Natural Rights and Humanitarian Wrongs
The doctrine of natural rights emerged from the eighteenth century European Enlightenment to form the ideological foundation of the American and French Revolutions. Its principal author was John Locke and through him both Revolutions are linked to the Enlightenment as well as to the English Revolution of 1688.
The ideas of humanitarian wrong and natural rights theory are related but they are not the same. The true analogy is that of two intersecting circles.
Both have a common ancestor ‑ natural law. Both depend upon the stoic-christian ‘divine’ origin of natural law to justify the claim of paramountcy over human law and human institutions. Also, they both depended upon the emergence of natural law from the constraints of medieval theology. We can see the beginnings of this in the words of the great Anglican theologian and Oxford academic, Richard Hooker (1553-1600). Hooker’s philosophy, as set out in ‘The Laws of Ecclesiastical Polity’ was based upon law. Natural law is the manifestation of the Divine order by which God acts. Natural law is eternal and immutable. Positive law, which includes all forms of government, varies according to external necessity and experience. To this point Hooker is thoroughly medieval. But he then proceeds to emphasise that natural law is discoverable by human reason. It is human reason, applied to circumstances and in the light of Scripture, which ultimately regulates such externals as church worship and church organisation. Hooker stands between the medieval and the modern period of natural law.
Hugo Grotius (1583-1645), the father of International law is often spoken of as having secularised natural law. If this be somewhat exaggerated there is no question as to Grotius’ seminal importance. Grotius stated that natural law is a body of law which man is able to discover by the use of reason.* He then added that ‘what we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to Him’.* It is important to note also the influence of 16th century catholic writers on natural law, particularly Suarez, who, although speaking in the language of St Thomas, emphasised human reason and tended to subject the Church to natural law rather than vice versa.*
Grotius proceeded to construct a system of law without reference to theology or scriptural authority, ‘I have made it my concern to refer the proofs of things touching the law of nature to certain fundamental conceptions which are beyond question, so that no one can deny them without doing violence to himself’. “For the spiritual authority of Divine law the intellectual authority of reason was now substituted.” [For an excellent exposition of Grotius's influence and his conception of natural law, see Charles Taylor, A Secular Age, Harvard University Press, 2007, pp.126-128]
The jurists who followed Grotius such as Pufendorf, Berlamaqui and Vattel differed between themselves as to the extent to which reason, positive law or custom should govern the new principles of international law that were being formulated. But none suggested that there should be recourse to theology. In the field of private law, the natural law school lent heavily upon Roman Law in a revised and refined form. In the field of public law ‑ criminal law and constitutional law ‑ it was not possible to identify natural law with Roman Law because, apart from anything else, Roman Law in those fields was too crude and undeveloped.
In the eighteenth century natural law went beyond secularisation and took a turn which proved to be critical. Henceforth its focus was upon the individual.* In the hands of Enlightenment thinkers, this concerned the ‘rights’ of the individual not the ‘duties’ owed to the individual imposed by natural law upon society. The eighteenth century jurist Wolff described the change when he said ‘whenever we speak of natural law (ius naturale) we never intend the law of nature, but rather the right which belongs to man on the strength of that law, that is naturally’ (italics added).*
There were a number of reasons for this change from ‘Law’ to ‘Rights’ but chiefly it was because of the theory of social contract which became the foundation of democratic political theory.
Locke explained this in his ‘Second Treatise on Civil Government’:
“In a pre-political society every one is equal in that none has any power over his fellows. All are subject to the law of nature, according to which no one ought to harm another in his life, liberty or property. But in the state of nature man’s rights are insecure. Only a civil society can provide that. So the adult members of the society make a contract whereby each agrees to assign to civil authority the power necessary to the ends for which they unite in society.”*
Individuals only vest powers in the State in order that the State may protect their rights. (And the ‘great and chief use of men… putting themselves under government is the preservation of property.’)
The humanitarian idea, unlike natural rights theory, continued the original notion of natural ‘law’: its focus was upon wrongs which implied duties and not upon individual rights* . To understand this difference and the intersection of natural rights with humanitarian wrongs something must be said about the formal distinction between ‘rights’ and ‘duties’.
A ‘right’ in the strict sense requires a right-holder. It is the negation of ‘right’ if the person advantaged has no option whether to make or refuse to make a claim. H.L.A. Hart expressed it graphically when he said that ‘the precise figure is not that of two persons bound by a chain, but of one person bound, the other end of the chain lying in the hands of another to use if he chooses’.* A ‘right’ will always involve a duty even though that duty may not arise until the right-holder has elected to exercise the ‘right’. A wrong is constituted by a breach of duty but will not necessarily involve infringement of a corresponding right. In the case of slavery, cruel punishments, maltreatment of insane or cruelty to children no question of ‘right’ in the strict sense arises. The duty imposed and broken exists independently of the exercise of any right. We may, it is true, speak of the right not to be tortured. Such a way of speaking would be understood. It would seem though a curious use of language. We would rather say torture is a wrong in the same way as we now say genocide is a wrong. Humanitarian duties giving rise to these kinds of wrongs, not depending upon the exercise of a corresponding right, touch acutely upon the human conscience.
A characteristic of duties giving rise to humanitarian wrongs is that the range of circumstances which will allow non-performance to be excused is very narrow and limited. Unlike rights, humanitarian duties are not excused by public necessity. It is conceivable that information disclosed by torture would have some public benefit. The forced labour in Stalin’s terrible ‘First Circle’ may have been valuable to the Soviet Union’s economic development. These though do not justify torture or forced labour. A duty must of course be capable of performance. There can be no duty to do what is impossible. But beyond that it will be near-absolute.
Humanitarian wrongs cannot be absolved by consent. Consent by a slave to his or her status is nugatory because that would deny the autonomy upon which the significance and efficacy of the consent depends.* In contrast, consent by the individual concerned is ordinarily a conclusive answer to any alleged denial of a ‘right’. The notion of contract - or consent - was of the essence of Lockean natural rights. Rights were guaranteed because their exercise was an affirmation of autonomy. It was thus compatible with the recognition of a ‘right’ to admit that a person may refrain from exercising it or agree not to exercise it. Indeed, to deny the individual that power would be to deny the foundation of natural rights theory.
