The Promise of Human Rights. Jamie Mayerfeld
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Imagine someone who combats FGC or domestic violence through education and who decides that, given the circumstances, her efforts will be most successful if undertaken without government participation or support. Surely she does not cease, by virtue of her preferred strategy, to be a human rights activist. We can emphasize the responsibility of governments to respect, protect, and promote human rights without claiming that this responsibility belongs to government alone. To reserve the term “human rights” for government’s responsibilities while using other language to designate the responsibilities of nonstate actors produces an unnecessary linguistic complication, one with the potential to sow moral misunderstanding.
I believe confusion also arises under the broader institutional conception of human rights. One danger of viewing human rights as claims against institutions but not individuals is that individual responsibility may be effaced. While the man who beats his wife may be an agent of patriarchy, he is also an individual who fails to respect the dignity of his victim. And certain harms are plausibly viewed as human rights violations even in the absence of institutional complicity. A beating is a beating whether delivered by a random stranger or a police officer: the wrongness of either act is ultimately based on the same set of reasons, an impermissible disregard for the status and interests of the victim.52 Thus classic rights thinkers like John Locke and Thomas Jefferson plausibly assumed that unaffiliated individuals can violate one another’s human rights outside an institutional setting (in a “state of nature”).
I suggest that the proper perspective for thinking about human rights is as individuals with responsibilities toward one another, on the assumption that institutions are an important but not the only means by which those responsibilities are honored or betrayed. (Of course, many interpersonal responsibilities, like many institutional responsibilities, do not involve human rights.) Institutions are human creations, dependent on human choices, whether acknowledged or not. The values that should govern institutions cannot be divorced from those that properly govern individuals in their relations to one another, and we ought to preserve a flexible attitude regarding which mix of institutional and noninstitutional approaches is best suited to protecting individuals from grave injuries and indignities. The risk of an institutional conception of human rights is a kind of alienation, in which institutions are seen as leading an existence separate from that of individuals and are invested with a kind of moral responsibility from which individuals feel personally exempt. A wiser approach is one in which individuals feel simultaneously responsible for their institutional and personal choices. An inclusive conception that broadens responsibility for human rights directs our attention to more diverse sources of harm; it helps avoid the backlash that can arise when individuals harmed by entities that are not institutions feel that their experience is left out of the language of human rights; and it gives us a richer understanding of the contributions that civil society can make to the protection of human rights, as a watchdog of government and potential replacement for some of its functions as well as an agent of social change outside government and the institutional sphere more broadly conceived. The inclusive conception I have defended here bears affinities to the theory of “concurrent responsibility” for human rights to be explored later in this book.
The Right to Have Rights
Human rights form an organized whole. They are related to each other in a particular way, and their mutual relations form a particular structure, or architecture, of internal support. Some rights take the form of primary entitlements. They include, among others, life, freedom from torture, freedom from assault, adequate nutrition and health care, education, and freedom of religion. A second category of rights exists to protect primary entitlements. Consider the right to a fair trial. The primary entitlement at stake is the presumption of innocence: the right of innocent individuals not to be imprisoned, fined, or otherwise punished. The elements of the fair trial—publicity, the right to counsel, the right to summon witnesses, cross-examination of witnesses, no coerced confessions, possibility of appeal, the reasonable doubt rule—are all designed to save innocent individuals from erroneous convictions, even at the price of letting some guilty people go free.53
The redundant character of these protections may try the patience of some citizens, but their very redundancy is integral to the idea of due process. A large package of overlapping protections is needed because any smaller package could fail. It is a crucial feature of this arrangement that higher-level protections improve the effectiveness of lower-level protections. Police may be trained to respect the due process rights of criminal suspects, but even so they are less likely to infringe these rights when they know that suspects have competent counsel, enjoy a right to habeas corpus, and can appeal convictions. Similarly, public officials are less likely to abuse their power when they must anticipate the judgment of a free press and an independent legislature.
Some rights function as primary entitlements and instrumental protections simultaneously. Liberty is one such right, as Locke emphasized in the Second Treatise of Government. It is both valuable in itself and indispensable to other goods; nothing valuable is secure, not even our lives, when freedom is withheld.54 Examples can be multiplied. Education, among its many benefits, teaches us awareness of our rights, and gives us resources to defend them. A right to economic subsistence, valuable in itself, arms individuals against blackmail used to perpetuate abuse (such as domestic violence against women and servants). Freedom of speech is both a primary entitlement and a means of protesting the denial of other rights.
If human rights include both primary entitlements and their protections, they also include protections of those protections, and protections of human rights generally. A series of outer walls is erected to minimize the danger of erosion or attack. The logic of mutually reinforcing supports is well displayed in the Universal Declaration of Human Rights. “Everyone has the right to recognition everywhere as a person before the law” (art. 6) and to the “equal protection of the law” (art. 7), “to equal protection against any discrimination in violation of this Declaration” (art. 7), “to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law” (art. 8), and “to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations” (art. 10). These protections, though they may sound arid and legalistic, prove indispensable when fundamental entitlements are threatened.
It is significant that many protections of rights are themselves counted as human rights, not just as means to the fulfillment of human rights. To leave fundamental entitlements without protection is to leave persons exposed and thus to harm their dignity. A falsely accused person who is denied a fair trial but is still acquitted—say, because of luck, or a sympathetic judge, or friends helping behind the scenes—is not treated with the dignity she deserves, because she is denied the fully panoply of protections that is her due; her safety, preserved for now, remains contingent. We are entitled not only to the enjoyment of our rights, but to their secure enjoyment. We have a right to take our rights for granted.
The ideal posited here is independence, where independence means not having to fight, scheme, barter, or plead for one’s rights. Rejected, obviously, is a vision of extreme self-reliance, in which rights themselves must be achieved through struggle. Struggle, of course, is built into any society that honors human rights, since people face the stress of making their own choices in life, and must inevitably compete for scarce prizes and positions. But human rights are not something to be earned; they are not a reward for superior virtue, fortitude, and pluck. The “survival of the fittest” is foreign to the idea of human rights, its entry into rights discourse a sure sign that the discourse has been corrupted. Human rights are anchored by “the right to have rights,” as Hannah Arendt correctly insisted, not the right to seek rights.55 That is why rights include the protections of our rights.
Why Human Rights Require International Protections
Human rights are both a moral and a political concept. As a moral concept, they imply a set of moral permissions for oneself and duties for others. But among the duties owed one by others is the duty to organize or coordinate their behavior in suitably helpful ways. Human rights imply the need for certain kinds of social institutions, and that is why they are a political, not just a moral, concept. This point has been well understood