly into ideas about government by people who had the power to act. This was true in both America and France, where the aristocracy was well versed in contemporary philosophy, providing them with the tools to make moral claims as part of revolutionary statements.

So the Enlightenment transformed rights talk in two fundamental ways: now rights applied to everyone, and rights were moral rights. This rejuvenated rights talk, seized on by politicians, began to appear in decisive documents at the end of the eighteen century:

Section 1. That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

Virginia Constitutional Convention on June 12, 1776

We hold these truths to be self-evident; that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.

United States of America in Congress, July 4, 1776

Declaration of Independence

DECLARATION OF THE RIGHTS OF MAN AND OF THE CITIZEN

Articles:

1 Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good.

2 The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.

National Assembly of France, August 26, 1789

Constitution of the United States

Bill of Rights

1st Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

2nd Amendment

A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Approved by the United States in Congress, and by the 13 states, 1788 - 1939

The political importance of these documents was and is immense. Thereafter rights statements came to be the principal form of the expression of political ethics. There are numerous examples of this, particularly in the political and legal discourse of the United States. I will cite just one: the 'Declaration of Sentiments' drawn up by Lucretia Mott, Martha C. Wright , Elizabeth Cady Stanton, and Mary Ann McClintock for the Seneca Falls Women's Rights convention in 1848.

We hold these truths to be self-evident: that all men and women 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.

But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their duty to throw off such government and to provide new guards for their future security. Such has been the patient sufferance of the women under this government, and such is now the necessity which constrains them to demand the equal station to which they are entitled.

Late twentieth-century sensibilities are so suffused with a sense of the ironic, that it is hard to get beyond the idea that this is a parody. In one sense, of course, it is. But the appropriation of the Declaration of Independence for women's rights (and later for racial equality) was, at the time, a respectful acknowledgement of the power and rightness of the original document, and only secondarily a critique of its exclusiveness. The iconic status of the Declaration of Independence was such that the early feminists could rely not only on people recognizing it, but also gain leverage from its rights orientation.

In the present century, many countries have adopted statements of rights as part of their constitutions. These statements have much in common. Yet there are also differences of emphasis that reflect, in their choice of negative and positive rights, differences of politics. In general, politicians of the right prefer negative rights, while those of the left prefer positive rights. This tension is well illustrated in the United Nations Universal Declaration of Human Rights. It begins with general statements, then moves into negative rights, familiar from the classic western documents we have already seen:

UNIVERSAL DECLARATION OF HUMAN RIGHTS

(Adopted by UN General Assembly Resolution 217A (III) of 10 December 1948)

Article 1

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3

Everyone has the right to life, liberty and security of person.

Article 4

No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Later Articles, however, move towards the political left. The second half of the documents contains positive rights:

Article 24

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25

1. 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.

2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26

1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

3. Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27

1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

All the member states of the United Nations in 1948 signed on to the acceptance of all these rights. This represents a remarkable political compromise. On the other hand, the inclusion of so many rights, does undermine the intellectual cohesiveness of the declaration. MacIntyre, for example, wrote: 'In the United Nations declaration on human rights of 1949 what has since become the normal UN practice of not giving good reasons for any assertion whatsoever is followed with great rigor.'[24] This particular document has iconic significance, as discussed in Section 6. It is an open question as to what practical value it has had in world affairs.

Canada was among the countries that signed the Universal Declaration and therefore moved in 1960 to enact human rights legislation. This was superceded in 1982 with the repatriation of the constitution, and its rewriting to put the Charter of Rights and Freedoms at the head of Canadian law. This document displays the results of political compromise even more than the Universal Declaration. It includes articles dealing with linguistic balance in New Brunswick at the same constitutional level as the right to life, liberty and security of person. Perhaps more fundamentally, it contains an explicit statement limiting the range of rights to those which can be 'demonstrably justified in a free and democratic society'. Together with the 'notwithstanding' clause, this, in theory, could undermine the authority of the Charter. Yet in practice it seems that Canada has very quickly been converted from a British-style common-law system to a US-style constitutional legal system founded primarily on human rights.