To sum up - the normative element in the conception of a right is contingent upon circumstance and the expression of autonomy by the person concerned. Rights may relate to matters of great seriousness but there are no rights in which the right-holder is denied the choice - a choice whether to exercise it.*
Political developments in the eighteenth century encouraged a tendency to ‘speak’ of rights. The expression of ‘natural rights’ is emotionally emphatic. It implies a demand that must be fulfilled. As de Tocqueville remarked, ‘it removes any note of supplication’. ‘Rights’ not ‘duties’ is the rhetoric of revolution. Moreover it was often immaterial in ordinary language whether one spoke of the right or referred instead to the corresponding duty. It did not matter in the world of political rhetoric that this assumption of interchangeability was in important respects erroneous. In the result, human rights proved to be ‘the greediest of categories’. Subsumed within it were almost the entire range of human claims, notwithstanding the differences between them were quite fundamental.
It would have been possible, within the premises of Enlightenment autonomy, to have recognised that absolute duties were owed to human beings and wrongs would be committed by their breach. Kant’s proposition that ‘in general every rational being exists as an end in himself, not merely as a means for arbitrary use by this or that will’ enunciated a ‘wrongs’ principle consistent with rights theory precisely because, as with that theory, it derived from the Enlightenment idea of autonomy. ‘Rational beings, are called persons because their nature already marks them out as an end in themselves - that is, as something which ought not to be used merely as a means…’* But Kant was too abstract for political debate. Everything became directed to ‘rights’.
Failure to keep clear the distinction between rights and duties may prove to be a source of conflict. This will occur where the person affected agrees to abandon any ‘right’ which he or she might otherwise have. If it is a ‘true’ right, such an agreement will be sufficient. If a humanitarian duty is owed, the person’s agreement will be irrelevant.
Conflict arose first with regard to slavery. Considered as a humanitarian wrong no question of justification to enslavement by consent arises but, considered in terms of natural rights theory, the matter is more complicated. The starting point is that ‘all men (are) free and equal in respect of their rights’. A person can, as we have said, divest himself or herself of a right by refraining from exercising it or by alienating it. A person’s body was, in Lockean terms, that person’s property. He or she was thus able to alienate his or her right in it.
The proposition that slaves had alienated their freedom was in fact relied upon to justify the Slave Trade. Grotius had explained that slaves were originally captives in war who had bargained liberty for life.* Jurists like Samuel Pufendorf supported this rationalisation. Enlightenment thought rejected it.*
In 1755, the Encyclopedie, in its article on ‘Slavery’, set out, what David Brion Davis described, as a ‘basic principle which was to guide the radical abolitionists of the nineteenth century’*:
“Thus there is not a single one of these hapless souls - who, we maintain, are but slaves - who does not have the right to be declared free, since he has never lost his freedom: since it was impossible for him to lose it: and since neither his ruler nor his father nor anyone else had the right to dispose of his freedom; consequently, the sale of his person…, is null and void in and of itself: this negro does not divest himself, indeed cannot under any condition divest himself of his natural rights; he carries them everywhere with him, and he has the right to demand that others allow him to enjoy those rights. Therefore, it is a clear case of inhumanity on the part of the Judges in those free countries to which the slave is shipped, not to free the slave instantly by legal declaration since he is their brother, having a soul like theirs.”
These wonderful reflections are consistent with the idea of slavery as a wrong but not with it being a ‘right’. The answer adopted by natural rights theory was to describe the right as inalienable. It was adopted because enlightenment thinkers were horrified by slavery and were concerned to reconcile their position with natural rights. Rousseau, in particular, rejected alienability. ‘To renounce liberty is to renounce being a man, to surrender the rights of humanity and even its duties’.* Alienability was said to be inconsistent with Locke’s social contract in which a man’s fundamental rights were protected from the ‘inconstant, uncertain, unknown, arbitrary will of another man’.*
‘Inalienability’ became part of natural and human rights discourse. The Declaration of Independence spoke of ‘certain unalienable rights, life, liberty and the pursuit of happiness’. In our own time the Universal Declaration of Human Rights refers to the ‘inalienable rights of the human family’.
It was possible in the particular case of slavery to speak in terms of an ‘inalienable right’ because alienation by the slave involves total surrender of his or her autonomy. But what does inalienability of rights in general mean? An inalienable right to life is perhaps comprehensible. You may take your own life but not allow another to kill you. But in general the nature of an ‘inalienable right’ is a contradiction in terms. Whatever analysis might yield, the free and euphemistic use of the expression, ‘inalienability’, diluted it of meaning.
In the short term the idea of inalienability served the practical purpose of enabling natural rights theory to condemn slavery but it did so at the price of confusion. The confusion was not merely conceptual. It meant that there was no basis for distinguishing between human claims that were absolute and those that were contingent upon circumstance or the exercise of choice - in effect between those that were fundamental and those that were within the perimeter of autonomy. This confusion was a factor in the conflict between enlightenment and evangelical humanitarians during the nineteenth century.
In summary then the humanitarian movement engaged in action against wrongs which were constituted by the breaking of duties in contradistinction to the denial of rights. These duties may be described as ‘bare’ duties in contrast to ‘true’ rights, which give rise to a duty only upon the exercise of a right. It is not that these ‘bare’ duties do not have a corresponding advantage, benefit or right vested in individuals benefiting from their performance. The critical difference is that the existence of these duties does not depend upon the exercise of any such corresponding right. Because ‘true’ rights are vested in an individual or individuals severally, they are appropriately given effect by private remedy. ‘Bare’ duties are typically enforced by public action through the criminal law as not being dependent upon enforcement by the person disadvantaged by non-performance.*
In the nineteenth century public enforcement meant enforcement through the national criminal laws, as international law was too embryonic. Social action was directed to changing those laws. This imposed an anomalous limitation because the State itself was often the subject of humanitarian norms.*
* “But it is when purged of clericalism and applied to the relations of States with one another that its greatest contribution of the doctrine of Natural Law to the modern age is seen. Grotius … bases his work on the assumption that men are in society held together by natural law which makes certain common duties binding: he held up the notion of a law universal in scope, commanding respect and reverence, …” E.F. Jacob, Legacy of the Middle Ages, Oxford, p.528.
* On Laws of War and Peace (1625), Prolegomena s11.
* See the Introduction by Professor Barker to Natural Law and the Theory of Society, 1500-1800, by Otto Gierke, Beacon Press, xli.
