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What's Wrong with "Human Rights"
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Some god-terms that issue from the media, and which I had the misfortune of hearing incessantly as an academic, make me wince as soon as they come out of someone’s mouth. Among these particularly obnoxious terms are “social justice,” “fairness,” and “sensitivity,” all of which drip with righteousness and dishonesty.

The term or concept that lately has been causing me the most visceral pain, however, is “human right.” The pain became excruciating last week, when I heard Fox News commentator Juan Williams insist that gay marriage is a human right. If Williams had his way, the Supreme Court would impose recognition of this arrangement on every hamlet in this country. That’s because he thinks it’s “fair” and in any case required by the equal protection clause of the Fourteenth Amendment. I’ve no idea how the Fourteenth Amendment can require the imposition of a marital practice that differs from how marriage was understood since the beginnings of human societies and up until a few years ago in this country. It is possible to see why the Fourteenth Amendment might be invoked to uphold the right of every American taxpayer, whatever his color, to use the public facilities he or she pays for. But how can it require, except by an act of judicial usurpation, that all Americans be forced to recognize as marriage a cohabitation arrangement between people of the same sex. Supposedly this entails a right that must be equally protected. Right to what? Presumably of anything that those involved decide to call marriage and then oblige everyone else, on pain of punishment, to accept as such.

What happens, however, if those who wish to experiment with new forms of marriage decide that it would be a good idea to practice incest? Does that too become a right protected by the Fourteenth Amendment? What about group marriage, a practice that’s already being tried in Holland? Is that too protected by our constitution, according to Juan Williams? The answer is that incest and group marriages may be entitled to legal protection against discriminators, if Williams decides to characterize them as human rights. What the hell—two more rights added to the list really won’t muddle the term “human rights” any more than it’s already been muddled. And in fact the term has now been reduced to a rhetorical trope that is meant to impress the listener with the moral seriousness of the person who pronounces it.

ORDER IT NOW

My objection to the term is not based on moral relativism, since I don’t pretend to be a moral agnostic. I could think of at least one right that all people should be entitled to and which government should provide: it’s Thomas Hobbes’s single example of a natural right, which is to be protected by government against violent death. But who believes in what rights is not the point here. I am arguing against the use of human rights bombast whenever some individual, institution, or state wishes to express a political preference or a program of social reconstruction. Just make your arguments and let the listener decide. Further, I don’t object to listening to moral arguments against societies that do horrible things. Mention what the leaders of these societies do and then leave it to others to decide whether your indictment is correct. Saying that what you deplore violates human rights fills space with noise without contributing anything substantive to human knowledge. For example, if someone shows me that the Taliban stones women to death if they’re seen talking to young men to whom they’re not married, that’s a sufficient indictment. In no way would the speaker be strengthening his brief by adding that the Taliban “violates human rights.”

I would also make a traditionalist case against human-rights language. Whereas most of us in the same society up until a few decades ago could have agreed on what actions were right and wrong, human rights are more subject to change than traditional moral verities. Their validity depends on political and cultural winds; and it is foolish to believe that one can bridge the breakdown of moral or social consensus throughout the Western world by resorting to a new universal ethic based on “human rights” or “democratic values.” There are sharp and even growing differences in our society about fundamental behavioral questions, and appeals to supposedly universal rights language will not likely heal these divisions. Significantly, both those who favor and those who oppose the right to abort a fetus shower us equally with human-rights rhetoric. That practice settles nothing of importance, except for allowing the speakers to feel good about their cause and about themselves for upholding it.

(Republished from The American Conservative by permission of author or representative)
 
• Category: Ideology • Tags: Human Rights 
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  1. Yeah, I object to human rights too. I think that drone ought to be sent to your home Mr. Gottfried and flatten it and every inhabitant in it just because I felt like it. Damn you and your laws and your society and beliefs. Whatever, I don’t care. Destruction ought to be rained down upon you because I felt like it and you’re annoying and make me feel uncomfortable.

    Who needs human rights, least of all you, anyways?

    Am I right?

  2. Some time ago Daniel Larison mentioned a book by Samuel Moyn “The last utopia: human rights in history” which I subsequently read and found rather interesting. Moyn’s main thesis is that human rights as currently understood only really emerged in the 1970s so are a product of the very recent past. I’m not qualified to judge whether this is true but in any case human rights today seems to be a ill-defined concept with extremely shallow intellectual foundations so their scope is constantly enlargened by “progressive” activists and their sympathizers in judiciaries. They are the perfect instrument for left-wing social engineering and therefore should be opposed by any conservative.

