The Declaration of 1789 had been proclaimed “in the presence and under the auspices of the Supreme Being.” Several of the Revolution’s leaders, most notably Robespierre, thought that a cult of “the Supreme Being” could and would substitute for Christian belief and practice. Only someone with little or no understanding of religion could have imagined that such a substitution would work.263 The problem festered for a decade until Bonaparte signed a concordat with Pope Pius VII in July, 1801.264 The Church lost its privileges but it was more recognizably a religious body.
The preamble of the Declaration says that one of its purposes is to “remind them [the people] continually of their rights and duties.” In some early drafts there was an attempt to list duties as well as rights.265 The final draft retained only one fleeting reference to duties. The Declaration does of course imply duties, such as paying of taxes (article fourteen). Nonetheless, the relation between a person’s right and someone or some group having a duty relative to that right is a central question for the very meaning of rights.
In 1793, a revision of the Declaration was made. The revision was twice as long as the original but it did not leave much trace in history. Its article twenty-one, however, has this remarkable statement about duties: “Public relief is a sacred debt. Society owes maintenance to unfortunate citizens, either procuring work for them or in providing the means of existence for those who are unable to labor.” If universal rights to life, liberty and security are to be actually achieved, some such provision of this “sacred debt” of society is needed, in whatever way a society might fulfill its obligation.
The two terms most associated with the Declaration of the Rights of Man and of the Citizen are equality and liberty. Only the second is proclaimed to be a right. Equality is stated as a presupposition (although in the 1793 revision it replaced resistance to oppression as a right). The position is one similar to the Declaration of Independence’s statement that “all men are created equal.” In the French Declaration the equality is immediately joined to rights; Jefferson in a follow-up sentence specifies that the equality is in reference to a certain group of rights. Obviously humans are not born equal in many respects such as size, talents or sex.
Slavery was still very much an issue at the time of the French Declaration. To their credit, the French moved soon afterward to condemn slavery while the United States perpetuated this clear violation of an equality of rights. The French did fail to confront the issue of equal rights for women. The word man in the title of the Declaration was not an assumption that the word could include women; women were explicitly excluded. The only prominent male writer who took on the issue was Jean Condorcet who posed the obvious question about the authors of the Declaration: “Have they not all violated the principle of equality of rights by quietly depriving half of mankind of the right to participate in the formation of laws, by excluding women from the rights of citizenship?”266
Condorcet’s advocacy of rights for women was met with derision. That was not so bad a fate as was met by Olympe de Gouges who produced a Declaration of the Rights of Women in 1791. She went to the guillotine in 1793, condemned as a counterrevolutionary and denounced as an “unnatural” woman.267 Pierre Gaspard Chaumette said before the General Council of the City Government of Paris in 1793: “It is shocking, it is contrary to all the laws of nature for a woman to make herself a man.”268 That would indeed be shocking if that were what women were trying to do. What they seemed to be trying to do was to play an important part in the revolution in roles that were equal to those of men.
After Louis Prudhomme set forth the “natural domesticity” of women, he still demanded that they “rally from door to door and march toward city hall.” His explanation for this inconsistency was: “Once the country is purged of all these hired brigands…we will see you return to your dwellings to take up once again the accustomed yoke of domestic duties.”269 Nature’s laws could apparently be suspended while women were needed at the front.
These writers and others believed without doubt that nature or natural law was obvious when it came to the differences between men and women. Rousseau was mistaken in the fixed characteristics he assigned to womanhood but at least he did something interesting with the relation between the sexes instead of just saying women are inferior.270 In the following chapter, I trace Rousseau’s influence on the woman’s movement of the nineteenth century.
In the Wake of 1789
William Stuntz, asserts that the French Declaration was the mirror image of the U.S. Bill of Rights. In comparing the two, he finds that the Bill of Rights was at fault because it is concerned only with procedure. “In the [French] Declaration, procedure is governed lightly, and more wisely than in Madison’s document. Substantive law is seriously contained – or would be, had the Declaration been given binding effect.”271 His last phrase is obviously crucial: the difficulty of translating the Declaration to a constitution that could guarantee that liberty would not lead to chaos.