* W. Friedmann, Legal Theory, 2nd Edit., Stevens and Sons Ltd, 32.
* For a useful discussion, see A.P. Éntreves, Natural Law, Harper Torch Books, pp.57-62.
* Ius Naturale Methedo Scientifica Pertractum, 1741.
* Para 99.
* Insofar as the humanitarian movement was concerned with the denial of rights, there was always some superadded feature: see infra.
* Are there any natural rights?, Philosophical Review LXIV 64 (1955).
* There are certain wrongs where coercion is intrinsic. An example is forced labour. Compulsion is of the essence and it is a ‘wrong’. To describe forced labour as a denial of the right to labour freely would be misleading.
* Rights may also be trivial. As J D Mabbot observed many years ago, ‘Rights have become so fashionable that six month’s scrutiny of a correspondence column revealed a natural right to a living wage, the right to work, a right to trial by jury, a right to buy cigarettes after 8.00pm, a right to camp in a caravan at the road side and a right to walk on the Grouse Moors of Scotland during the closed season’, The State and the Citizen, Arrow Books, p.58.
* Kant, Groundwork on the Metaphysics of Morals, trans. by H J Paten Harper Torch Books, p.96.
* In Roman Law ‘the two chief sources of the supply of slaves were capture in war, and birth. According to the barbarous law of war in ancient times, every prisoner of war was made a slave. A Roman captured by the enemy was considered by Roman law to be lawfully a slave. But if he effected his escape and returned to his own country… he was placed as far as possible in the same position as if he had never been captured.’ Hunter’s - Introduction to Roman Law, Sweet & Maxwell p.26.
In some societies, Athens before Solon, one could choose to become a slave by selling one’s person to escape debt, Westerman; the Slave Systems of Greek and Roman Antiquity, Philadelphia, 1955, p.4.
* This is so notwithstanding that many thinkers and statesmen were compromised by their slavery connections. Whilst Locke himself had said that ‘slavery is so vile and miserable an Estate of Man, and so directly opposite to the generous Temper and Courage of our nation that t’is hardly to be conceived that an Englishman, much less a Gentleman, should plead for t’, he was an investor in the Royal Africa Company ‘and clearly regarded slavery as a justifiable institution’, Davis, p.118. Thomas Jefferson, author of the Declaration of Independence, George Washington, James Maddison, Patrick Henry, John Marshall and James Monroe were all slave holders.
* See Davis, p.416.
* The Social Contract and Discourses, Everyman’s Library, p.8.
* John Locke, Political Writings, Penguin Classics, Second Treatise, p.302.
* The nature of duties may be illustrated by a consideration of the international covenants on human rights and, in particular, the International Covenant on Civil and Political Rights. These Covenants emanated from the Universal Declaration of Human Rights (1948) and it would have been unthinkable to describe them other than as rights. To do so would have unacceptably diminished their normative emphasis. But the Universal Declaration was formulated in the shadow of the holocaust. Its preamble refers to ‘barbarous acts which have outraged the conscience of mankind’. As well as ‘true’ rights the Universal Declaration describes as rights provisions which in fact impose duties without a corresponding right.
Examples of ‘true’ rights are the right of peaceful assembly (Art.21) and freedom of association (Art.22(I)). Each is subject to a fairly wide and similar exclusion i.e. where a contrary restraint is ‘necessary in a democratic society’ etc. Also, the right to free movement enables everyone ‘freedom to choose his residence’ (Art.12(I)). That freedom is subject to the need to ‘protect national security, public order, public health or morals’ (Art. 12(3)). These are ‘true rights. It is compatible with a ‘true’ right that States should be required to provide ‘an effective remedy’ to any person ‘whose rights are violated’ as provided in Article 2(3)(b). All ‘true’ rights are subject to a general ‘public emergency’ exception i.e. they shall not apply in an ‘emergency threatening the life of the nation… officially proclaimed’. (Art.4).
This provision, Article 4, provides a useful, although not invariable, demarcation line. The Covenant sets out a series of ‘rights’, known as non-derogable rights, to which the Article 4 ‘public emergency exception’ does not extend. These are the right to life (Art.6(2)); torture (Art.7); medical experimentation without consent (Art.7); cruel, inhumane and degrading treatment (Art.7); slavery and servitude (Art.8); retroactive penalties (Art.15) and freedom on conscience and belief (Art.18).
In addition, these ‘rights’ are not subject to specific exceptions or if they are, the exception is limited. We do not, for example, find a ‘necessary in a democratic society’ exception. In most cases the right is expressed as, ‘No one shall etc.’ - in other words as a prohibition appropriate to criminal law enforcement rather than private remedy. This is made extremely clear in the Convention against Torture 1984. It provides that ‘each Party shall take effective legislative, administrative judicial or other measures to prevent acts of torture’ (Art.2(1)) and ‘no exceptional circumstances whatsoever may be invoked as justification of torture’ (Art.2(2)).
* Gradually, but increasingly, these norms have been internationalised by the development of international criminal law to which States are subject. This has been done not only by Conventions such as the Genocide Convention but by customary international law i.e. law accepted and recognised by the international community of States. In the Barcelona Traction case the International Court of Justice ruled that such customary law ‘obligations derive from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination’.
The concept of ‘crimes against humanity’ was first incorporated into international law by the ‘Martens Clause’, Article 1 of the preamble to the Fourth Hague Convention of 1907. International law is in a process of defining those crimes. Jurisdiction is universal i.e. wherever an offender is found; all States are bound to observe international criminal law; State sovereignty will not avail (Pinochet); individuals are also directly subject to it - ‘crimes are committed by men, not abstract entities’ (Nuremberg); superior orders are no defence (Nuremberg).
What was lacking has been a standing Court to give effect to these laws. A Statute for an International Criminal Court was agreed to by over 100 States in Rome on the 17th July 1998.
We can see in the case of religious toleration an example of the developments we have been tracing. First are national laws removing the disabilities attaching to heterodox belief and proclaiming liberty of conscience; Article 18 of the International Covenant establishes ‘freedom of thought, conscience and religion’ as a non-derogable international right and, finally, the International Criminal Court Statute makes ‘persecution of an identifiable group on religious grounds’ an offence (Art.7(I)(h)).
