Constitutive Paradoxes of Human Rights: An Interpretation in History and Political Theory

• DOI: https://doi.org/10.1108/S1059-4337(2011)0000056005
• Published date: 03 August 2011
• Date: 03 August 2011
• Pages: 37-65
• Author: John R. Wallach

CONSTITUTIVE PARADOXES

OF HUMAN RIGHTS: AN

INTERPRETATION IN HISTORY

AND POLITICAL THEORY

John R. Wallach

ABSTRACT

Two paradoxes constitute the discourse of human rights. One concerns the

relationship between ‘‘the human’’ and ‘‘the political’’; the other invokes

the opposition between the universalist moral character of human rights

and the practical, particular context in which they become manifest.

This chapter argues how and why these paradoxes will not go away – a

good thing, too – over and against classical and contemporary writers who

have argued for the priority of one or the other. After elucidating the

powerful and enduring character of these paradoxes in history and

political theory, I argue that human rights discourse only makes sense in

terms of the arguably more primary discourses of democracy, political

virtue, and justice if it is to avoid being a deceptive, rhetorical cover for

dubious political practices.

Special Issue: Human Rights: New Possibilities/New Problems

Studies in Law, Politics, and Society, Volume 56, 37–65

Copyright r2011 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2011)0000056005

37

INTRODUCTION

Humans have not always had rights; nor have they always wanted them.

Rights are creations of moral philosophy and political power. Sometimes they

are asserted; sometimes they are fought for; sometimes they are taken for

granted. The practical association of rights with humanity (or human beings

generically understood) is a creation of the tumultuous seventeenth and

eighteenth centuries of Europe, when Hobbes, Locke, and Rousseau

identified ‘‘natural rights’’ as the foundation for the political rights of

legitimate governments.

1

Of more political significance for the idea of human

rights was its enunciation in three later historical moments, moments that also

signaled fundamental crises of political legitimation. The first was France’s

1789 Declaration of the Rights of Man and Citizen, in which human rights were

understood as the rights of the civilized (male) citizens of France. Yet the

potential of this moment fulfilled the pretensions of its name as a practical

injunction designed to better the condition of all human beings only in the

second moment, when the United Nations General Assembly unanimously

passed (48-0, with eight abstentions) the Universal Declaration of Human

Rights (UDHR) in December 1948.

2

This event was certainly in gestation for

centuries, but it was catalyzed by the desire for a new ethical discourse in a

world transformed by the horrific killings of millions of persons during the

First and particularly the Second World War. This universalized political idea

finally gained political traction after the end of the Cold War, when the

ideological politics and interpretive divides that separated NATO and

Warsaw Pact conceptions of human rights lost their moorings. From its

checkered, historical evolution, the idea of human rights is evidently a

historically and highly contingent, as well as politically contested, idea.

3

Yet many view ‘‘human rights’’ – as articulated by the French National

Assembly, Franklin Roosevelt,

4

or the United Nations General Assembly,

or elaborated in subsequent official, international documents – as a

substantive entity, a thing captured in discourse to be honored or violated,

a universal code for moral and political conduct or mask for Western

imperialists and capitalists.

5

But the prevailing presumption is that human

rights are neither contingent nor contested. If we are good moral and

political beings, we should do our level best to ‘‘realize’’ human rights

(Balfour & Cadava, 2004;Habermas, 2010;Power & Allison, 2000).

6

We

should take human rights discourse, as it were, ‘‘off the shelf’’ and use it as a

moral guide and template for political practice – in the words of the

Samantha Power (journalist, human rights policy-maker, and political

consultant) – an ‘‘inspiration’’ for ‘‘impact.’’

7

JOHN R. WALLACH38