The French Declaration was followed by one attempt after another to establish a working constitution. The Declaration of the Rights of Man and of the Citizen was made a preamble to the Constitution of 1791 but it is mostly the preamble that is remembered. While the Constitution of 1793 was not given a chance to work, the Constitution of 1795 did restore order after the bloodiest period of the Revolution.272
An indispensable element for the success of a constitution is improvement in education. At the beginning of the Revolution only half of the population spoke French; the urban center did not have the support of the outlying provinces. The twenty-second article of the Constitution of 1793 contained the remarkable assertion: “Education is needed by all. Society ought to favor with all its power the advancement of the public reason and to put education at the door of every citizen.” Unfortunately, that grand project was hampered by the dislocations of violence. In 1789 there were 50,000 students in colleges; in 1799 there were no more than 14,000. Basic literacy that was 37% at the beginning of the Revolution fell to 30% by 1815.273
Despite the pronouncements of equality, then, not all citizens were equal in relation to the law. The Constitution of 1791 divided the citizenry into active and passive citizens. Active citizens were defined as men over twenty-five who could pay the equivalent of three days labor in taxes; they chose electors who were then voted for by men who could pay a tax that was equivalent to ten days labor. The legislature was thus elected by only a small fraction of the population. In introducing the Constitution of 1795, Boisy d’Anglas said: “A country governed by non-proprietors is in a state of nature.”274
The propertied class controlled the electoral process but could not control the waves of the revolution. When the Jacobins set up an “insurrectionary commune” in August of 1792, they declared that “when the people place themselves in a state of insurrection, they withdraw all power from other authorities and assume it themselves.”275 It is difficult to fathom the savagery that took one leader after another to his execution.
The guillotine was introduced as a humane form of killing, guaranteed to make heads “fly off in the twinkling of an eye.” In the Terror of 1793 as many as 17,000 went to their deaths because the Committee on Public Safety found those executions necessary.276 The guillotine produced a stream of blood in the middle of Paris, a development that did not deter thousands of citizens regularly gathering to view what J.A.B. Amar called the “red Mass” performed on the “great altar” of the “holy guillotine.”277
There was no head of government. There was a relentless attack by each man on his opponents before they could attack him. “Every leader and every group took the risk of extending the Revolution in order to eliminate all competitors instead of uniting with them to build new national institutions.”278 The attempt to eliminate all intermediaries between power and the sovereignty of the people produced an obsession with eliminating a feudal order but also blindness to what the past could teach.
Edmund Burke’s criticism in 1790 proved to have some validity as the French Revolution unfolded. Burke had warned that if the present is completely unmoored from the past, disorder would be the result. The partnership of society, he argued, is “a partnership not only between those who are living but between those who are living, those who are dead, and those who are to be born.”279 The English Declaration of Rights in 1689, according to Burke, was “an act for declaring the rights and liberties of the subject, and for settling the succession of the crown.” There was no suggestion “to choose our own governors.” Burke has an extended praise of “prejudice,” which he says “engages the mind in a steady course of wisdom and virtue.” 280 Burke’s defense of “prejudice” as meaning a respect for the judgments of the past would not triumph.281 But a need for a partnership between the unborn, the living, and the dead is still worth pondering.
Histories of human rights often take the Declaration of the Rights of Man and of the Citizen as the touchstone for the idea of human rights despite the fact that eighteenth-century writers and speakers referred to “natural rights.” Many contemporary writers seem to accept natural rights even while they resist the idea that such rights are based on (human) nature or natural law. It is possible that human nature and natural law have meanings that are worth considering not as the basis of human rights but as a contribution to human tradition on which to base human rights. One need not embrace “natural law” as one’s own in order to recognize that it may be a helpful way for some people at some time to find a basis for human rights.
The case is even clearer for religion as an unavoidable part of human tradition. Long before the Declaration and the Revolution, leaders of the Enlightenment had launched an attack on the Roman Catholic Church as the enemy of progress. The Roman Catholic Church may have deserved most of the criticism but religion is not equivalent to French clerics of the eighteenth century and to a foreign head of state called the pope. The philosophes were forced to try to invent a new religion but it was a more difficult task than they had realized. A festival of the Supreme Being found few supporters, and installing the Goddess of Reason in the Cathedral of Notre Dame fooled no one. Eventually, the leaders of the Revolution had to admit that religious tradition could not be either eliminated or invented by decree.
If human rights are distinguished from natural rights then one is not forced either to attack religion as an enemy of human rights or to accept religion as the basis of human rights. Religions are a fact of history. A human tradition requires not a religion but a plurality of religions. The way to avoid the excesses of any one religion is through a convergence of traditional religions. A dialogue among religions will not lead to agreement on all points but a mark of human tradition is a continuing debate over what constitutes the nature of the human, and what is the proper relation between human- nature and nonhuman natures.