Natural Rights and Humanitarianism - Letter to Tom Greenwell, 27/8/01
I attempt, in what follows, to answer your question whether, and in what way the humanitarian idea I have outlined in my Study differs from liberalism. I hope we can find time to discuss this when you come up on the 31st but suspect that that might not be possible.
Liberalism proclaims the centrality of human rights. That is, I think, its principal message. The humanitarian movement of the late 18th and 19th centuries directed action and protest at the way human beings were treated. It did not attack slavery, prison conditions, capital punishment, torture, working conditions, the treatment of the insane, the cruel treatment of animals in the name of natural or human rights. Bentham, who described natural rights as ‘nonsense walking on stilts’, and Wilberforce, who detested the French Revolution, would, in their different ways, have been appalled at the suggestion they were fighting for human rights.
The first difference then between humanitarianism and liberalism is that the former is concerned with the maltreatment of human beings and the latter with rights. On the face of it, this suggests the former is concerned with a factual state of affairs whilst the latter is normative.
This difference is not unimportant, although for reasons I shall explain, it is in a sense superficial. Its importance lies in the different modes of action which each of these requires. Liberalism’s agenda was primarily the legal recognition of natural rights and then later in the 19th century, the attainment of democracy* Humanitarian action may have been legislative in immediate aim but that was only in order to achieve removal of the conditions giving rise to an abuse.
But the distinction does not go too far. The treatment of human beings with which humanitarianism was concerned was maltreatment: it was ‘wrongness’ in the conditions from which human beings suffered. This brings us back to a normative foundation for humanitarianism and in that respect it is comparable with the natural rights of liberalism.
Were the wrongs of humanitarianism dependent upon the same basic principle as the natural or human rights for which liberalism fought?
I think they clearly were. Both were based upon the European conception of the individual.
I have explained elsewhere the origins of the stoic ideal of equality of moral significance of the individual human being and the law of the Law of Nature and how both became transmogrified by the medieval Church only to re-emerge in something like their original forms in the 17th and 18th centuries.
The idea that human beings should not be treated in a certain way simply because they were human beings and that that principle had superior moral force to positive law formed the common base of humanitarianism and natural rights. Humanitarianism and natural rights are directed against the denial of the individual's moral significance. The conception is distinctively European. It was not part of the great Eastern religions* or of ancient China*. Nor did it form part of the thinking of Plato or Aristotle. It was, as I have mentioned, derived from the stoics and their idea of natural law which embodied the principle of the individual's spiritual equality. But it was natural law they proclaimed not natural rights.
There was no notion of natural ‘rights’ in the ancient world. Roman law of course defined private rights but these were rights of citizens vis a vis each other. Roman Law provided insignificant protection against the State. The notion that individual human beings had rights against the State and that these rights could be justified by natural law had hardly been thought of during the middle ages, when natural law, influenced by the Church, endorsed serfdom and other forms of inequality. The peasants who revolted did so in the name of social equality inspired by the New Testament not in the name of rights. The first to speak of rights in anything like a modern sense was the Spanish Professor of Theology at the University of Salamanca, Francis de Vittoria. de Vittoria advised the Pope that the Indians in the New World had rights and because of this could not be dispossessed of their lands (1532).* The idea of rights lay behind the assertion of Independents, Unitarians and other protestant sects in their advocacy of liberty of religious belief. John Milton was the most prominent as well as the most eloquent to write in support of liberty of conscience.
But a generalised conception of rights had to await other thinkers later in the 17th century and in the next.
It was in those centuries that social thought turned increasingly towards natural rights both philosophically and as a political catchcry.
The immediate reason lay in the need to justify rebellion against the State. In these two centuries Charles I was beheaded (1648); James II was deposed to be followed by the Glorious Revolution (1688), and the American (1776) and the French (1789) Revolutions. Charles I was charged with ‘seeking to erect and uphold in himself an unlimited and tyrannical power’. His oft-repeated question throughout the trial, ‘by what authority do you try me?’ demanded a general answer beyond Charles I and his particular trial. It was the search for such a general answer which led to natural rights. There was however one other historical factor of almost equal importance. This was the disintegration of feudalism and the demand by the new middle classes for a vindication of their right to private property.
For the next two centuries European political thought was based upon the social contract. This assumed that man in a state of nature lacked law, order and government so that, in order to resolve this, peoples united in a contract to confer lawful authority on the King. You will see that this idea does not necessarily involve either natural law or natural rights. And indeed this is precisely how Thomas Hobbes used it in order to justify royal authority and deny the rights of rebellion.
John Locke, who became the most influential thinker until the 18th century, proceeded very differently. In his Second Treatise on Civil Government he makes clear the derivation of the social contact from natural law. “The state of nature has a law to govern it, which obliges everyone. And it is reason, which that law teaches.” Locke himself was intimately involved in the resistance to James, having fled England to Holland and returned on the same vessel as William and Mary. In a further passage from the Second Treatise he set out the basis for the social contact.
“In a pre-political society every one is equal in that none has any power over his fellows. All are subject to the law of nature, according to which no one ought to harm another in his life, liberty and property. But in a state of nature man’s rights are insecure. Only a civil society can provide that. So the adult members of the society make a contract whereby each agrees to assign to civil authority the power necessary to the ends for which they unite in society.”
Individuals vest powers in the State in order that the State may protect their rights.
The American Declaration of Independence is pure Locke. Thereafter, natural rights became embodied in the American Constitution and was the banner under which the French Revolution was fought.
Humanitarianism had its beginnings in the midst of this. It was based upon the same common principle as natural rights - the moral significance of the individual. But it was concerned with ‘wrongs’ to human beings not their rights.
It may be suggested, however, that a wrong implies the breach of a legal or moral duty and if moral duties are based on the same common principle as that of rights, each duty will merely be the obverse of a corresponding right. Accordingly, the difference then would only be one of language expressive of a different perspective - the need for action to remove abuse in the one case and the legislative recognition of rights, in the other.
This is not, I think, a true picture but its consideration requires some analysis of what constitutes a ‘right’.
In a strict sense, a right requires a ‘right-holder’. It is the negation of a right if the person advantaged has no option whether or not to make a claim. Herbert Hart, a famous English jurist, who is still alive, once said of a right and its corresponding duty that, ‘the precise figure is not that of two persons bound by a chain, but of one person bound, the other end of the chain lying in the hands of another to use it if he chooses”. A right-holder can always absolve the other from performing a corresponding duty by refraining from exercising the right or by agreeing to forgo it.