The Canadian Charter of Rights and Freedoms

Part 1 of the Constitution Act, 1982

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

Guarantee of Rights and Freedoms

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Fundamental Freedoms

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

6 How influential are rights?

The question I seek to address in this section is an empirical one. It asks what power rights ideas have relative to other concepts (such as deontology and consequentialism)? I claim that rights are the public face of morality. I need to show that lists of rights, such as those included in section 5 are of first importance in political and social ethics. This is a falsifiable claim: if some other ethical framework could be shown to have greater importance, then my theory would fail. But I am fairly confident that this is not the case. I see few institutionally codified statements of deontology (even though rights and duty are coupled), or of utilitarianism. While virtue ethics may be institutionally codified in the scriptures of major religions, it is, on the admission of its advocates, fighting a rearguard battle. On the other hand, there is evidence of the dominance of rights thinking from many sources. I therefore provide the following selective summary of the way that rights are treated in public ethics.

1 Rights lists are self-justifying

Although we should beware of a circular argument that something is important just because it claims to be, we should note the very strong claims for rights within some legal and political documents. The Universal Declaration of Human Rights is a good example. The preamble begins:

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Here there is the positive claim that rights are the foundation of freedom, justice and peace, and the negative claim that barbarous acts are the result of disregarding rights. Thus the United Nations justified and enthroned their declaration, defining virtue and vice with reference to rights. Even if you agree with MacIntyre's disdain for the UN, you must also treat this statement as evidence of the way people were thinking about rights, and clearly, they gave them great importance.

Similarly, the 'Whereas' clauses of other rights statements, such as the Canadian Charter, attempt to link rights with fundamental values.

2 Rights statements are primary in legal and political argument

The importance of rights in law is evident in their enthronement in constitutional legislation. But their influence permeates legal thinking. An information booklet provided by the Government of Canada to explain the Charter of Rights and Freedoms, contains the following question and answer:

Are all of my rights contained in the Charter?

No. The Charter contains those rights and freedoms that Canadians believe are essential in a free and democratic country. They have been set out in the Constitution as a way of making sure that they are given the greatest protection possible under the law.

There are, however, many other laws that create rights. The federal government and the provincial and territorial governments all have laws that provide rights and freedoms: laws against discrimination in employment and accommodation, consumer protection laws, environmental laws and, in the area of criminal law, laws that give rights to witnesses, victims and persons accused of crimes, to name only a few.

Much of civil law is about the resolution of rights conflicts. Criminal law provides safeguards to accused people, couched in the form of rights. There is debate about the extent to which the rights of the accused override the rights of the victim, for example in questions about the victim's previous sexual history in rape cases. If someone attempted to discuss such issues in terms of duty, utility or virtue, they would likely be seen as irrelevant to the argument, if not insulting.

We have seen that rights statements can also be powerful in political argument: the rewriting of the US Declaration of Independence by Stanton et al was an effective (and often cited) action in the battle for female equality.

Special interest and lobby groups often hang their arguments on rights language. There is easily accessible evidence of this on the World Wide Web. The National Rifle Association of America (www.nra.com) hosts a prominent 'Second Amendment Library' where issues of gun control are argued in the context of the right to bear arms conferred by the US Bill of Rights. Amnesty International (www.amnesty.org) positions its fight against institutional cruelty in terms of human rights. Its slogan is 'Working to protect human rights worldwide'. Over the past year it has made much of the 50^th anniversary of the UN University Declaration on Human Rights.

3 Education on citizenship focuses on rights

Some countries try to educate their children and immigrants in what it means to be a part of that country[25]. As an example of this, the booklet provided to Canadian citizenship candidates contains the text of the Charter of Rights and Freedoms, together with an explanatory guide that notes: 'The Charter contains those rights and freedoms that Canadians believe are essential in a free and democratic country. They have been set out in the Constitution as a way of making sure that they are given the greatest protection possible under the law.' New citizens can also obtain a colourful poster on which the full text of the charter is displayed, illustrating the iconic signficance of the rights list.