  3. Evan says:

    It’s hard for me to place my bet on restoration of bourgeois morality backed by strong nation-states. It’s easier for me to imagine–grandiose though the suggestion may seem–that traditional, archaic morality will have to re-emerge in the levelled post-bourgeois setting established by imperious univeralists. In other words, it’s back to the wilderness for us, and the kings and strong-men return.

  4. Anonymous • Disclaimer says:

    Underlying this notion of human rights as used by “progressives” is the idea that there is no human nature, nothing given. Rather, all is infinitely reshapeable, malleable, subject to human wishes. Up to perhaps half a century or 70 years ago, there was at least the residual historical and sentimental attachment to more ancient ideas of what human nature included. But once we’ve dispatched this remnant, you’re left with “whatever you want it to be” as the answer to the question, “what exactly human beings are.”

    This stems from the abandonment of the classical and medieval formal and final cause in modern science, as in the poem that prefaces Newton’s Principia Mathematica. Once there’s no possible knowledge of formal or final causes (or of anything’s –including human’s–whatness or whyness, to put it more colloquially) then all you can know is mass, extension, speed: those aspects of reality that are susceptible to description through number and mathematical formulae.

    If this mathematical abstraction of reality is all you can know, all else ultimately will become up for grabs; and that’s what’s happening now. We’re just on the final stage of what’s been occuring since the sixteenth century.

  5. Anonymous • Disclaimer says:

    I think you fall into the trap of your own argument. Slavery was considered morally acceptable for the majority of humanity’s time on earth and it wasn’t until a small sliver of that time frame that humanity became enlightened enough to move past this (Mali and other countries not withstanding).

    To use the same moral argument against same-sex marriage, of which moral opposition for thousands of years was grounded in the same religious principals which also allowed for slavery is why your argument doesn’t seem to hold any water.

    Social mores change over time, but real progress is finally being made which treats humans, whether they be disabled, racially different, or born with different sexual preferences on the same grounds because people are finally able to separate faith based beliefs from things that occur biologically within human beings.

    Remember, equal civil rights for African Americans is only a 50 year old practice in our country.

  6. Anonymous • Disclaimer says:

    “I’ve no idea how the Fourteenth Amendment can require the imposition of a marital practice that differs from how marriage was understood since the beginnings of human societies and up until a few years ago in this country. ”

    Overall, this is a great post, but surely Professor Gottfried is being a little disingenuous here. It’s because of this often useful concept called “logical inference”. As one discovers more truths, one can use them together with already-accepted propositions to find out things that were not obvious at the beginning.

    So if society decides that things like group or incestuous marriage (or something even worse) fit the definition, then the 14th Amendment presumably protects these too. So there is a legal right there.

    I think he should be more willing to adopt a “natural rights” way of talking about things like this this. The problem with “human rights” talk is that it confuses the issue between what is legal and what is natural or reasonable, when that is in some sense exactly the point at issue. As he points out, the phrase “human rights” is just being used as a rhetorical device to suggest that one’s opponents are being inhuman monsters. The abortion example at the end is a particularly good one — both sides spend all their time talking about fundamental human rights and so never need to respond to the worries of their evil, dehumanizing opponents.

  7. My other objection to “human rights” is that the phrase and associated rhetoric is used to justify wars of choice. Gaddhafi was a repentant dictator, until the three harpies, Clinton, Rice, and Power, decided he was a human rights violator and needed to be toppled.

    When someone accuses a foreign government of violating “human rights,” the question becomes, “Are you calling for sanctions or for war?”

    The same French Revolution that issued the “Declaration of the Right of Man” made liberal use of the guillotine to scientifically separate the heads of its opponents and heretics from their bodies.

  8. Evan says:

    @The Wet One

    Ah, yes–the global human rights regime is doing such a superb job of not drone-bombing innocents.

  9. Agreed 100% with Paul Gottfried. Human rights thinking has taken over completely, but we should still oppose it as best we can. At the least, never use that conceptual framework ourselves.

    I use a different example about human rights in marriage: Is it a human right for a man to marry up to four women at a time? If not, why not?

    To the commenter who suggested that opposing the whole concept of metaphysical human rights means accepting indiscriminate attacks on people: Try reading the article again.

  10. One thing I’ve noticed just lately is how far human rights law is from the vulgar notion of human rights – to the advantage of human rights law. Most people who are always appealing to human rights don’t realize just how considerate the law is to states who want to restrict so-called human rights.

    Many of the most important human rights are derogable – they can be suspended for reasons like state security. This includes, to take just one example, the right to due process: human rights law says that states can lock people up indefinitely without trial, if there’s a security justification for it. Also derogable, and highly restricted even in normal situations, is the “human right” to free assembly and non-violent protest. States can ban those under human rights law.