Chapter 3: The Twentieth Century and Human Rights
The focus of this chapter is the decade of the 1940s, the time in which the term human rights was given a stamp that is still with us. The 1940s contain a series of extraordinary events that had the effect of giving meaning to “human rights”; they also placed restrictions on that meaning. The period under consideration starts with a modest document called the Atlantic Charter and finishes with the beginning of the Cold War. In between was the major event called World War II.
An understanding of the events of this decade requires some looking back to earlier talk about rights as well as what happened in the decades after the 1940s. The history of “rights” before 1940 is subject to very diverse interpretations but there is a rich set of data leading to the relevant events of that decade. The events since 1950 are definite but open- ended. It is possible that the world is still at an early stage of finding the proper nature of and effective means for achieving human rights.
The authors of the Universal Declaration of Human Rights began their reflection on rights from their understanding of the eighteenth-century meaning of natural rights, a meaning which had been narrowed during the nineteenth century. The eighteenth-century authors might have been dismayed that their idea of rights became associated with one economic system. In that system, the purpose of government was to guarantee unfettered economic activity. The rights of man were interpreted as “political” in contrast to “economic,” although rights to life, liberty, security or the pursuit of happiness would seem to have an economic dimension as well as a political meaning.
Throughout most of the nineteenth century, liberalism meant the protection of individual rights and a suspicion of governmental power.282 It was not until late in the nineteenth century that liberal thinkers began to recognize that the powerful business corporations might be a bigger threat to personal freedom than government was. Liberal reformers had to reverse field and call upon government to protect the well-being of vulnerable individuals. The term social came to the United States from Europe and became the watchword of progressive reform. The energies of the progressive movement were largely spent by 1918 although Franklin Roosevelt would provide a brief revival.283
The progressive reformers did not invoke “the natural rights of man” as the basis of social reform. Rights language, preeminently the right to property, was seized on by their opponents.284 Business and government leaders could quote John Locke that “the great and chief end of men’s uniting in commonwealths and putting themselves under government is the preservation of their property.”285 Talk of natural rights had almost disappeared in the nineteenth century and individuals looked to positive laws of society for protection. “Society” as the source of rights was the nineteenth-century’s replacement for nature. However, there was a danger of society submerging the individual in what is “useful” to society.
Even John Stuart Mill, champion of liberty and the sovereignty of the individual, qualified the affirmation of liberty as applying only to human beings in “the maturity of their faculties” and in “advanced societies.”286 Consistent with these restrictions on liberty, Mill rejected the idea of natural rights. The individual was free to pursue the good of society. “Utility,” wrote Mill, “is the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded in the permanent interests of man as a progressive being.”287 There has been debate whether in this quotation Mill wrote “man” or “a man,” a difference that is considerable. The “interests of a man” would have a more individualistic meaning and be supportive of individual rights. The “interests of man” would give precedence to society over the individual. Most likely a printer’s error added the letter a; early editions in England and the United States have man.288 The interests of society take precedence.
Mill worked assiduously to reconcile the individual and the interests of man. He tried to formulate a principle of “utility” that would do justice to the liberty of the individual. He disagreed with Herbert Spenser about deducing ethics from “the laws of life and conditions of existence.”289 He opposed the idea of “natural rights.” However he recognized “the claim we have on our fellow creatures to join in making safe for us the very groundwork of our existence” and says the claim “assumes the character of absoluteness, apparent infinity, incommensurability with all other considerations.”290 Based on what Mill calls the “consilience” of human nature and empirical evidence, he might have supported “human rights,” at least at such time when, as he says, we have stigmatized as unjust “the aristocracies of colour, race and sex.”291
Karl Marx also rejected the idea of natural rights which he thought to be a cover-up of the clash between the rich and the poor. While Marx was critical of the French Revolution, he called for the completion of the revolution that would abolish private property and religion.292 The Declaration of the Rights of Man and of the Citizen had located property on the side of (universal) man rather than under the control of citizens in the political community
In Marx’s view the “rights of man” were an endorsement of the isolated individual and the protection of his property. The “rights of the citizen” were reduced to a mere means in support of the propertied class. The course of the French Revolution made the “rights of man” vulnerable to Marx’s criticism on behalf of flesh and blood citizens. Marx did not call for adding “welfare rights to liberty rights” but for economic revolution.
