Book Reviews

Tipping the Scales

To counter Bush’s human rights violations, we must rethink how we defend human rights.

By Neal Kumar Katyal

Tagged Human Rights

Inventing Human Rights: A History By Lynn Hunt •W.W. Norton • 2007 • 320
pages • $25.95

When searching for the origins of modern human rights, one usually looks toward documents: the Declaration of Independence, the U.S. Constitution, the Bill of Rights, or perhaps the Declaration of the Rights of Man. Yet, Lynn Hunt argues, to discover where those came from, we should read eighteenth-century novels and head to the nearest art museum. In her new book, Inventing Human Rights–a learned account of a vexing and often ill-defined topic–Hunt takes readers on a journey through literature, architecture, and historical events. This tour is guided by her methodological claim that culture and, in particular, the arts can shed light on, and even explain, some of the turns of human consciousness underlying the emergence of human rights as a body of values in Western thought. So, for example, she argues that the rise of the epistolary novel, such as Jean-Jacques Rousseau’s Julie, or the New Heloise, created a path for readers to feel greater empathy and that this empathy in turn opened readers to the sort of sensibilities necessary to recognize human rights.

The breadth of Hunt’s learning–she is a past president of the American Historical Association and one of the country’s leading scholars on modern European history makes the book a thoroughly enjoyable read, even for people who aren’t enthralled by the topic of human rights per se. In a work that will inevitably raise comparisons to Michel Foucault’s landmark history of the prison, Discipline and Punish, Hunt casts the modern aversion to torture against a wide variety of cultural rather than explicitly political influences, such as the change in home architecture in France, the rise of circuit-walk gardens in England, and the boom in portraits of ordinary subjects, all of which altered the way people saw their bodies and those of others. In the same way that Foucault brought numerous cultural influences to bear in his understanding of punishment, Hunt’s narrative is sprinkled with fascinating tidbits about Europe from the seventeenth to the nineteenth centuries. She then reads these developments against key moments in human rights history–such as the torture and execution of French Protestant Jean Calas in 1762–claiming that the changes in conception of the body and mind rendered by changes in culture ultimately altered the way people understood the value of the human body, and thus the venality of torture.

While Hunt’s method is enjoyable to read, it is occasionally frustrating to contemplate. Her catholic approach to source material often leads her to make some rather unusual and undefended substantive claims. For example, one argument she repeatedly makes is that historical events can be seen as the product of a “biological” change in people’s psyches. “My argument,” she writes, “depends on the notion that reading accounts of torture or epistolary novels had physical effects that translated into brain changes and came back out as new concepts about the organization of social and political life.” There is a lot that is problematic here. For one thing, there is just no way to know whether reading literature like Julie, or the New Heloise actually produced biological changes in people, as opposed to temporary changes in their consciousness. (Modern work in social norms also suggests that belief structures trickle down, so that readers may influence the attitudes of non-readers, who in turn influence a new set of non-readers.) For another, the bulk of her argument does not even depend on whether biological changes were produced or not. While Hunt is clearly enamored of this concept and salts her book with all sorts of biological claims (e.g., empathy is “rooted in the biology of the brain”), her central contentions center around the gestalt of the period, not upon a biological rootedness of belief.

Hunt is at her best when painting a picture of Europe during this time period, and her book is highly original. Unfortunately, the last section of Inventing Human Rights is a rush-job on the twentieth century and contemporary conceptions of human rights. It has the feel of something tacked on at the end, perhaps prompted by an editor’s suggestion to try to make the book more “relevant” for today’s reader. This last part fails, revealing an insecurity about the book’s relevance to the modern condition–and it’s an insecurity that is somewhat well-founded. Hunt’s reading of human rights works as a historical exercise but fails to account for many modern problems–most significantly, the deep tension between liberty- and equality-based human rights claims. Particularly today, when the transportation revolution and modern weapons of destruction have created new technological capabilities for massive threats to our security, purely liberty-based arguments are unlikely to resonate. For those interested in crystallizing, defending, and extending human rights guarantees, it is the language of equality, not liberty, that offers the most promise.

As Hunt recognizes in the first pages of her book (but does not go on to discuss), the roots of “human rights” include claims of both liberty and of equality, drawing upon the French Declaration of the Rights of Man in 1789 and the 1948 UN Universal Declaration of Human Rights. But the book is not attentive to the ways in which these two conceptions of human rights often conflict. As Harvard Law Professor Charles Fried has eloquently argued in his recent book, Modern Liberty and the Limits of Government, equality claims are often at war with liberty claims because the search for equality often involves infringements upon personal liberty. Ignoring this tension leaves one scratching his head as to why liberty claims have not resonated. Hunt, for example, tells a wonderful narrative about a “conceivability matrix” for group rights, where rights to Protestants ultimately led to rights for the next most conceivable class (Jews), and rights for Jews led to rights for blacks, and rights for blacks led to rights for women. But she then goes on to recognize that liberty claims have been weakened, most powerfully, she argues, by those who are attracted to the idea of violence, so much so that “[n]ew modes for gaining empathetic understanding opened the way to a sensationalism of violence.”