The Newfoundland education network StemNET, includes a large web of teaching materials. By far the largest component for citizenship or moral education is the Newfoundland-Labrador Human Rights Association's information (http://www.stemnet.nf.ca/nlhra/). The clear implication is that children should engage with ethics through a high valuation of human rights.

4 The news media use rights language to present moral issues

The use of rights talk is endemic in the media. We can observe the precedence of rights thinking over other expressions of morality simply in the headlines used in radio, television and print media. Here are a selection of headlines taken from the (online) Canadian and US media on 3 December 1999.

· Serene Seattle faces rights abuse allegations

· Ottawa ready to aid Anglos [i.e. in achieving language rights in Quebec]

· Gun rights group sues mayors

· Human Rights must be central component of multilateral investment rules

The text of articles shows a similar emphasis. For example, coverage of the signing of a Child Labour Treaty at the World Trade Organisation meeting is peppered with references to 'Children's Rights'.

7 How valuable are rights?

From the evidence in Section 6, I conclude that the idea of rights has considerable social and political influence. It is an invalid inference from this that rights actually exist as moral concepts. Bentham and MacIntyre could, for example, agree about the extent of the influence, and complain that it simply adds to their dismay. Similarly, contractarians may feel that the power of rights thinking vindicates their analysis of the social contract (because of its practical importance), without necessarily relying on that power to validate their theory (that is, to show that it is true). Coming from a sentimentalist point of view, I do not have a vested interest in whether a higher-order theory about deal-making, duty, utility or virtue is validated or vindicated. It seems to me, by observation, that we must recognize that the moral vocabulary of politics, law and social action is rights-oriented. We can ask, empirically, whether this is a good thing.

How do we judge if living in a rights-oriented world is 'good'? As I stated earlier, sentimentalists are not relativists. Rather they see that human psychology is oriented towards certain values, and that human thinking about morality (e.g. by Aristotle, Kant and Bentham) may start from different premises, but often comes to similar conclusions. So it is fully consistent to call human cruelty bad, even without a complete definition of 'bad'. (Note that cruelty is not bad just because I say it is, a la Moore, but because there seems to be a lot of empirical evidence - including the conclusions of rival ethicists - that it is.) Now we can ask whether the existence and power of rights lists has diminished human cruelty.

This is a very difficult question to answer. I believe the answer is yes. I believe progress has been made in human societal morality, and that part of the credit can go to the codification of some moral precepts in lists of rights. The explicit statement of rights has made it easy to argue that those rights should be extended to everyone. The release of individual political prisoners as sought by Amnesty International is a good thing, and again, rights thinking is motivational. The existence of the Universal Declaration of Human Rights is a matter for hope, a practical tool in ethical diplomacy and an inspiration to enlarge our sentiments. But to justify these beliefs would demand a much longer philosophical and historical analysis (especially in the context of a course where Foucault featured prominently!). I want to state clearly though that I think such a justification can be done: I'm not merely making a statement of blind faith.

But rights thinking has problems too.

In the light of the iconic power of rights statements, we should be especially vigilant for cases where rights thinking has misled people. There are several potential problems with rights, simply on account of their high status: In contentious cases, someone must arbitrate between rights. Because constitutional rights are both unordered and binding, such an arbitration has cascading implications, so it is given, in modern political states, to people who are supposed to be particular good at judging and forseeing the ramifications of their decisions - that is, to judges. Judges are notoriously fallible, yet the more they believe that the foundations of their society are rights, the more willing they are to impose their fallibility on succeeding generations. Judges buy in to the idea that rights are their fundamental guide, and all they are doing is interpretation. Although they must realize, they rarely admit, that rights are merely derivative, and in 'interpreting' they are really setting those rights within a higher-order moral system of their own.

The judiciary therefore controls not only the form but the substance of social morality by its interpretation and ordering of rights.

Should we be worried about this? I believe that we should. Appointments to the US Supreme Court are usually viewed as political - the question of whether a judge is liberal or conservative receives much attention in the media. This is not surprising, for the court has changed its mind several times, depending on its political balance (and depending on intellectual fashion). The problem in Canada is less one of political colour, and more one of power.

