Ch. 1.1. Human Rights and the Rejection of Torture

(Hunt, pp. 22-31, 108-12.)

Human Rights and “The Rights of Man”

During the eighteenth century, in English and in French, “human rights,” “rights of mankind,” and “rights  of humanity” all proved to be too general to be of direct political use. They referred to what distinguished humans from the divine on one end of the scale and from animals on the other, rather than to politi­cally relevant rights such as freedom of speech or the right to participate in politics.

While English speakers continued to prefer “natural rights” or just plain “rights” throughout the eighteenth century, the French invented a new expression in the 1760s: “rights of man” (droits de l’homme). “Natural right(s)” or “natural law” (droit naturel has both meanings in French) had longer histories going back hundreds of years, but perhaps as a consequence, “natural right(s)” had too many possible meanings. It sometimes meant simply making sense within the traditional order.

“Rights of man” gained currency in French after its appearance in Jean-Jacques Rousseau‘s Social Contract of 1762, even though Rousseau gave the term no definition. It soon became a common term, and other Enlightenment writers picked it up in the 1770s and 1780s. Before 1789, “rights of man” had little crossover into Eng­lish. But the American Revolution prompted the French Enlight­enment champion Marquis de Condorcet to make a first pass at defining “the rights of man,” which for him included security of person, security of property, impartial and fair justice, and the right to contribute to the formulation of the laws. In his 1786 essay “On the Influence of the American Revolution  on Europe,” Condorcet explicitly linked the rights of man to the American Revolution.

When the language of human rights emerged in the second half of the eighteenth century, there was at first little explicit definition of those rights. Rousseau offered no  explanation  when he used the term “rights of man.” The English jurist William Blackstone, in his Commentaries on the Laws of England (1765-69), defined them as, “the natural liberty of mankind,” that is, the “absolute rights of man, considered as a free agent, endowed with discernment to know good from evil.” Most of those using the phrase in the 1770s and 1780s in France referred to the rights of man as if they were obvious and needed no justification or definition; they were in other words self-evident. No one offered a precise list of those rights before 1776, the date of George Mason‘s Virginia Declaration of Rights.

How Rights Became Self-Evident

 Human rights are difficult to pin down because their definition, indeed their very existence, depends on emotions as much as on reason. The claim of self-evidence relies ultimately on an emo­tional appeal; it is convincing if it strikes a chord within each person. Moreover, we are most certain that a human right is at issue when we feel horrified by its violation.

Underpinning these new notions of liberty and rights was a set of assumptions about individual autonomy. To have human rights, people had to be perceived as separate individuals who were capable of exercising independent moral judgment; as Black­stone put it, the rights of man went along with the individual “considered as a free agent, endowed with discernment to know good from evil.” But in the eighteenth century (and indeed, right up to the present), all “people” were not imagined as equally capable of moral autonomy. Two related but distinct qualities were involved: the ability to reason and the independ­ence to decide for oneself. Both had to be present if an individual was to be morally autonomous.

Children and the insane lacked the necessary capacity to reason, but they might someday gain or regain that capacity. Like children, slaves, servants, the prop­ertyless, and women lacked the required independence of status to be fully autonomous. Children, servants, the propertyless, and perhaps even slaves might one day become autonomous, by growing up, by leaving service, by buying property, or by buying their freedom. Women alone seemed not to have any of these options; they were defined as inherently dependent on either their fathers or husbands.

Yet the newfound power of empathy could work against even the longest held prejudices. In 1791, the French revolution­ary government granted equal rights to Jews; in 1792, even men without property were enfranchised; and in 1794, the French government officially abolished slavery. Neither autonomy nor empathy were fixed; they were skills that could be learned, and the “acceptable” limitations on rights could be-and were­ challenged. Rights cannot be defined once and for all because their emotional basis continues to shift, in part in reaction to declarations of rights. Rights remain open to question because our sense of who has rights and what those rights are constantly changes. The human rights revolution is by definition ongoing.

Autonomy and empathy are cultural practices, not just ideas, and they are therefore quite literally embodied, that is, they have physical as well as emotional dimensions. Individual autonomy hinges on an increasing sense of the separation and sacredness of human bodies: your body is yours and my body is mine, and we should both respect the boundaries between each other’s bodies. Empathy depends on the recognition that others feel and think as we do. Human rights depend both on self-possession and on the recog­nition that all others are equally self-possessed. It is the incom­plete development of the latter that gives rise to all the inequalities of rights that have preoccupied us throughout all history.

But there was a spurt in the development of these practices in the second half of the eighteenth century. The absolute authority of fathers over their children was questioned. Novels and newspapers proliferated, making the stories of ordinary lives accessible to a wide audience. Tor­ture as part of the judicial process and the most extreme forms of corporal punishment both came to be seen as unacceptable. All of these changes contributed to a sense of the separation and self-possession of individual bodies, along with the possibility of empathy with others.

Consider, for example, torture. Torture, that is, legally authorized torture to get confessions of guilt or names of accom­plices, became a major issue after Montesquieu attacked the practice in his Spirit of Laws (1748). After Montesquieu, Voltaire and many others would join the campaign, including the Italian jurist Cesare di Beccaria, whose 1764 book On Crimes and Punishment became perhaps the most influential statement of the new views. By the 1780s, the abolition of torture and barbarous forms of corporal punishment had become essential articles in the new human rights doctrine.

Changes in reactions to other people’s bodies and selves pro­vided critical support for the new secular grounding of political authority. Although Jefferson wrote that “their Creator” had endowed men with their rights, the role of the Creator ended there. Government no longer depended on God, much less on a church’s interpretation of God’s will. “Governments are insti­tuted among Men,” said Jefferson, “to secure these Rights,” and they derive their power “from the Consent of the Governed.” Similarly, the French Declaration of 1789 maintained that “The principle of all sovereignty rests essentially in the nation.” Political authority, in this view, derived from the innermost nature of individuals and their ability to create community through consent.