Such a position, however, ignores the fact that discourses on human rights have shifted from discussions about liberty to those about equal rights. The civil rights movement and court cases like Brown v. Board of Education have left us a legacy in which equality-based conceptions of rights are woven into the modern fabric of consciousness; we readily accept, for example, limits placed on property rights to reach anti-discrimination goals. Human rights, in this view, are not so much about a right to do whatever we please but a right to be treated equally by society. And in this century, fears of terrorism, asymmetric warfare, and horrible biological pandemics make it even harder for us to understand how personal liberty should fare. In other words, in a society faced with catastrophic threats, it seems unreasonable to insist on absolute claims to liberty.

Thus the weakening of liberty is not necessarily a glorification of violence; indeed, sometimes it is itself conceived as a way to prevent even more violence from occurring. How else to explain the fact that, despite the cultural prohibition on torture that Hunt identifies, torture has been a component of U.S. policy with substantial public support? Torture is celebrated on TV shows like Fox’s “24” as a means of getting information from terrorists, and academics speak of “ticking time bomb” scenarios that persuade many that torture is the right course of action in those settings. It might be plausible to say that these views are “unenlightened,” but they are not necessarily ones that involve glorifications of violence for its own sake.

Abstract concepts of human rights must be made concrete if we want them to guide us in modern circumstances like a twenty-first century of terrorists and weapons of mass destruction. But to do so requires a conversation about what we think the limits of decency are, something that is both deeply contested and poorly understood. For that reason, it is not surprising that equality-based reasoning–and not the language of individual liberty–has taken hold.

Does this mean that liberty-based human rights claims have no place in modern society? No. But they must be recalibrated–something at least partially achievable by re-approaching the relationship between liberty- and equality-based claims. Take the debate over torture. The liberty perspective declares certain government conduct, such as waterboarding, impermissible. The equality perspective, by contrast, assumes at the outset that much of what is and isn’t permissible in post–September 11 America is deeply contested at present. Instead of prescribing a substantive standard, the equality claim is that whatever standard the government picks should be applied in the same way to everyone. If the government permitted waterboarding only upon African Americans, for example, that would run afoul of equality norms–those suspected of the same offense (or who possess the same information) should receive the same treatment. The same should go, the equality perspective contends, for American citizens and aliens, for Catholics and Muslims, and so on.

Yet recent government action, in the wake of the horrible attacks of September 11, has mocked even this perspective by pursuing policies that infringe on particular classes of people, namely non-citizens. This trend began with the president’s ill-fated November 13, 2001, Military Order to establish military commissions to try suspected war criminals. The order only applied to foreigners; American citizens were exempt from that backward trial system. Justifying this policy, then–Attorney General John Ashcroft told Congress, “To those who pit Americans against immigrants, citizens against non-citizens, to those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists for they erode our national unity and diminish our resolve ” They give ammunition to America’s enemies and pause to America’s friends. They encourage people of good will to remain silent in the face of evil.”

After the Supreme Court struck down the military tribunal order in Hamdan v. Rumsfeld, Congress passed the Military Commissions Act, which followed the same alien/citizen distinction. As such, that act shunts the millions of green-card holders and some five billion people across the planet into a different, and far inferior, trial procedure than that which American citizens face. Since at least the ratification of the Fourteenth Amendment’s equality guarantee, such legislation has never been placed in the United States Code. In an era of global constitutionalism, such rank discrimination is particularly suspect.

So why haven’t the administration’s critics been successful? Part of the problem is that government critics too often fall back on liberty-based claims, at a time when such claims are unstable in a rapidly shifting geopolitical and technological environment. Instead of focusing only on what tactics are used, human rights advocates might do better to focus on to whom such tactics are applied. If the government decides to use torture, or military tribunals, then it should apply the same standard across the board, to citizens and aliens alike.

As long as human rights advocates continue to argue against such abuses on individual-liberty grounds, they will be arguing past their opponents–and fighting what will often be a losing battle before a security-conscious public already steeped in decades of equality-based human rights rhetoric. The question they should ask, then, is whether the government’s actions are evenhanded or not. And, surprisingly, such argumentation will likely promote liberty, albeit indirectly. After all, some of our most influential jurists have been deep proponents of the equality principle precisely because it provides a bulwark against overly burdensome violations of liberty. Justice Antonin Scalia, for example, has argued powerfully that when legislation has to apply to all persons equally, often it will be a fairer product because the voting population can protect the powerless: “Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.” Justice Scalia’s words track those of Justice Robert Jackson, who wrote after World War II that

There is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally ” nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected.

When the boundaries of liberty are uncertain, therefore, sometimes ensuring that government action is evenhanded is the best way to promote personal liberty, since infractions that touch everyone equally will provoke the most widespread reaction. To be sure, the flipside of this is that sometimes the pursuit of evenhandedness can become a tool by which government can restrict liberty–something about which we must be persistent and vigilant.

Hunt’s book is ultimately successful in its goals: It provides a charming and original reading of the origins of human rights. But it is disappointing that her account, while dealing with an issue so relevant today, falls short as it gets closer to the present. For readers wanting to understand the modern condition, equality will loom at least as large as liberty, and the twists and turns of equality over the past half-century should give anyone pause about whether liberty-based human rights is a stable foundation for the future.

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Neal Kumar Katyal is Professor of Law, Georgetown University Law Center. He recently won the United States Supreme Court case Hamdan v. Rumsfeld, which concerned the human rights of Guantanamo Bay detainees.

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