A famous example of a case where the Canadian Supreme Court has ruled on the basis of the Charter of Rights and Freedoms was R v. Smith, decided in 1987. The Narcotic Control Act, in force at that time, specified that the minimum penalty for anyone importing a narcotic into Canada would be seven years in jail. Lawyers for the defence argued that this amounted to cruel and unusual punishment and was therefore in violation of section 12 of the Charter ('12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.') The Court agreed and ruled that the law was of no force or effect according to section 52 of the Constitution Act, 1982.

What should have happened, if the political system had allowed it, was that through a balanced system of assessment (perhaps involving judges), the mandatory sentence for narcotics smuggling could be compared against typical sentences for other crimes, societal norms and expectations. Then, assuming seven years was found excessive, the legislature could have been asked to act on this particular imbalance with due speed. What actually happened is that the entire law was struck down, and the legislature had to work in haste to bring in reformed legislation. More importantly, the court ruled that the length of the sentence was 'cruel or unusual' and therefore reserved to itself the final judgement on sentencing norms. Now the judiciary already had considerable power in the sentencing of offenders. The right of the legislature to establish norms was a worthwhile balance of this power between different branches of government (and, indeed, an expression of the sovereignty of elected representatives to decide on fundamental questions about punishment[26]). This balance has now been abolished. By a contentious interpretation of a right the judiciary has managed to increase its power at the expense of the legislature[27].

I believe this is a real problem with the constitutional enthronement of rights and the constitutional power of the judiciary. But is it a problem with rights per se? Only inasmuch as it depends on their iconic status. What is required is scepticism not only towards our institutions (including the legislature and the supreme court), but also towards the concept that rights are morally supreme.

The other problem with rights' status is that we come to believe that they hold the key to all ethical questions. I do not mean that we can always find the right answer by consulting our list of rights. I mean that questions will be couched in rights terms, without proper regard for their ethical content.

For example, the use of recreational drugs is regulated by a shifting complex of laws that tradeoff personal autonomy with paternalism. Libertarians argue that laws against drugs infringe their fundamental rights, but moral conservatives (i.e. those less right wing than libertarians) say that the social consequences of drug law liberalization are real, whereas the right to dope is fiction. Ethical questions of the future will increasingly be of the same form as the recreational drugs question: what are the rights of the individual relative to the interests of society? It is becoming common to talk about community rights and suggest these balance individual rights, but the problem is really that of consequences versus duty. We need to see through the rights talk to the higher-order moral theories.

Decisions about genetic engineering are increasingly important: should we alter the human genome to achieve certain 'improvements'? Who decides what are improvements? How do we balance likely positive results against the risk of a large, unexpected, negative consequence? Unfortunately, in making practical decisions about genetic engineering, there is again the danger that we will become submerged in rights talk. Suppose it becomes possible to manipulate gene complexes in the embryo by medicine that has no side-effects on the mother. Suppose such a drug is developed that modifies human behaviour in a way generally thought to be beneficial - it removes the urge to cruelty for example. Who has a right to refuse the treatment for their embryo? Only because we are rights-oriented do we see the problem in these terms. Philosophers have wider views about these possible futures, but we may reach a crisis point where the public and politicians are so immersed in rights thinking that their ethical decision making is stymied.

Conclusion

In this paper, I have charted the development of rights thinking through historical documents. We have seen that the crucial shift from rights accruing by virtue of status to rights accruing by virtue of human personhood came during the 18^th century through philosophers like Hobbes and Locke, and politicians like Jefferson. What had previously been thought of in terms of checks to political power, now became associated with morality. These shifts in understanding were part of the Enlightenment - part of the intellectual revolution that MacIntyre accuses of fracturing ethics from its teleological root. Yet I have maintained that the dominance of rights thinking has by-and-large been a good thing. We must engage with it and be critical of the power that political rights thinking vests in the legal system, but we can be grateful for the concise codification of respect for persons that rights statements provide.