The lecture began at 4:30 p.m., Wednesday, March 23, and was given by Amartya Sen, Thomas W. Lamont University Professor, and Professor of Economics and Philosophy at Harvard University; the discussant was Kim Lane Scheppele, Laurance S. Rockefeller Professor of Public Affairs at Princeton University. **
THE GLOBAL STATUS OF HUMAN RIGHTS
By Amartya Sen
I feel very honored to have the opportunity to give the Grotius Lecture at this august forum. I cannot claim to be a legal scholar, with any expertise on international law, and I cannot hide my sense of inadequacy in giving this lecture in the name of one of the pioneering thinkers on law in general and international law in particular. But I take some encouragement from the fact that the great Hugo Grotius showed in his own trail-blazing work a deep interest in linking legal thinking to other disciplines of human thought.
Grotius was particularly partial to poetry, as Jean-Jacques Rousseau had noted, in comparing Grotius's ideas with those of Thomas Hobbes. In his book Emile, Rousseau even went on to say: "The truth is that their [Hobbes's and Grotius's] principles are exactly the same; they only differ in their expression. They also differ in their method. Hobbes relies on sophisms, and Grotius on the poets; all the rest is the same." (1) Whether or not we accept Rousseau's thesis (I shall come to that question later on in this lecture), it can certainly be argued that Grotius had a noticeable passion for linking up different disciplines of what can be called human reasoning. Many of his arguments make good use of what appears reasonable in common human thought. Indeed, the idea that the sea is a shared territory, which all are free to use--an idea that Grotius discussed in his book The Free Sea (published in 1609) with powerful appeal to the common understanding of reasonableness--provides a general view of political normativity that is not parasitic on legislated law by one nation or another.
I intend to take that as my point of departure, since the idea of human rights makes a similar appeal to the political normativity of rights that all human beings are supposed to have. That, to be sure, is not Grotius's claim, but there is clearly a strong analogy here. At least one of the concepts of human rights--and one which I would like to pursue in this lecture--shares with Grotius's ideas (including the argument for the shared freedom of the sea), the understanding that certain basic entitlements come not from specific national legislations, but from the recognition that these freedoms, to which people in general could be taken to be entitled, come from a general appreciation of ethical normativity, rather than any specific territorial legislation.
The global status of human rights can be seen in a similar normative perspective. There are still many issues to sort out in pursuing this line of thought, since it is a complicated claim, which can be resisted in many different ways. To defend that approach, we have to address several points of reasoned resistance to the idea of human rights that have been quite powerful in practice, and they demand reasoned examination and scrutiny, which we must not evade. To give the idea its due, we have to examine in particular what is entailed by the recognition that some particular claim should count as a human right.
This raises some general questions. How should we think about the basis of human rights? What is the nature of the discipline of human rights, which can give plausibility to the claims of such rights? These are questions that I must address in this talk. (2)
LAW AND HUMAN RIGHTS
How, then, does the idea of human rights relate to law? It is not surprising that there is a strong temptation to link human rights to law. While the idea of human rights is of comparatively recent origin, the concept of legal rights is old, well-established and widely used. Also, the language of human rights is clearly influenced by legal terminology. Furthermore, those who fight for human rights often enough work to promote fresh legislation for advancing their goals. All this makes legality appear central to the idea of human rights. Is that appearance correct? I will argue that it may not be.
Before proceeding further, I must consider one clarificatory issue. The rhetoric of human rights is sometimes applied to particular legislation inspired by the idea of human rights. There is clearly no great difficulty in seeing the obvious juridical status of these already legalized entitlements. No matter what they are called ("human rights laws" or whatever), they are laws, and they stand shoulder to shoulder with other established laws. There is nothing particularly complicated about this bit of understanding.