    Vulgar human-rights talk is one thing; international human rights law is quite another.

  11. Anonymous • Disclaimer says: • Website

    The problem occurs when people start believing that humans inherently have rights. We are given life from God, and if our “rights” go against His nature, then those aren’t really right at all.

  12. If you don’t like rights talk, may I suggest you find a country other than the United States? Because I don’t think there’s any getting away from it here, not since the founding.

  13. What of my human right to enjoy Belhaven Scottish Ale at a price that I can afford?

    And if others have a human right to health care, what of my human right not to become a doctor? At some point doesn’t society have to draft people into the medical profession in order for the right to health care to be real? Must I take to the hills in order to avoid becoming a dental technician against my will?

    It also strikes me as odd that those who proclaim human rights are also those most resistant to the proposition that such rights emanate from some source. From whence do such rights come?

  14. All so true. The real victims are those who have to live with the excruciating knowledge that not everyone is like them, and even worse, that the day has come when they can no longer compel people to pretend that they’re something they’re not. True freedom is the freedom to choose what I would choose. That’s all the rights any human needs.

  15. Nathan says:

    Mr. Gottfried: “they are endowed by their Creator with certain unalienable rights . . .” The unalienable rights doctrine is the basis for individual rights here and arguably anywhere in the world. Note that sometime later Mr. Madison, his fellow Virginian is forced by the likes of Patrick Henry to do a Bill of Rights set of amendments to the Constitution, something he was reluctant to do because he felt that enumerating rights automatically limited them. Leaving it at “unalienable” and among these “life liberty and the pursuit of happiness” allowed an almost unlimited view of rights as seen in terms of limited government.

    And we note in the Bill of Rights the basics rights, First, Second, Fourth, Fifth, Eighth, are all very much rights which keep voracious governments at bay. These rights if you will form the foundation do they not of any discussion of “human rights.” Torture? Eighth Amendment. The Fifth Amendment covers so many “human rights”. We could go on. If you don’t like that concept what part of the Bill of Rights do you discard/change? We can complain that definition has expanded to foolish extremes, that the right to a dwelling is far beyond what the Founders envisioned especially given Madison’s famous quote about benevolence spending. But still human rights remains, in the context of the unalienable rights doctrine, in the context of the Bill of Rights, both of which conservatives certainly see as universal, a valid construct.

  16. TomB says:

    Bravo, Nathan.

    I mean … *conservatives**against* the idea of having rights vis a vis the government/the mob?

  17. matt says:

    I have been amazed by how little a role the appeal to rights has played in the advancement of SSM. Activists banged the rights/equality drum for years, but it wasn’t until people could see SSM as a positive social good to be enjoyed by others they considered normal that the tide really turned. Cf Charles Murray. It was in fact a “just make your arguments and let the listener decide” dynamic: “just show me a believable picture of the way of life at stake and let me decide.”

    At this point, people like Williams can go back and dress up their (in my view, correct) opinions in high moral language, but that’s not a working part of the argument.

  18. I was thinking of the Moyn book that the German Reader mentioned when I returned to this subject recently. Actually the rhetorical phrase goes back further in time than the 1970s, which is the period when began to rise to its present popularity. Carl Schmitt was railing against the application of Human Rights invented by the victors after World War Two, and the UN issued the first of its changing laundry list of “Human Rights” in 1948. I’ve no idea why someone should be allowed to bomb my house even if I challenge the tendentiously employed and/or tautological concept of HR. There are multiple positive laws prohibiting such behavior in Western societies; nor am I prevented from morally condemning brutal acts in the absence of this recent rhetorical or conceptual tool. Moral reasoning did not start in the 1970s or even in the 1940s.

  19. Anonymous • Disclaimer says:

    “that all Americans be forced to recognize as marriage a cohabitation arrangement between people of the same sex.”

    A court decision would force the government and the law to recognize the union between a same-sex couple. You on the other hand are not forced to do anything. If you wanted to, just pretend the law never passed

  20. The Founding Fathers believed in natural rights, but that doesn’t mean we should. The Bill of Rights stands on its own as positive law. That is, as Burke said in an English context, as “positive, recorded, hereditary title” – ours by inheritance, not by natural law.

    And speaking of which, Burke predicted our human-rights inflation two centuries ago. He foresaw “that vague speculative right” – what was called natural rights then and human rights now – being “scrambled for and torn to pieces by every wild, litigious spirit.”