The duties involved in humanitarianism do not require corresponding rights or the exercise of a right in order to become operative. The assertion of a right plays no part in the wrongness of slavery, cruel and inhumane punishments, maltreatment of the insane or cruelty to children. In each case these involve the breach of a bare duty. A right-holder is not even necessary as is the case, for example, with regard to animals. Freedom of contract and consent were historically as well as analytically at the heart of natural rights doctrine but never of humanitarianism.
The differences, to which I am referring, lie behind two historical collisions between natural rights and humanitarianism. Enslavement cannot now be justified by and absolved by consent but this was once forcefully urged in justification of the Slave Trade. As such, it was apparently in accord with the natural rights doctrine. This was rejected by humanitarian as well as by Enlightenment thought. The French Encyclopaedists put it well saying ‘the sale of his person is null and void in and of itself: this negro does not divest himself, indeed cannot under any condition divest himself of his rights’. But to say this, is, whilst consistent with humanitarianism, to jettison contract - the critical element in natural rights.
The other example is the clash between natural rights and the humanitarians over the conditions of workers in Victorian England. Those conditions were justified by natural rights. The worker contracted his labour for wages. It was his natural right to bind himself or herself by contract. The humanitarians rejected this entirely. As Lord Shaftsbury described it, ‘over a large surface of the industrial community Man has been regarded as an animal … his life devoted to the manufacture of wealth.’
One reason for this different emphasis was the part played by the christian reformers in the humanitarian movement. The Quakers have had an enormous influence in the humanitarian movement. The foundation of their humanitarianism was belief in the ‘inner light’, the divine element in every human being through which each person made immediate contact with - and, in effect listened to - God. It was this shared divine element which gave to all human beings - even non-christians - spiritual equality. The other group of christian reformers were the evangelicals. Envangelicalism saw human significance in salvation but, in a heterodox way, salvation was seen to take place in this world - not after death. The person who was ‘saved’ could and should demonstrate his or her rarefied condition by humanitarian benevolence. The individualism of the christian reformers was thus directed to wrongs suffered by human beings.
Nevertheless, whatever the differences between humanitarianism and natural rights they do intersect.
First though I should dispose of a false or semantic intersection. This arises because norms which were truly duties became bundled together with ‘rights’ in the great human rights instruments and were described as rights. The reason for this was simple enough. ‘Rights’ are emotionally emphatic. As de Tocqueville remarked, ‘they remove any note of supplication’. And so prohibitions, which were absolute and not dependent upon the exercise of choice or consent, such as those concerned with enslavement, torture, persecution for religious belief, forced labour and more recently medical experimentation have all been described as conferring rights. In some cases, in an attempt to recognise the truly obligatory nature of the norm, the ‘right’ has been described as ‘inalienable’.
There is, however, a more fundamental way in which natural rights and humanitarianism do truly intersect.
Natural law turned towards natural rights on the eve of the French Revolution. Its immediate impetus was, as I have said, justification of rebellion and revolution and satisfaction of demands for the right of private property.
But these developments reflected a general conception about humanity. That conception gave pre-eminence to autonomy. The essence of each individual was his or her autonomy. This was so because each human being was able to give rational expression to his or her will. The autonomous expression of will by the individual human being alone created value. All human beings were spiritually equal in that respect and each was, because of this, an end in himself or herself. These ideas organised systematically by Kant formed part of late 18th century thinking.
Inhumanity had been and continued to be the maltreatment of and cruelty to human beings. But against this background it came increasingly to mean the denial of autonomy. This was exemplified in the imposition of discriminatory status. Status is the imposition by law of differing rights and obligations upon a section of the community. Discriminatory status is the imposition of burdens upon a section of the community defined by some badge of inferiority. Status of this kind, whether serfdom or slavery, was an accepted, almost unthinking part of pre-Enlightenment Europe. One did not question the status which through birth or accident one belonged.
What now emerged was a new principle that discriminatory status based upon birth (slavery, serfdom), religion (catholic, protestant), sex (women) and eventually race was itself wrong, independently of any maltreatment arising because of it. With the denial of autonomy through discriminatory status we are reaching the boundary of humanitarianism and liberalism. I think the clearest instance of this is the case of the subordination of women in the 19th century.
And so to sum up, liberalism and humanitarianism do differ but they both derive from the same underlying principle -- the moral significance of each individual human being. Liberalism is based upon 'rights', chiefly seeking their definition in legislation. Humanitarianism is concerned with 'wrongs' and actual maltreatment resulting from them. As I explained, wrongs are not merely the obverse of rights. They involve the breach of absolute or near absolute duties. They do not involve choice, consent or contingency other than impossibility. Historically, these differences between natural rights and humanitarianism did in fact produce collisions between them. This occurred in the case of slavery where it was contended the slave had consented to his status and in the case of industrial working conditions in the nineteenth century where liberty of contract and the right of property were invoked as justification. Nevertheless, they have in practice more recently intersected as where denial of autonomy or the imposition of inequality become inhumane.
I am sorry this letter is so long and didactic. It seems very unfair that a simple question on the telephone should receive such a lengthy burst in reply, but you will have realised that your question touched upon a central issue in the Study.
* For it must not be forgotten that the idea and legal recognition of natural rights preceded universal adult suffrage.
* See below, Hinduism, Buddhism, Islam and the ideas underlying Western Humanitarianism.
* See, C.P. Fitzgerald The Birth of Communist China, Penguin, pp.38-39.
* Isaiah Berlin, however, suggests William of Ockham was the first to speak of rights in a modern sense.
The movement for political and social equality in the eighteenth century like the theory of natural rights, accompanied and inspired the American and French Revolutions. The ideal that ‘all men are by nature equally free and independent’ was first proclaimed in the Declaration of Virginia* and, less than a month later in the Declaration of Independence. George Rudé described ‘the emphasis it (the French Revolution) placed on equality’ as its ‘distinctive feature’. ‘This,’ he added quoting the French historian George Lefebre, ‘was the real mission of the Revolution’.