The United States in its Declaration of Independence had given less prominence to a right of property and did not have a wide split between the propertied class and everyone else. Or at least it was assumed that by hard work anyone could acquire property. “Political rights” were interpreted to mean procedures to limit government’s interference in the individual’s life while the individual pursued his happiness through the acquiring of property. But already by the 1790s liberty had taken on the meaning of a right to accumulate property.293
The idea of a human right would have to include political and economic concerns by being an intrinsic element of all rights. Instead of the rights of the citizen being a means to support the rights of man, the concept of human rights nearly reverses the relation. Human rights are the support of the rights of the citizen who is a political, economic, social, religious being. The political community of the nation should in turn protect human rights and provide help for their realization where and when appropriate.
Marx included the economic and political within the category of the “social,” and trusted in a “social revolution.” That continues to be a common way of describing the worldwide struggle against the oppression of the vulnerable, especially the poor. Given the long history of “social” and especially its prominence in the nineteenth century as the opposite of individual, it is unlikely that “social” can escape being part of the unhelpful dichotomies which it is employed to overcome.294
Marxism became known as socialism, a religious, philosophical, moral, and political movement under the umbrella of a complicated economic theory. Marx succeeded in getting both friend and foe to call his theory “scientific socialism” in contrast to all the other socialisms of the nineteenth century which he dismissed or ridiculed.295 The corruption and finally the collapse of the Soviet empire severely damaged the hope for a revolution that would get at the roots of the gaping inequalities between nations and within nations.
In the United States, the brandishing of the term socialistic is enough to block even minor economic reforms. Ironically, however, the right wing in the United States stole the word “social” from the left in the 1980s and gave concrete meaning to the word. The common examples now of “social issues” in the United States are abortion, homosexuality and prayer in the public school. The left wing does not seem much aware of the fact that its treasured term has been stolen.
Not surprisingly, Karl Marx was caught up in some of the problem from which he was trying to extricate the human race. Similar to Sigmund Freud, Marx was determined to provide a “scientific” account of history instead of being content with his criticism of the “rights of man” and with shedding some light on the next steps toward “human emancipation.” The eighteenth-century declarations of freedom and equality for all men were deficient but the hope that every human being should have some fundamental rights needed to be cultivated in the nineteenth century and still needs to be encouraged in the twenty-first century.296
A contemporary author writes that “one could argue that Marx was critical of human rights because they were not human enough and their entitlements were not equally shared.”297 The author’s helpful point would be clearer if he distinguished between natural rights and human rights. Marx was not critical of human rights but of the “rights of man” which he thought applied to an abstraction. Those rights were not human enough for some of the reasons that Marx identified and for other reasons that we are still identifying.
The Emergence of “Human Rights”
The decade of the 1940s is the period in which “human rights” took on definition. The decade was dominated by World War II and it is often assumed that the United Nations’ Declaration of Human Rights was a direct response to the War (or more specifically to the Holocaust), but its prescriptions are only indirectly related to the War.
The coining of the term human rights represented an attempt to address universal problems with a universal instrument. The first prominent use of the term human rights was by two Human Rights Leagues in 1933. Subsequently, Herbert Hoover criticized Roosevelt’s New Deal for interfering with human rights. From the opposite end of the political spectrum, socialists criticized Roosevelt for trampling on the human rights of workers.298 The United States Supreme Court used the term human rights in six of its decisions during the 1940s; the uses more than doubled in each of the three decades that followed.299
From the many events and forces that led up to the Universal Declaration of Human Rights in 1948, I will comment on three: the Atlantic Charter, the Nuremberg Trials, and the Charter of the United Nations. I will also describe the process which lead up to the UN Charter, including discussion of a preliminary draft of the Charter at Dumbarton Oaks in 1944, the criticism of that document, and finally the approval of the Charter at San Francisco in 1945.
Atlantic Charter. A brief document – actually a telegram – has the imposing name of the Atlantic Charter. It was the product of a meeting between Franklin Roosevelt and Winston Churchill in August, 1941. From Churchill’s side, the meeting was an effort to get United States support for England’s conflict with Germany. Churchill actually left before the document was complete so that Roosevelt signed for both of them. From the president’s perspective the Charter was a universalizing of the theme in his 1941 State of the Union Address. Roosevelt’s “New Deal for the World” was the proclamation of the four freedoms which every human being should have. The four freedoms listed in Roosevelt’s address were freedom of speech and freedom of religion, freedom from fear and freedom from want.300