  21. Nathan says:

    Mr. Gross: I get your point. But still sir what do we base our concept of “rights” today on? The unalienable rights doctrine, flawed though it may be to some (I’m not convinced it is) still is the foundation for all individual rights here and every place else. And I’m sorry I believe, personal warts aside that the Founders were the greatest group of political thinkers ever assembled together at any time in history. Who would you replace them with? Romney? Rubio? Newt? Sean? Rush? Mark? Any, all, none? Choosing between them as a group, and anyone today, I think I’ll go with them.

    Mr. Gottfried: Was HR invented by the victors after WWII? How were the horrors of Sobibor and Babi Yar supposed to be dealt with? To be sure the justice was flawed. Having Stalin’s representatives on any court was a travesty. And understanding Churchill’s role in the Bengal famine (Avery his secretary for India wrote in his diary that he was no different than Hitler) made his presence there questionable too. And Max Hastings in his book Bomber Command made it clear that moral issues were raised about area bombing. All conceded. But still we knew that the newly constituted governments in Japan and Germany were not going to do anything about the murderers among them. Some action in this case, was better than nothing? Make some statement of principle, especially that following orders was not a defense should set the stage for actors later, didn’t that have some merit?

    The holocaust was legal under German law. At the very least the international agreements that emerged from those trials stated clearly that actors could not rely on the laws of their own countries, that they had to make an individual determination of the legality of their actions. That alone made much of what happened at Nuremburg and Tokyo worthwhile? And in the end the people prosecuted HAD surrendered their unalieanble rights, had they not? Their due process rights were not materially violated were they?

    Flawed as perhaps those trials were perhaps I don’t see the Innocence Project taking on any of the people convicted.

  22. Aaron Gross,

    The Ninth Amendment goes beyond the enumerated rights of positive law to speak of other, unnamed, rights still retained, so I don’t think defining the bill of rights simply as positive law works.

  23. matt says:

    Do you find the notion of “natural law” equally tautological and tendentious?

  24. William Burns, good point. I should have excluded the Ninth Amendment, at least your interpretation of it, when I said the Bill of Rights doesn’t need any natural rights foundation. If you interpret that amendment allowing judges to rely on so-called natural rights, as opposed to natural law, then I see it as a bug, not a feature.

    I don’t believe in legal positivism and I don’t at all reject natural law. Positive law is just one of several kinds of law, all of them valid (and often conflicting).

    Nathan, we should base our concept of rights today on exactly what Burke said: ““positive, recorded, hereditary title.” That is, our constitutional inheritance from our Founding Fathers. I think that’s a much more solid basis on which to build than is natural/human rights.

    You asked whether I’d depend on some mental midgets that you listed, including Rush Limbaugh, Sean Hannity, and others. Of course not. But legal theory aside, I don’t think we’re doing all that badly with legal positivists like Antonin Scalia and the late Robert Bork.

  25. V says:

    I see some are faster writing comments than reading up to where the author refers to Hobbes and protection against violent death.

  26. Anonymous • Disclaimer says:

    The best part of this article is the clear recognition of the non-stop threat to liberties that accompany redefinition of a status enjoyed by individuals under civil law. Those who compare a new and asserted evolving and progressive moral view or “understanding” of marriage with the abolition of slavery in this country are intellectually and morally off-base and their argument invalid because such a comparison ignores the role that history plays in life and law and fails to recognize that slavery was a status almost universally forced by individuals on other individuals even where it was legally permissible.

    The key question here should be: In this country, with regard to issues involving “rights”, what is the essential reason our governments were instituted in the first place? The answer isn’t complex: our government weren’t instituted to grant rights to the citizens who founded them but to recognize the basic rights citizens enjoyed as those rights had been generally understood and to secure those rights by protecting them from intrusion and violation by the governments themselves. Thus, the federal “Bill of Rights” is accurately described not as a set of legal grants of rights to individuals but protection of individuals legally from governmental acts violating the basic rights that its citizens were understood to possess. So, I’ll accept redefinitions of a legal status such as marriage to include an individual of the same gender only after history has validated such status in society, something I don’t think will happen anytime soon because of the non-stop threat to liberties associated with redefining a matter such as marriage.

  27. Anonymous • Disclaimer says:

    Surely, liberals use the term “human rights” unreflectively and reflexively. But leftists actually hate the term and largely agree with this analysis. One example I’ve seen lately goes “housing is a human right!” Really? So when primitive human tribes emerged from the Neanderthals, their thought was, “gee, now that I’m a MAN and everything, I’m entitled by God or Nature to a shelter”? There’s no such thing as a “human right,” whether you’re left- or right-wing: rights are things people fight for and often die for, and only grudgingly do governments “secure” them (and often, don’t). Nothing is gained in discussions about rights but referring to them as “human” or “natural” rights….

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