The eighteenth century ideal of equality was anti-feudal and anti-privilege. It related to the evolution of political democracy rather than to social reform. ‘Privilege was the enemy, equality the aim’.* In general, the ‘Declaration of the Rights of Man’ (1789) voiced the basic claims of the Third Estate: ‘protection of property, freedom of conscience, of the press and from arbitrary arrest, equality before the law, equal taxation and equal eligibility to office… equality is presented in largely political terms; economic equality does not arise’. During the nineteenth century the ideal of equality broadened to include economic disparities. In 1827, Robert Owen coined the term ‘socialism’. Equality became the tenet of the socialist movement.
The ideal of equality was thus given expression in political and social action in the early nineteenth century at about the same time as humanitarians were fighting for reform. Nevertheless humanitarianism never merged with the movement for equality. The idea of equality was repellent to many of the prominent reformers. Lord Shaftsbury detested socialism. He never fought for the women and children oppressed in English factories in the name of equality. Nothing could have been further from Wilberforce’s thinking than civil or social equality.
The question remains - to what extent are the two ideals related and to what extent do they differ? For, from the time of the stoics, the equal moral significance of human beings had been critical to the evolution of the concept of the human person in western thought.
In one respect the difference is clear. The principle of social equality refers to relationships in which human beings are either treated equally or not in respect of each other. One major category of humanitarian wrongs - torture, persecution for conscientious belief or cruel punishments - has nothing to do with relationships. The person, as a social isolate, is wronged if treated in a particular way. In the case of these wrongs the principle of equality is not relevant. There is, though, another class of humanitarian wrongs in which the existence of a relationship is critical. In almost all such instances - slavery for example - the relationship is also unequal. The question then is whether this is a self-sufficient factor. Is there, in other words, any difference, except in point of degree, between an unequal relationship and one that is inhumane?*
Where the principle of social equality applies, the critical complaint is usually that of unfairness arising from the inequality. Examples occur where wages are too low or are discriminatory. It is because unfairness is the basic complaint that the principle of equality, when applied in the social field, comes increasingly to mean equality of opportunity. As a result, the principle tends to lead to policies of distributive justice such as social welfare, health care, free education and progressive taxation.
When we describe a relationship as inhumane we refer not to unfairness but to oppression.* The essence of the distinction is group discrimination. The discriminated group is deprived of matters fundamental to their humanity. It is for this reason that the humanitarian movement directed its concerns to inequality arising from the discrimination against a class of persons on grounds of religious belief or sex and, later, upon grounds of race and colour. It was not a matter of the comprehensiveness of the disabilities imposed but rather that a badge of inferiority was chosen to identify the class of persons.
Usually discrimination is given effect by imposing a separate status upon the class. Status is a legal conception involving the class of persons to which it refers having, collectively and comprehensively, different rights and obligations, fixed by law, from those of the rest of the community.* It differs from inequality of rights resulting from restrictions randomly imposed. An example of a discriminatory status in the nineteenth century was that of ‘married women’ who were distinguished legally and socially as a class of human beings.
It may be, however, that status will be applied to a group who are inherently deprived of or limited in their human potential. In such a case their separate status is designed to protect them and enable them to be cared for.
In the nineteenth century the humanitarian movement was prominent in the protection of children and the care of the insane. Prisoners give rise to special considerations but they might be likened to a group needing to be protected although subject to the inherent disabilities of punishment.
It may be said that, however this social action is described, it is not consistent with the principle of equality in the sense required by the humanitarian ideal because protective action assumes the protected group’s unequal legal status.
The suggested inconsistency is mistaken. It would have validity only if the principle of equality were limited to absolute equality of rights and obligations. The principle is one of equality of respect for each human being by virtue of his or her common humanity, even where it is not possible for each to exercise the same rights. Where human beings have their full potential the principle will of course require all to share equal rights and obligations. But where that is not the case, as, for example, in the case of the insane, the principle of equality requiring respect for their common humanity is given effect by ensuring that they are cared for – diminution of their rights being necessary for that purpose.
* Alfred Cobban, A History of Modern France, Pelican, Vol.1, pp.262/263
* The distinction we are making is substantially that drawn by John Rawls in the following passage: “Some writers have distinguished between equality as it is invoked in connection with the distribution of goods… and equality as it applies to the respect which is owed to persons irrespective of their social position… equality of the second kind is fundamental. It is defined by … such natural duties as that of mutual respect; it is owed to human beings as moral persons.” John Rawls, A Theory of Justice, Oxford Paperbacks, 1976, p.511.
* The distinction is made clearer in the case of ‘affirmative discrimination’ where the purpose of legislative and government action is to ‘make’ people equal. It is perhaps most difficult to draw in the employer-employee relationship where matters of degree are involved in judging whether conditions are only unfair or inhumane. But such a distinction was in fact drawn in Australian Industrial law. The basic wage required by law did not purport to meet the criterion of fairness. It was a ‘basic’ wage. In the famous Harvester Judgement (1907) Mr Justice Higgins specified the minimum living wage for an unskilled Australian male based upon ‘the normal needs of the average employee, regarded as a human being in a civilised community’.
* Paton, Jurisprudence, 4th edit., Oxford, pp.399-400.
Conflict between Natural Rights theory and Humanitarianism
In many instances it does not matter whether one relies upon natural rights theory or upon the imposition of a ‘humanitarian’ duty by natural law. But it does where the ‘right’ allowed by rights theory, is inconsistent with the humanitarian duty owed. Such a conflict did arise in the treatment of the working classes in England during the nineteenth century.
The evangelicals led a century long campaign for factory legislation. They saw it as a humanitarian wrong that, in the language of Lewis Mumford, ‘human beings were dealt with in the same spirit of brutality as the landscape; labour was a resource to be exploited, to be mined, to be exhausted, and finally to be discarded. Responsibility for the workers’ life and health ended with the last payment for the day’s labour’.
In this struggle the great ideological enemy of humanitarianism was the right to contract unhindered by government restraint.
The claim to liberty of contract was in some degree a mask for self-interest. Lord Shaftsbury’s most vehement opponents in the Commons were the mill and factory owners Bright, Pease and Ashworth who justified their opposition by that claim. It is not, however, true that they were merely rationalising self-interest. They held a firm belief in free trade which led Cobden, for example, to negotiate international commercial agreements and link them to disarmament and peace.
One needs to go back to the theory of natural rights itself and the social conditions in which it originated to see why it was thought to justify opposition to factory legislation.