But that can hardly be the whole story. For one thing, prior diagnosis of the importance of some rights--unlegislated "human rights"--clearly plays an important part in motivating so-called "human rights legislation." Indeed, a great many acts of legislation and legal conventions (such as the European Convention for the Protection of Human Rights and Fundamental Freedoms) have been inspired by a belief in some preexisting rights of all human beings. There are important issues about the status and standing of human rights before any legislation aimed to give force to those rights actually occurs. (3)
When Christabel Pankhurst asserted in a speech in London in 1911, "We are here to claim our right as women, not only to be free, but to fight for freedom," adding that this is "our right as well as our duty," she communicated a strong normative claim that was not yet legislated into British law. Women did not have the right to vote in Britain in 1911, nor would that right be achieved until 1928, seventeen years after Pankhurst's speech (women would start voting the following year, 1929). The suffragist agitation, of which Christabel Pankhurst was a major leader, and the public discussion that went with it on women's moral and political "right" to vote, would materially help in the process that led to the actual legislation to give women the same voting rights as men in Britain already had.
Furthermore, we must also examine whether legislation is the only--or even the preeminent-route through which accepted human rights can be made effective. This and other pertinent questions must take us well beyond the temptation to confine the use of human rights to the limits of what has already been legislated, no matter what they are called.
However, the relationship between law and human rights does require a closer examination. I shall distinguish between three different types of connections--that human rights are (1) post-legal, (2) proto-legal, or (3) ideal-legal. I would argue that while each of these connections can be contingently important, they fail both individually and jointly to do justice to the nature and use of human rights. We need to see global human rights over a much bigger arena, of which legal motivation, actual legislation, and judicial enforcement constitute only one part.
HUMAN RIGHTS AS ETHICAL DEMANDS
I would argue, more positively, that human rights are best seen as normative articulations of social ethics, comparable to--but very different from--utilitarian ethics. Like other ethical tenets, claims of human rights of course can be disputed, but the belief that animates the appeal of human rights is that they will survive open, informed, and reasoned scrutiny. Any universality that these claims have depends on the opportunity of unobstructed reasoning (an issue I have discussed more fully in The Idea of Justice).
These questions, I must note, are not new. Debates on this subject have occurred for more than two hundred years. The American Declaration of Independence took it to be "self-evident" that everyone is "endowed by their Creator with certain inalienable rights," and thirteen years later in 1789 the French declaration of "the rights of man" asserted that "men are born and remain free and equal in rights." But Jeremy Bentham did not wait long (in his Anarchical Fallacies written during 1791-1792 and aimed against the French "rights of man") to propose the total dismissal of all such claims. Bentham insisted that "natural rights is simple nonsense: natural and imprescriptible rights (an American phrase), rhetorical nonsense, nonsense upon stilts." (4) That dichotomy remains alive today, and despite persistent use of the idea of human rights in worldly affairs, there are many who see the idea of human rights as no more than "bawling upon paper," to use another of Bentham's mocking portrayal of natural right claims, such as the French "rights of man."
However, if we recognize articulation of human rights as non-legal (or pre-legal) ethical claims, social demands linked to the so-called "rights of man" are no more nonsensical than Bentham's own utilitarian pronouncements. Indeed, the analogy between the status of utilitarian propositions and that of articulations of human rights has considerable perspicacity, even though Bentham, the great founder of modern utilitarianism, managed to overlook that connection altogether in his classic hatchet job on natural rights in general and on the "rights of man" in particular. Bentham took the appropriate comparison to be that, specifically, between the legal significance, respectively, of (1) declarations of human rights, and (2) actually legislated rights. Not surprisingly, he found the former, i.e., claims of human rights, to be lacking in legal status in the way that the latter (legislated rights) clearly had.
Bentham's dismissal of human rights thus came with amazing simplicity: "Right, the substantive right, is the child of law; from real laws come real rights; but from imaginary laws, from "law of nature" [can come only] "imaginary rights." (5) Bentham's rejection of the idea of natural "rights of man" depends on the rhetoric of privileged use of the term of...