Originating with Locke, natural rights theory was grounded in a belief about the nature of the human person. Both Descartes and Locke taught that mind and body were independent. The human person was identified with mind. Accordingly, a person's body was regarded as that person's property ‑‑ the property of his or her mind. Each person or mind was independent of every other. It followed from this separateness that relations between persons were impersonal and consensual. There could be no bond between free, equal and independent units except through contract. Government also was based upon consent. It had been established contractually by its members – by the social contract – in order that society might be protected. Locke said, ‘the reason why men enter into society is the preservation of their property: and that why they choose and authorise a legislative is that there may be laws made and rules set as guards and fences to the properties to all members of the society.’ It was because these natural rights were considered anterior to society that they were treated as superior to any duties or obligations a government might seek to impose.
Natural rights theory was an ideological blast directed at the ramparts of feudalism. ‘Rights’ became fashionable. Functions and duties became discredited. The theory of natural rights was to become the industrial capitalist’s rationale.
At the time Locke advanced these views in the seventeenth century land belonged either to feudal magnates or to small independent farmers. The right of property of small proprietors was seen as an extension of each individual farmer’s personal labour. It was this which justified the right. ‘He that in obedience to this command of God (to labour) subdued, tilled and sowed any part of (the earth) was his property which another had no title to, nor could without injury take from him’.
This remained an adequate description of the relationship of the producer to his land for more than half a century after Locke wrote. Even towards the end of the eighteenth century, at a time when Adam Smith was writing the ‘Wealth of Nations’, the Factory system was still in its infancy.
But the world of small producers changes when we reach the threshold of industrialization. In 1758 Brindley built the first canal between Liverpool and Manchester; in 1765 Watt introduced the use of steam as motive power; in 1769 Arkwright re‑discovered the Wyatts’ method of roller spinning and in 1790 Hargreaves perfected the spinning jenny. We see the breakdown of the country and the rise of cities. The industrial revolution had begun.
We no longer have the individual producer whose property is the product of his own labour or acquired from his own savings. Nor the employer who is only slightly removed from the half dozen journeymen whom he employed. What we have are large industrialized factories, the result of aggregated capital, with numerous propertyless employees who have been feeding into the cities from the country‑side. These had no property but only labour-power to sell. There was an over-abundant supply of them. Between 1760 and 1860 the enclosure of the commons land forced large numbers from the country. The population throughout Europe increased dramatically in the latter half of the eighteenth century. The reasons for its beginnings are unclear although by the nineteenth century it was largely accounted for by the falling death rate. All of these swelled the industrialised cities.
It may be that in the seventeenth century, at the time Locke wrote, the work of a person upon the property he or she owned and the produce of that work, could fairly be described as an expression of that person’s personality: similarly, in the case of the consent given in contractual transactions. As such, both ownership and contract could be viewed as ‘rights’. But once the chief incident of property became economic power and the labourer’s consent became purely formal, we are no longer speaking of their ‘rights’.
In such a situation what Shaftsbury's opponents called 'rights' had become ‘power’. Edmund Burke had been the first to call attention to the relationship of aggregated rights to power but it was Marx who saw through the natural rights theory in the industrial situation to recognize that it really meant ‘command’: ‘the work of directing, superintending and adjusting becomes one of the functions of capital....that a capitalist should command on the field of production, is now as indispensable as that a General should command on the field of battle’*
It was this that the christian humanitarians, unlike other reformers, fully understood without any accompanying apparatus of economic analysis. As Lord Shaftsbury described it, ‘over a large surface of the industrial community man has been regarded as an animal, and that not an animal of the highest order, his loftiest faculties were left prostrate, are perverted, and his life exclusively devoted to the manufacture of wealth’.
* Adam Smith also understood this, see Wealth of Nations, Everyman Edition, Vol 1, p.59.
Conflict Between Utilitarians and Evangelicals Over Factory Legislation
Conflict between utilitarianism and humanitarianism also took place over the fight for Factory legislation.
The hostility of the utilitarians to government interference did not derive from natural rights theory. Bentham and his followers would have nothing to do with natural rights. Bentham stigmatised them as '‘nonsense walking upon stilts’. He regarded the whole notion of rights anterior to and independent of society as ridiculous.
Bentham said that nature had placed us all under two masters: pleasure and pain. Pleasure is desirable for its own sake and the pleasures of any two or more persons are equally good: 'each of us is to count for one and none for more than one'. It followed that the goodness or badness of an action was to be determined by its consequences. We must examine and calculate in relation to each course of conduct the intensity and longevity of the anticipated pleasure or pain.
And, it followed that, at the social level, ‘the greatest happiness of the greatest number’ – an expression Bentham acquired from Priestley – was the determinant of what was socially good.
In its original form utilitarianism made no attempt to distinguish between the quality of pleasures. 'Pushpin is as good as poetry', Bentham said. The later utilitarianism was to gloss this by speaking of 'higher' and 'lower' pleasures; the former would always be chosen if a person were to have sufficient knowledge to assess the consequences.
This description of the utilitarian ethic and of social utility does not say anything about the liberty of the individual. The rightness of social action would seem to depend only upon whether it was in fact beneficial to society. ‘It should be reasonably clear’ Professor Robbins has written that ‘there is nothing in utilitarianism as such which implies an individualistic norm’* At the purely abstract level, it could just as easily have been maintained that State-guided regulation, humanitarian in purpose, would best maximise economic and social happiness. And yet the utilitarians were thoroughly individualistic. As long before as 1793 Bentham had written in his ‘Manual of Political Economy’ that ‘the general rule is that nothing should be attempted by government; the government ought to – ‘Be Quiet’. The utilitarians had gone back before Locke to Hobbes and saw government’s role as limited to conciliating selfish interests. Nevertheless once natural rights theory had been rejected a fundamental difficulty appeared – there was no automatic equation between social utility and competitive individual action. An explanation for this was critical.
It was the classical economists who, by showing a way by which the two could be reconciled, resolved the dilemma. ‘Henceforward’, as Tawney wrote ‘emphasis was transferred from the right of the individual to exercise his freedom, to the expediency of an undisturbed exercise of freedom to society’.*
Political economy emerged as a field of study in the latter half of the eighteenth century. It was, in the spirit of the Enlightenment, thoroughly rational. Uniformities were observed, generalisations deduced and laws were formulated. It is important to an understanding of the classical economists to remember that they saw themselves, not as advocating policies, but as announcing laws. In a letter to Malthus, David Ricardo wrote, ‘political economy, you think, is an inquiry into the nature and causes of wealth; I think it should rather be called an inquiry into the laws which determine the division of the produce of industry among the classes who concur in its formation.’
We correctly associate the beginnings of classical economics with the publication by Adam Smith of the Wealth of Nations. Nevertheless, the French physiocrats had previously made a significant contribution upon which Smith drew. In approach, Smith was utilitarian. He was concerned with the means of satisfying individual wants rather than vindicating rights. Donald Buchanan, the first editor of the Wealth of Nations, referred to the physiocrats by way of contrast, saying that ‘it may also be remarked of the French authors that, however consistently they entertain the doctrine of freedom of trade, they seem to declare it from principles of abstract right rather than general expediency’.
In effect, what Adam Smith said was that, given the appropriate framework of law and order – such that contracts are enforced and property respected – maximum economic satisfaction will be obtained by the freedom of individuals to promote their own economic activity. As consumers, citizens should be free to buy what they please. As producers or owners of the means of production they should be free to use their property in what seemed to them the most appropriate way to maximise their reward and, if labourers, they should be free to use their labour to gain the highest wages. The interests of individuals would thus be harmonised by the impersonal mechanism of the market. In his own famous statement, ‘the individual intends only his own gain but he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention.’
Smith believed that the accumulation of capital was the key to wealth and that with the increase in wealth wages would rise. But he took notice of the relationship between increased working class population and the means of subsistence. ‘Every species of animal naturally multiplies in proportion to the means of their subsistence’. Because of this Smith believed that a ‘liberal reward’ of labour would tend to bring about this multiplication. Twenty years later this was to become a base for classical economics. In 1798 Thomas Malthus published the first edition of his Essay on Population. In it he painted a gloomy picture in which the wages of labourers could never rise above what was needed for their subsistence or otherwise they would multiply to the point, where without a reduction to the level of subsistence, large numbers would die from want.
David Ricardo took Malthus's subsistence theory as the foundation for the theory of production and distribution elaborated in his 'Principles of Political Economy and Taxation'. Ricardo formulated a rigorous analysis of wages. ‘Labour like all other things which are purchased and sold, has its natural and its market price. The natural price of Labour is that price which is necessary to enable labourers, one with another, to subsist and perpetuate their race, without increase or diminution’. Ricardo, like Smith, regarded capital accumulation, financed by savings, as the condition of economic growth. Profits therefore were necessary for growth. However, capital accumulation increased the demand for labour and would cause wages to rise above the natural price of labour, the amount necessary for subsistence. This would lead to an increase in population. As a result of wage increases the cost of production would rise and profits would fall leading to reduced savings and investment and declining growth until that in turn resulted in lower wages and a decline in the population until the economy once again reached a stationary state at the subsistence level. The most prominent classical economist between Ricardo and John Stuart Mill was Nassau Senior (1790 ‑ 1864). His Letters on the Factory Act (1837) were designed to counter proposals for reducing the twelve hour day. He advanced the ‘last hour’ theory. The employer, Senior maintained, made all his profits in the very last hour of work. If hours were reduced profits would be reduced resulting in unemployment.
Classical economists thus answered the utilitarian’s question. They had resolved the dilemma posed by the equation of utility with individual liberty. They had shown that untrammelled freedom of contract between capitalist and worker accorded with social utility. Government interference, by minimising profits, could only make matters worse. The grim world of David Ricardo was, in the words of Doctor Pangloss, the 'best of all possible worlds'. In his Principles of Political Economy, John Stuart Mill said that wages could never rise except by an increase in the aggregate funds employing labour or by a diminution in the number of competitors for hire. As anything that reduced profits would preclude the former the only possible alternative was, in Mill's opinion, that of limiting the population of the working class. ‘Discussions on the condition of the labourers, lamentations over its wretchedness, denunciations of all who are supposed to be indifferent to it ...but there is tacit agreement to ignore totally the law of wages’.*
Lord Keynes described ‘the completeness of the Ricardian victory’ as ‘something of a curiosity’ but the reasons, he said, lay in its ability to ‘explain much social injustice and apparent cruelty as an inevitable incident in the scheme of progress, and the attempt to change such things as likely on the whole to do more harm than good’. This ‘commended it to authority’ and it ‘afforded a measure of justification to the free activities of the individual capitalist (which) attracted to it support of the dominant social force behind the authority’.*
The utilitarians seemed unable to contemplate a midway position between the freedom of laissez‑faire and the dependence of status. Any regulation would mean a relationship of dependence: in John Stuart Mill's words, a relationship in which ‘the rich should be in loco parentis to the poor, guiding and restraining them like children. Of spontaneous action on their part there should be no need. They should be called on for nothing but to do their days work, and to be moral and religious’.*
What the evangelicals recognized though and what the utilitarians failed to see, was that the freedom the latter supposed to exist was purely formal. In the case of Mill himself ‑‑ perhaps the most sensitive of the utilitarians in this area ‑‑ one has only to contrast the feeling displayed in his ‘Principles’ in the chapter on ‘Slavery’, with the chapter ‘On the future of the labouring classes’.
Professor Robbins’ work, ‘The Theory of Economic Policy’, was designed to rebut the suggestion that the classical economists were personally inhumane. In this it succeeded. But what the quotations from the classical economists also demonstrated – although of this Robbins himself seemed unaware – was that they were quite unable to engage with the suffering or oppression of the working class. Nowhere in their works do we find the anger or vehemence towards the conditions of the labourer that we find in the speeches of Lord Shaftsbury or in the writings of Karl Marx.
And so, notwithstanding the contribution of the utilitarians to the abolition of slavery, the prevention of cruelty to animals, the treatment of prisoners and the treatment of colonial subjects, their humanitarianism in this field was submerged beneath the iron laws of classical economics.
* The Theory of Economic Policy, Macmillan, p.121.
* The Acquisitive Society, p.17.
* Principles of Political Economy, 1873 edit., Longmans, Green, p.216.
* The General Theory of Employment, Interest & Money, Macmillan & Co, pp.32-33.
* Mill., op.cit.